Bates v Lloyd [2005] NSWSC 1253

New South Wales Supreme Court

Bates v Lloyd [2005] NSWSC 1253 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 2 December 2005

JUDGMENT DATE : 5 December 2005

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Defendant ordered to pay plaintiff's costs of motion for enforcement of order on indemnity basis.

CATCHWORDS : PROCEDURE [567] - Costs - Departing from the general rule - Conduct of parties - Demand, offer and consent - Failure to ask for consent before process issued.

Supreme Court Rules 1970 Part 40 r 3, Part 42 r 6 LEGISLATION CITED : Uniform Civil Procedure Rules 2005 rr 36.4, 40.6

Eagle Star Trustees Limited v Tai Administration Pty Ltd (No 2) NSWSC Young J 30 October 1990 unreported Glandon Pty Ltd v Strata Consolidated Pty Ltd NSWCA Kirby P 29 December 1988 unreported CASES CITED : Kinsela v Metropolitan Mutual Provident Building and Investment Association (1887) 8 NSWLR 277 Moore v Gannon (1915) 32 WN(NSW) 60 Robertson and Son v Perkins and Co Ltd (1886) 2 QLJ 173

Philip William Bates (P) PARTIES : Jocelyn Estelle Lloyd (D)

FILE NUMBER(S) : SC 3982/93

M S Campbell (P) COUNSEL : E A Cohen (D)

Autore & Associates (P) SOLICITORS : Terence Jessop (D)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

MONDAY, 5 DECEMBER 2005

3982/93 PHILIP WILLIAM BATES v JOCELYN ESTELLE LLOYD JUDGMENT 1 HIS HONOUR: This was a suit in which the plaintiff sought the removal of a Wallangarra gum tree from the defendant's property, which was adjacent to a property that the plaintiff owned at Darlington. The matter came on for trial in the year 2000 before me, but was settled. A central feature of the settlement was that the gum tree was to be removed by the defendant and an order was made by consent to that effect. 2 The gum tree was not removed until May 2005, after the plaintiff had taken out a motion to punish the defendant for contempt of court for disobedience of the order. In view of the subsequent compliance with the order, the plaintiff does not seek to proceed with the motion for contempt, but asks for the costs of that motion on the indemnity basis, because it was not until it was instituted that the order was complied with. The defendant objects on various grounds to paying the costs of the motion. 3 The relevant history of the matter is as follows. Prior to the hearing in July/August 2000, the plaintiff's then solicitors obtained a letter from the South Sydney City Council dated 14 June 2000 indicating that the Council's permission would be given to the removal of the tree, despite its Tree Preservation Order, if the removal were ordered by the Court. That letter was put into evidence. The orders disposing of the proceedings were made by consent on 3 August 2000. The relevant order was as follows: "4 The Wallangarra gum tree, referred to in the Deed of Settlement attached hereto, be removed in accordance with clause 2 of that Deed."