Morris v Hutchison (No 2) [2019] NSWLEC 189

Land and Environment Court New South Wales

Medium Neutral Citation: Morris v Hutchison (No 2) [2019] NSWLEC 189 Hearing dates: 3 December 2019 Date of orders: 09 December 2019 Decision date: 09 December 2019 Jurisdiction: Class 8 Before: Moore J Decision: See orders at [67] Catchwords: COSTS - application by Applicant to vary and expand upon costs order proposed in primary judgment - application for indemnity costs based on non‑acceptance of offer of compromise - offer incapable of lawful implementation if accepted - not a valid offer - no basis to award indemnity costs - application for costs order against Second Respondent - no proper basis to make costs order against Second Respondent - submissions that costs for substituted performance application to implement Order (1) of primary judgment should not be on the indemnity basis and that charged elements were excessive - submissions rejected - costs of substituted performance application for implement Order (1) of primary judgment appropriate to be ordered on the indemnity basis - appropriate to make a gross sum costs order for these costs - gross sum costs order made - partial success for both parties in costs proceedings - appropriate that there be no order for costs of costs proceedings Legislation Cited: Civil Procedure Act 2005, s 98(4)(c) Mining Act 1992, s 175 Uniform Civil Procedure Rules 2005, r 40.8 Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Morris v Hutchison [2019] NSWLEC 164 Project Blue Sky v ABA [1998] 194 CLR 355; [1998] HCA 28 Ross v Lane Cove Council [2014] NSWCA 50 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Trade Practices Commission v Nicholas Enterprises Pty Ltd and others (1979) 28 ALR 201 Texts Cited: NSW Government Gazette of Friday 12 June 2015. The extract, being pages 1658 to 1661 Category: Costs Parties: Shane Leslie Morris (Applicant) Owen Hutchison (First Respondent) Justin Hawkins (Second Respondent) Representation: Counsel: Ms F Ashworth, barrister (Applicant) Mr D Stretton, barrister (Respondents)