Land and Environment Court New South Wales Medium Neutral Citation: Hopkins v Quinn (No 3) [2017] NSWLEC 101 Hearing dates: 30 June 2017; competing Short Minutes of Order on 4 July 2017 (Hopkins' version) and 5 July 2017 (Quinns' version); and (9 August 2017) finalised, settled survey diagram (Annexure A) and works plan (Annexure C) Date of orders: 17 August 2017 Decision date: 17 August 2017 Jurisdiction: Class 4 Before: Moore J Decision: See Orders commencing at [30]; [30](7) amended according to the slip rule on 21 August 2017 Catchwords: ORDERS - differences between parties as to terms of dispositive orders for the principal proceedings - determination of appropriate terms of contested orders - orders made Legislation Cited: Uniform Civil Procedure Rules 2005, Pt 42 r 1 Cases Cited: Hopkins v Quinn [2016] NSWLEC 163 Hopkins v Quinn [2017] NSWLEC 31 Hopkins v Quinn (No 2) [2017] NSWLEC 76 Category: Consequential orders (other than 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 G Stapleton, barrister (Respondents and Cross‑Claimants) Solicitors: Hones Lawyers (Applicant and Cross-Defendants) Sattler & Associates (Respondents and Cross‑Claimants) File Number(s): 153093 of 2016 Publication restriction: No TABLE OF CONTENTS Orders Judgment 1. HIS HONOUR: I have given three decisions in the dispute between Mr Hopkins and Mr and Ms Quinn concerning, principally, the construction, by Mr Quinn, of a shotcrete retaining wall in a fashion that encroached on the neighbouring property owned by Mr Hopkins' wife. These decisions were: * Hopkins v Quinn [2016] NSWLEC 163 (the principal, merits decision - 24 November 2016); * Hopkins v Quinn [2017] NSWLEC 31 (the reopening application by Mr and Ms Quinn - 21 March 2017); and * Hopkins v Quinn (No 2) [2017] NSWLEC 76 (the costs decision - 26 June 2017). 1. All relevant factual matters are set out in my earlier judgments. 2. A short hearing was held on 30 June 2017 to address the question of the form of final orders to dispose of the proceedings. At the conclusion of that hearing, the parties were to settle the form of the dispositive orders in light of the guidance given during the course of that hearing. They were also required to settle an agreed survey diagram to permit registration of the required easement (Annexure A) to the orders at the conclusion of this decision and a settled plan of works (Annexure C) to the orders at the conclusion of this decision. These documents were not provided to me until 9 August 2017 - hence the delay in finalising these proceedings. 3. The parties had largely agreed on the form of final orders to be made. There were, however, a small number of matters that remain in dispute between the parties. The areas that remain in dispute are to be gleaned from the competing sets of proposed final orders provided to me. 4. To understand that which is set out below, it is to be observed that Dr Daniel Martens was the engineering expert retained by Mr Hopkins for the purposes of the proceedings. Dr Martens is the principal of Martens & Associates, consulting engineers. The nature of the remedial works proposed by Dr Martens, and by Mr Bennett, the engineering expert retained by the Quinns, was dealt with in the first and second of the above decisions. For the reasons there explained, the additional remedial engineering works proposed by Dr Martens were adopted by me as appropriate. Carrying out of all the remedial works requires to be dealt with in these final orders. 5. Some of the remedial works specified by Dr Martens are set out in proposed Order (8). The terms of the remedial works specified in the order are not in contention between the parties, as they arise from the terms of my determination. However, the first matter in dispute between the parties concerns the introductory portion of Order (8). The version proposed on behalf of Mr and Mrs Hopkins is in the following terms: In addition to the Remedial Works set out in the Bennett Plan, the First and Second Respondents are to ensure that the Remedial Works include the following additional remedial works (Additional Remedial Works) and/or any direction issued by Dr Martens. 1. The proposed orders on behalf of Mr and Mrs Quinn accept this wording, with the deletion of the words "and/or any direction issued by Dr Martens". 2. The clear intention of the version proposed for Mr and Mrs Hopkins is to ensure that, as a consequence of that which is proposed in Order (11) concerning supervision and certification of the remedial works and the additional remedial works, Dr Martens is to supervise the carrying out of the Remedial Works and the Additional Remedial Works. This necessarily implies to power to give directions for the execution of those works. 3. It seems to me that neither of the proposed versions is appropriate. That proposed for Mr and Mrs Hopkins is not constrained, whilst the position proposed for Mr and Mrs Quinn is too restrictive. The appropriate concluding wording to Order (8) should be: … and/or any direction issued by Dr Martens for the implementation of the Remedial Works and the Additional Remedial Works. 