Michelle Lo & Anor v James Saville Irevach & Anor [2007] NSWSC 1166

New South Wales Supreme Court

CITATION : Michelle Lo & Anor v James Saville Irevach & Anor [2007] NSWSC 1166

HEARING DATE(S) : 17/10/2007

JUDGMENT DATE : 17 October 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : The Summons is dismissed. The plaintiff is to pay the costs of the Summons.

CATCHWORDS : Proceedings dismissed with costs - said to be interlocutory decisions - construction of Court rule concerning enforcement of costs orders

LEGISLATION CITED : Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)

Michelle Lo PARTIES : Joseph Lo James Saville Irevach Kaylene Gai Irevach

FILE NUMBER(S) : SC 13483/07

COUNSEL : In person (Pl) Mr P. Marsh (Def's)

SOLICITORS : Paul Marsh (Def's)

LOWER COURT JURISDICTION : Costs Assessment Review Panel

LOWER COURT FILE NUMBER(S) : 1831/2006

LOWER COURT JUDICIAL OFFICER : J. A. McGruther / M. W. Robinson

LOWER COURT DATE OF DECISION : 13/06/2007

- 3 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MALPASS AS J

17 OCTOBER 2007

13483/07 Michelle Lo & Anor v James Saville Irevach & Anor

JUDGMENT 1 HIS HONOUR: The plaintiffs and the defendants are neighbours. They fell into dispute concerning an easement. The plaintiffs commenced proceedings in this Court. 2 The initial proceedings were No.4246/2002. In those proceedings, the plaintiffs sought both an injunction and damages. An Amended Summons came to hearing before Palmer J. 3 Palmer J refused the application for an injunction. He recorded that the claim for damages had been formally abandoned. He then dismissed the Amended Summons with costs. 4 The plaintiffs then sought to bring an appeal out of time. The appeal proceedings were No.40233/2003. On 16 April 2004, the Summons for Leave to Appeal came before Giles and Hodgson JJA. The Court of Appeal refused an application for extension of time and leave to appeal. The Summons was dismissed with costs. An application for a review of a decision of the Registrar was also dismissed with costs. 5 The defendants applied to have the costs in those two proceedings assessed. The assessment was referred to a costs assessor (Alexandra Hutley). The plaintiffs resisted the assessment, inter alia, on the basis that the decisions in both proceedings were interlocutory. They relied on the provisions of Part 52 r9A (the rule) of the now repealed Supreme Court Rules 1970 (NSW). At the relevant times, it read as follows:- "(1) Where, before the conclusion of any proceedings, the Court makes an order for payment of costs or a motion is refused with costs, a party may not, except with the leave of the Court, make an application to proceed with the taxation of the costs until after the conclusion of the proceedings."