Thomas & Anor v Holmes & Anor (No 3) [2017] NSWLEC 156

Land and Environment Court New South Wales

Medium Neutral Citation: Thomas & Anor v Holmes & Anor (No 3) [2017] NSWLEC 156 Hearing dates: 6 November 2017 Date of orders: 22 November 2017 Decision date: 22 November 2017 Jurisdiction: Class 2 Before: Moore J Decision: 1 The costs application made on behalf of the Second Applicant is dismissed as incompetent; 2 The costs application made by the First Applicant is dismissed; and 3 The First Applicant is to pay the Respondents' costs of this costs application as agreed or assessed. Catchwords: COSTS - status of First Applicant to make costs application or give evidence on behalf of the Second Applicant - First Applicant purported to make costs application on behalf of the Second Applicant - First Applicant purported to give evidence on behalf of the Second Applicant - First Applicant not lawyer or a director of the Second Applicant - First Applicant not authorised by the Board of the Second Applicant to represent it as the Company's agent pursuant to the Land and Environment Court Act and Rules - costs application purportedly made on behalf of the Second Applicant incompetent and dismissed COSTS - very limited success of Applicants in substantive proceedings - no basis for apportioned costs order even if a "costs follow the event" basis applied COSTS - "fair and reasonable" costs test applies - no unreasonable conduct by the Respondents leading up to the commencement of the proceedings - the Respondents did not act unreasonably in the conduct of the proceedings - no basis to award costs to First Applicant COSTS - costs of costs application usually "follow the event" of the costs application - Calderbank offer by Respondents to First Applicant concerning costs of the costs application - Calderbank offer genuine offer of compromise - Calderbank offer not reasonable as the length of time the offer was open for acceptance was too short in the circumstances - Respondents' indemnity costs application rejected - First Applicant ordered to pay the Respondents' costs of the costs application on an "as agreed or assessed" basis Legislation Cited: Conveyancing Act 1919 Dividing Fences Act 1991, s 13A Interpretation Act 1987, s 21(1) Land and Environment Court Act 1979, ss 18(g) and 63 Land And Environment Court Rules 2007, rr 3.7(1)(b), 3.7(3)(c), 3.7(3)(d) and 7.7 Trees (Dispute Between Neighbours) Act 2006, ss 7, 9 and 12 Uniform Civil Procedure Rules 2005, rr 7.1(2)(a), 42.1, Sch 2 Cases Cited: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 Cachia v Hanes (1994) 179 CLR 403 Calderbank v Calderbank [1975] 3 All ER 333 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 Grant v Kiama Municipal Council [2006] NSWLEC 70 Latoudis v Casey (1990) 170 CLR 534 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Thomas & anor v Holmes & anor [2017] NSWLEC 1192 Thomas & anor v Holmes & Anor (No 2) [2017] NSWLEC 1443 Category: Costs Parties: Mr Peter Thomas (First Applicant) Amatrin Pty Ltd (Second Applicant) Mr Glenn Holmes (First Respondent) Ms Kimberley Holmes (Second Respondent) Representation: Counsel: First Applicant in person Dr J Smith, barrister (Respondents)