Hopkins v Quinn (No 2) [2017] NSWLEC 76

Land and Environment Court New South Wales

Medium Neutral Citation: Hopkins v Quinn (No 2) [2017] NSWLEC 76 Hearing dates: 23 May 2017 Date of orders: 26 June 2017 Decision date: 26 June 2017 Jurisdiction: Class 4 Before: Moore J Decision: See conclusion at [136] Catchwords: COSTS - Applicant commences Class 4 civil enforcement proceedings - Respondents' cross-claim pursuant to Encroachment of Buildings Act 1922 in Class 3 - consideration of regime within which costs are appropriate to be determined - costs appropriate to be determined on the basis applicable in Class 4 proceedings COSTS - Calderbank offer by Applicant - offer rejected by Respondents - Applicant seeks indemnity costs based on offer said to propose outcome more advantageous to Respondents than result of the proceedings - tests to be applied - outcome of proceedings more favourable to Respondents than terms of offer - indemnity costs rejected COSTS - Applicant not completely successful - Respondents propose apportionment of costs - presumption costs follow the event in Class 4 proceedings - apportionment not appropriate - Applicant awarded costs - costs to be as agreed or assessed COSTS - Applicant proposes variation to an aspect of the determined outcome in the primary proceedings - no proper procedural basis for doing so - no evidentiary basis for doing so - abuse of process - appropriate to award costs of this element of the proceedings to the Respondents - abuse of process warrants these costs to be on an indemnity basis COSTS - application to reopen - Respondents sought reopening on four aspects of matters determined - reopening permitted on only three of four matters - Respondents failed on dominant matter in reopening proceedings but obtained some beneficial amendments on remaining lesser matters - Respondents propose that each party to bear their own costs of the reopening application - presumption that costs follow the event - partial success warrants departure with limited apportionment of costs - apportioned costs in favour of the Applicant - Respondents to pay 75% of the Applicant's costs of the reopening application - costs to be as agreed or assessed Legislation Cited: Civil Procedure Act 2005, s 98 Encroachment of Buildings Act 1922 Environmental Planning and Assessment Act 1979, s 123 Uniform Civil Procedure Rules 2005, Pt 42 r 1 Cases Cited: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Calderbank v Calderbank [1975] 3 WLR 586 Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145 Hopkins v Quinn [2016] NSWLEC 163 Hopkins v Quinn [2017] NSWLEC 31 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Category: Costs Parties: John Hopkins (Applicant and First Cross-Defendant) Sally Hopkins (Second Cross-Defendant) David Quinn (First Respondent and First Cross-Claimant) Maria Quinn (Second Respondent and Second Cross-Claimant) Representation: Counsel: Mr N Eastman, barrister (Applicant and Cross-Defendants) Mr M Hall SC/Mr G Stapleton, barrister (Respondents and Cross-Claimants)