Sun v Pager

The plaintiff, Ms Xia Hua Sun, and the defendant, Ms Natalie Pager, own adjoining properties in Vaucluse. I will call Ms Sun’s property “number 56” and Ms Pager’s property “number 58”.

Ms Sun commenced these proceedings on 7 November 2023, seeking the following orders:

By Notice of Motion filed on 6 March 2023, Ms Sun sought, on an interlocutory basis, a mandatory injunction requiring Ms Pager to facilitate access to number 58, “for the purpose of [Ms Sun] arranging the installation of a suitable building system to prevent water entering the interface between,” number 58 and number 56, “being the common boundary wall.”

Thus, Ms Sun was seeking, on an interlocutory basis, relief that was, in practical terms, closely approximate to the final relief sought.

On 21 April 2023, Ball J listed Ms Sun’s motion for hearing on 1 June 2023.

On 29 May 2023, Ms Sun applied for a vacation of the hearing date. On that occasion, Mr Corsaro of Senior Counsel appeared for Ms Sun and had this exchange with Ball J:

Ball J also indicated that 3 and 4 August 2023 were available for a final hearing of the matter. Mr Corsaro said “we’ll take the 3rd and 4th your Honour”. However, as Ms Pager’s legal representative was not able to say whether that date was convenient, Ball J vacated the hearing date and listed the matter in the Friday directions list on 2 June 2023.

On that occasion, Ms Sun’s solicitor appeared and, notwithstanding what Mr Corsaro had said a few days earlier, sought a hearing date for this motion.

Ms Sun’s solicitor and his Honour had this exchange:

Thus, his Honour set down Ms Sun’s Notice of Motion for hearing today.

Now, perhaps with the benefit of the advice from Mr Salama, who has been recently retained, Ms Sun does not press for interlocutory relief.

Mr Salama and Mr Hand, who appears for Ms Pager, have agreed a timetable to ready the matter for final hearing and have requested that the matter be placed into the directions list this coming Friday for allocation of a hearing date if that is appropriate.

What remains in dispute is the question of the costs of the motion.

Surprisingly, bearing in mind what I have set out, Ms Sun resists an order that she pay the costs of the motion at all. Mr Salama suggested that if that were not an appropriate order then an alternative might be that the costs of the motion be costs in the cause.

Ms Pager seeks an order that Ms Sun pay her costs of the motion, including on an indemnity basis, from 1 June 2023. I am of the opinion that is an appropriate order to make.

The application for interlocutory relief was ill advised in the first place, and the decision of the plaintiff, no doubt based on legal advice, to persist with an application for interlocutory relief when offered a final hearing date this week is sufficient, in my opinion, to enliven the Court’s jurisdiction to order indemnity costs.

I also propose to make orders to ensure those costs are paid forthwith.

I make the following orders. I order that the plaintiff pay the defendant’s costs of the plaintiff’s Notice of Motion of 6 March 2023, including on an indemnity basis from 2 June 2023. I order that those costs be assessed as a gross sum under s 98(4) of the Civil Procedure Act 2005 (NSW) and be payable forthwith. I direct the solicitors for the defendant to provide my associate, by 5pm today, with an assessment of the defendant’s actual costs of the motion. I order that the plaintiff pay that sum or such other sum as the Court orders within the time specified in the Court’s further order. Finally, I order that if that sum is not paid by that time, so by the time specified in that order, the proceedings be stayed.