1. That which is set out in the preceding paragraphs deals with the differences concerning Order (8) in the matters contained in the competing sets of orders put to me for determination. Mr Sattler, solicitor for the Quinns, has subsequently sought to make a further change by requesting the deletion of Order (8)(3). Such change is opposed by the solicitors for Mr and Ms Hopkins. Continuing to permit this matter to drag on would be entirely inconsistent with s 56 of the Civil Procedure Act 2005 requiring the just, quick and cheap resolution of the matters in dispute between the parties. As my June 2017 costs decision discloses, there has been nothing "cheap" about these proceedings. There is also little to be said in support of any "quickness". As a consequence, I instructed my Associate to e-mail the parties' legal representatives in the following terms: Dear Mr Clarke and Mr Sattler His Honour has considered the competing e-mails concerning possible amendments to Order 8(3). Order 8(3), in the terms provided to his Honour as agreed, will be made in those terms, and none other, in the absence of any application to relist the matter further to address these positions. The decision will be handed down at 9.50 am on Thursday 17 August 2017, in the originally proposed terms, subject to the matters his Honour was required to determine. Any further application to reopen on this point will need to be made by 3.00 pm on Wednesday 16 August 2017. If such an application is made, his Honour will deal with it, and such costs issues as may arise, including, if necessary, the issue of personal costs orders against legal representatives. 1. Mr Clarke advised that there would be no application to re-open on behalf of Mr and Ms Hopkins. 2. Mr Sattler indicated by e-mail at 1.00 pm on 16 August 2017 that there would be no reopening application for the Quinns seeking to delete condition 8(3). Therefore, this condition remains as proposed after the 30 June 2017 hearing. 3. The next area of dispute concerns Order (11). The version proposed for Mr and Mrs Hopkins is in the following terms: The Remedial Works and the Additional Remedial Works ordered pursuant to Order 10 are to be carried out by appropriately insured, qualified and licensed tradespersons and not by the First and Second Respondents, and are to be supervised and certified by Martens and Associates upon completion. 1. For Mr and Mrs Quinn, it is proposed that the words "supervised and" be deleted. 2. The proposed deletion advanced on behalf of Mr and Mrs Quinn is rejected. It is unrealistic to suggest that any consulting engineer will certify works of the nature proposed to be undertaken by the Remedial Works and the Additional Remedial Works as a result of these orders without having supervised the carrying out of those works. The version of Order (11) proposed on behalf of Mr and Mrs Hopkins is adopted. 3. The next area of dispute concerns payment for the services provided pursuant to Order (11). 4. Order (12) proposed for Mr and Mrs Hopkins is in the following terms: The First and Second Respondents are to pay for any supervision and certification carried out by Dr Martens within 10 days of the issuing of Dr Martens (or Martens and Associates) invoice(s) for those services. 1. The version proposed for Mr and Mrs Quinn is in the following terms: The Respondents are to pay for the supervision and certification carried out by Martens and Associates within the normal commercial terms of Martens and Associates' invoices, or 28 days, if later, for those services. 1. With respect to the version proposed for Mr and Mrs Quinn, it is to be observed that, despite their objection to "supervision" being included in Order (11), they do not object, in their proposed Order (12), to payment for such supervision. 2. Next, it is to be observed that Mr and Mrs Hopkins' version of Order (11) envisages that the supervision and certification is to be carried out by Martens & Associates but the payment proposed in their Order (12) only arises if the supervision and certification is undertaken personally by Dr Martens. The version proposed for Mr and Mrs Quinn corrects this and is, in that respect, preferred. 3. With respect to the time for payment, that which is proposed for Mr and Mrs Hopkins is unduly restrictive, whilst that proposed for Mr and Mrs Quinn, in my view, lacks clarity. The appropriate condition is to be in the following terms: The Respondents are to pay for the supervision and certification carried out by Martens and Associates within 28 days of the rendering of any invoice by Martens and Associates for those services. 1. Although, for reasons that are not apparent, the version of the orders proposed for Mr and Mrs Quinn marks up a section of Order (17), suggesting that it is a matter requiring adjudication. The two versions of this condition are in identical terms (absent the marking-up). The marking-up is, therefore, deleted from the final version of this order. 2. The final order that is in contention is Order (20), proposed for Mr and Mrs Hopkins. The proposed terms of this order are as follows: Other than Orders 21 to 24, the First and Second Respondents are to pay the applicant's costs of the proceedings, as agreed or assessed. 