Facts: Notice was served for excavations within 3m under s.6(1) and with an intention to build a wall on the line of junction under s.1(5). The proposed roof detail creating a trespass. Request for access to execute works was rejected. The building owners withdrew s.1(5) notice, moving the wall away from the boundary to allow them to complete the works without access and removing the trespass. The request for security of expenses under s.12(1) was rejected by the building owners surveyor. The proposed foundations were redesigned several times to remove the obligation to serve notice under s.6(1). Mr Antino submitted a cost schedule that was ignored. Mr Antino served a s.10(7) request with an offer to reduce costs by 20%, this was ignores and then served an ex-parte Award. This was ignored and a s.17 complaint laid in the Braking Magistrates Court.
Decision: The Magistrates recognised that the Summons issued against Mr Johnny was invalid due to a clerical error by the Court. Therefore the case against Mr Johnny was adjourned for lack of valid service of Summons by the Court. The Magistrates accepted Counsel’s argument that there was joint and several liability between the two parties, and that Ms Burke’s summons was validly served and therefore proceeded with the summons. Ms Burke did not attend and in her absence the Magistrates held that the ex-parte Award was valid and on sound grounds, they upheld the Award and the costs awarded by Mr Antino and awarded all his legal costs.