Hill v Higgins [2012] NSWSC 743

Supreme Court New South Wales

Medium Neutral Citation: Hill v Higgins [2012] NSWSC 743 Hearing dates: 25 June 2012 Decision date: 05 July 2012 Before: Harrison J Decision: Mr and Mrs Higgins should pay Mr and Mrs Hill's costs of the proceedings up to and including 4.00pm on 5 May 2011. Catchwords: PROCEDURE - costs - general rule costs follow the event - costs of whole action - where offers of compromise made - Calderbank offer - whether reasonable for plaintiffs to reject offer - whether genuine offer to compromise Legislation Cited: Encroachment of Buildings Act 1922 Civil Procedure Act 2005 Cases Cited: Calderbank v Calderbank [1975] 3 WLR 586; [1975] 3 All ER 333 Hill v Higgins [2012] NSWSC 270 Category: Costs Parties: Andrew Steven Hill (First Plaintiff) Julie Hill (Second Plaintiff) Anita Michelle Higgins (First Defendant) Alan Higgins (Second Defendant) Representation: Counsel: M R Hall (Plaintiffs) J J Young (Defendants) Solicitors: Trisley Lawyers (Plaintiffs) Sparke Helmore (Defendants) File Number(s): 2009/296191

Judgment 1HIS HONOUR: I published my reasons for judgment in the principal proceedings on 27 March 2012: see Hill v Higgins [2012] NSWSC 270. I did not then deal with the question of costs. These reasons are limited to consideration of that issue. They assume a familiarity with the factual background to the litigation. 2Mr and Mrs Hill contend that they are entitled to an order for the payment of their costs of the proceedings by the defendants. They submit that they succeeded and that costs should follow the event. Mr and Mrs Higgins contend that the question of costs should be determined in the light of a letter written by their solicitor on 27 August 2010, with the result that the Hills should pay their costs up to and including 3 September 2010 on the ordinary basis and thereafter on an indemnity basis. These competing contentions are made in the context of considerable "without prejudice" and open correspondence exchanged between the parties or their lawyers over the period of the litigation, and in the context of other practical steps taken by them in attempts to achieve a solution to their dispute. It is necessary for present purposes to consider these things in some detail.