1. For Mr and Mrs Quinn, it is proposed that this order should read: Other than Orders 20 to 23, The First and Second Respondents are to pay the applicant's costs of the proceedings up to and including 24 November 2016, as agreed or assessed. 1. The striking out in the Quinns' version of this order should, clearly, refer to Orders (21) to (24,) as the order, in itself, is Order (20). Orders (21) to (23) reflect the outcome of my costs decision, whilst Order (24) reflects my costs determination at the conclusion of the hearing on 30 June 2017, dealing with the terms of the proposed dispositive orders 2. To the extent that there are costs arising out of these proceedings that do not fall within the scope of Orders (21) to (24), those costs which fall after 24 November 2016 have not been addressed in any submissions to me during the intervening period. 3. Absent any good reason to depart from the terms of Pt 42 r 1 of the Uniform Civil Procedure Rules 2005, costs are ordinarily presumed to "follow the event". That, for the purposes of the initial merits hearing, is the position adopted by me in the costs decision. 4. To the extent that there are "follow-on costs" from the merits decision that are not carved out in any specific fashion by Orders (21) to (24), the presumption is that, absent some appropriate reason to make an exception, those costs should also follow the event (that is, they should be awarded, on an ordinary basis, to Mr Hopkins). I can think of no reason why I should depart from that position. As a consequence, the version of Order (20) proposed for Mr and Mrs Hopkins is incorporated in the dispositive orders for these proceedings. 5. Finally, I observe that both sets of proposed orders reference Order (18) in Order (18), when Order (18) clearly intends to reference Order (19). I have made that correction in the Orders which follow. Orders 1. The Court orders that: (1) The Orders made by Craig J on 14 December 2015 are discharged. 1. The Court declares that: (2) The First and Second Respondents have breached conditions 2 and 3(a) of development consent granted to DA2014/1321 issued by Warringah Council and dated 21 July 2015 (Consent). 1. The Court further orders that: (3) Sandbagging is to be installed along the portion of the overland flow path between the garden beds and the shotcrete wall, in particular along the masonry brick wall that forms the southern edge of the overland flow path between No 9 Farnell Street, Curl Curl (No 9) and No 11 Farnell Street, Curl Curl (No 11) within 7 days of the date of this order, and is to be kept in place until completion of the Remedial Works referred to in Order (7) below and the Additional Remedial Works referred to in Order (8) below. (4) An easement that permits existing structures to remain together with the remedial works referred to in Orders (7) and (8) (the Easement), is to be prepared and registered, using LPI Form 11R, in favour of the First and Second Respondents consistent with the survey prepared by Bee & Lethbridge dated 9 June 2017 (the Survey), annexed to these Orders and marked "A", the terms of which are set out in Annexure B to these Orders. (5) The preparation of the terms and registration of the Easement in Order (4) is to be approved by the Applicant and undertaken and paid for by the First and Second Respondents. (6) The First and Second Respondents are to pay Mrs Sally Hopkins compensation in respect of the Easement in the amount of $59,446.47 within 14 days of the lodgement of the Easement with the NSW Land Property Information Office. (7) The Easement is to be limited only to existing encroachments being permitted to remain and the right to support and maintain the remedial drainage works and associated structures on the overland flow path, as set out in the drawings prepared by Mr Ted Bennett dated 13 August 2015 (revision C dated 3 April 2017) and technical drawing PS02-EZ00 prepared by Martens & Associates dated 4 August 2017 annexed to these Orders and marked "C" (Remedial Works), together with the works as set out in Order (8) below. . [as amended 21 August 2017] (8) In addition to the Remedial Works set out in the Bennett Plan, the First and Second Respondents are to ensure that the Remedial Works include the following additional remedial works (Additional Remedial Works) and/or any direction issued by Dr Martens for the implementation of the Remedial Works and the Additional Remedial Works: (1) The drainage cell behind the shotcrete wall is to: a) Have base drainage outlets created at 1.5m centres with 25mm diameters; and b) Be hydraulically connected to the internal drainage system at No. 11 Farnell Street. (2) In order to prevent further movement of the brick wall within the northern boundary and other structures on No.9 Farnell Street, high strength (at least 80 MPa) grout 'panels', with a width of approximately 150mm, are to be injected at 1.0 m centres within the void created by the drainage cell behind the shotcrete wall, such that: a) The grout provides a firm contact between the shotcrete wall in its current form and the brick wall within the northern boundary of No. 9 Farnell Street; and b) The grout is strategically placed to ensure that any subsurface water flow within the drainage cell is not