Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2018] NSWLEC 39

Land and Environment Court New South Wales

Medium Neutral Citation: Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2018] NSWLEC 39 Hearing dates: 25 January 2018 Date of orders: 28 March 2018 Decision date: 28 March 2018 Jurisdiction: Class 4 Before: Moore J Decision: Orders at [108] to [111]

ADDENDUM

112 As there was no communication with the Associate to Moore J by close of business on Friday 13 April 2018, the order foreshadowed in [111] has been made as the final order of the Court in these proceedings.

Amended 19 April 2018 Catchwords: COSTS - various Calderbank offers in all proceedings - no basis arising from any of these offers to support any indemnity costs order in any aspect of the proceedings COSTS - Supreme Court proceedings seeking imposition of an easement on adjoining land for creation of an Asset Protection Zone - presumption in s 88K(5) of the Conveyancing Act 1919 that the applicant for easement should pay the costs of the owner of the land proposed to be burdened by the easement - no basis to depart from that presumption - no basis to award costs on an indemnity basis - costs awarded to respondent on the ordinary basis COSTS - cross-claim in Supreme Court proceedings seeking ordinary and exemplary damages for trespass - cross-claimant successful in obtaining exemplary damages order - ordinary damages not awarded in light of outcome of Land and Environment Court proceedings - costs follow the event - costs awarded to cross-claimant on the ordinary basis COSTS - Land and Environment Court proceedings seeking removal of road erected without consent and revegetation of road corridor - applicant successful on principally contested elements - presumption that costs follow the event - no basis to depart from the presumption and apportion costs - respondents jointly and severally liable to pay applicant's costs on the ordinary basis COSTS - costs of the costs hearing - Caverstock Group Pty Limited only a party to the Land and Environment Court proceedings and played a minor part in the costs proceedings - not appropriate to make any costs order in the costs proceedings against it - costs of the costs proceedings to follow the event - Louisiana Properties Pty Ltd successful in the costs proceedings - appropriate to order Hakea Holdings Pty Ltd to pay costs of cost proceedings unless some other costs order in the costs proceedings is sought within 10 days Legislation Cited: Civil Procedure Act 2005, s 98(1) Conveyancing Act 1919, ss 88K(5) and 89 Environmental Planning and Assessment Act 1979, ss 123 and 124 Uniform Civil Procedure Rules 2005, Pt 42 r 1 Wyong Local Environmental Plan 2013 Cases Cited: 117 York Street v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 Calderbank v Calderbank [1975] 3 All ER 333 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 James v Surf Road Nominees Pty Ltd (No2) [2005] NSWCA 296 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (No 2) [2017] NSWLEC 147 Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2017] NSWLEC 37 Roads and Traffic Authority v McGregor & Anor (No 2) [2005] NSWCA 453 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Tregoyd Gardens v Jervis (1997) 8 BPR 15,845 Category: Costs Parties: Louisiana Properties Pty Ltd (Applicant in 322081 of 2016 and Respondent and Cross-claimant in 261922 of 2016 ) Hakea Holdings Pty Ltd (First Respondent in 322081 of 2016 and Applicant and Cross-defendant in 261922 of 2016) Caverstock Group Pty Limited (Second Respondent in 322081 of 2016) Central Coast Council (Third Respondent in 322081 of 2016 - submitting appearance) Representation: Counsel: Mr C Ireland, barrister (Louisiana Properties Pty Ltd) Mr T Hale SC/Mr J Tobin, barrister (Hakea Holdings Pty Ltd) Mr A Carney, solicitor (Caverstock Group Pty Limited)