significantly impeded and is drained to the drainage system for No. 11 Farnell Street. (3) Installation of the garage top slab to provide bracing for the shotcrete wall after the drainage cell behind the shotcrete has been tested and configured to properly drain. (4) The connection between the top of the shotcrete wall and the brick wall within the northern boundary of No. 9 Farnell Street is to be sealed to prevent any rainwater or stormwater ingress. (9) The First and Second Respondents are to be responsible for the ongoing maintenance of the Remedial Works as set out in the terms of the Easement. (10) Within 42 days of the making of these Orders, the First and Second Respondents are to procure, pay for and complete the carrying out of the Remedial Works and Additional Remedial Works, other than the works in Orders (8)(3) and (8)(4) with such works to be completed within 60 days of the making of these Orders. (11) The Remedial Works and Additional Remedial Works ordered pursuant to Order (10) are to be carried out by appropriately insured, qualified and licensed tradespersons and not by the First and Second Respondents, and are to be supervised and certified by Martens & Associates upon completion. (12) The Respondents are to pay for the supervision and certification carried out by Martens & Associates within 28 days of the rendering of any invoice by Martens & Associates for those services. (13) The Easement is to be lodged within 7 days after the Remedial Works and the Additional Remedial Works ordered pursuant to Order (10) are carried out. (14) Pursuant to s 5 of the Encroachment of Buildings Act 1922, the order for payment of compensation pursuant to Order (6) is to be registered, and thereafter will operate in accordance with s 5 of that Act, as a charge upon the land of No 11, until the compensation is paid in full. (15) The First and Second Respondents, in carrying out development upon No 11 pursuant to the Consent (including any modification of it), must comply and strictly abide with the terms of the Consent except as otherwise ordered pursuant to Orders (10) and (11) above. (16) Upon completion of the works on No 11 in accordance with the Consent (including any modification of it) and prior to the issue of an occupation certificate, the First and Second Respondents are to arrange and pay for a final dilapidation report (final dilapidation report) to be undertaken on No 9 by an appropriately qualified and licensed assessor, with that dilapidation report to be provided to the Applicant within 3 business days of being completed. (17) Any rectification works set out in the final dilapidation report are to be completed within 60 days of issue of the final dilapidation report. Such remedial works that are undertaken upon No 9 are to be carried out by suitably insured, qualified and licensed contractors nominated by the First and Second Respondents' Construction Works insurer and approved by Mrs Hopkins, and not carried out or approved by Mr Quinn. (18) If any insurance claim (including part of an insurance claim) for rectification of the dilapidation works set out in the final dilapidation report is rejected by the First and Second Respondents' insurance company, the liberty in Order (19) applies to approach Moore J for an order to be made addressing that, or those matters. (19) Liberty to restore is granted in the event that any issues relating to dilapidation, including the final dilapidation report, arise after the completion of construction on No 11 pursuant to the Consent that cannot be agreed between the parties. (20) Other than Orders (21) to (24), the First and Second Respondents are to pay the Applicant's costs of the proceedings, as agreed or assessed. (21) The First and Second Respondents are to pay 75% of the Applicant's costs of, and incidental to, the hearing on 10 February 2017 concerning the reopening of the proceedings, as agreed or assessed. (22). The Applicant is to pay the First and Second Respondents' costs of, and incidental to, the hearing on 28 March 2017 only in relation to the redesign of the stormwater system by Martens & Associates, on an indemnity basis. (23) Each party is to bear their own costs of, and incidental to, the hearing on 23 May 2017 concerning the costs argument. (24) The First and Second Respondents are to pay 50% of the Applicant's costs of, and incidental to, the hearing on 30 June 2017. 1. The Court notes that: (25) Mrs Hopkins' consent is given to the First and Second Respondent to carry out the Remedial Works referred to in Orders (7), (8)(1), (8)(2) and (8)(4) only, and not for any other works upon No 9. For the avoidance of any doubt, Mrs Hopkins' consent is not given to the construction of any additional structures not approved by Mrs Hopkins and Dr Martens. ********** Annexure A (121 KB, pdf) Annexure B (79.9 KB, pdf) Annexure C - second drawing added 21 Aug 17 (940 KB, pdf) Amendments 21 August 2017 - Order [30](7) amended according to Slip Rule on 21 August 2017. A second drawing was added to Annexure C. 21 August 2017 - The wording in [30](7) has been slightly changed to better reflect the effect of the orders. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 August 2017