Hopkins v Quinn - [2018] NSWLEC 117

Land and Environment Court

New South Wales

Medium Neutral Citation: Hopkins v Quinn [2018] NSWLEC 117
Hearing dates: 3 July 2018
Date of orders: 08 August 2018
Decision date: 08 August 2018
Jurisdiction: Class 4
Before: Moore J
Decision:
(1) The Summons is dismissed; and
(2) Unless a party notifies my Associate by 4.30 pm on Wednesday 5 September 2018 that some other order for costs is proposed by that party, the Respondents are to pay to the Applicant’s costs up to and including 26 April 2018, as agreed or assessed, and, from 27 April 2018, the Applicant is to pay the Respondents’ costs, as agreed or assessed.

Catchwords: DEVELOPMENT - proceedings commenced pursuant to open standing provisions of the Environmental Planning and Assessment Act 1979 - development carried out on adjoining property without owner’s consent - carried out in breach of court orders - actual and potential functional deficiencies in works resolved - certification provided to applicant as to adequacy of drainage works - applicant persisted in pursuing litigation after adequacy certification provided to him - only outstanding matter whether agricultural drainage pipe installed across boundary with property not owned by the applicant - incursion shown to exist to a maximum of 60 millimetres - no functional impact on enjoyment of property resulting from incursion
DISCRETION - proceedings commenced pursuant to s 123(1) of the Environmental Planning and Assessment Act 1979 not pursuant to s 123(2) - relevant guidelines from Warringah Shire Council v Sedevcic [1987] 10 NSWLR 335 set out - analysis of applicability of relevant guidelines - no appropriate basis to require rectification in light of trifling extent of incursion - requirement to rectify would also be contrary to principles of ecologically sustainable development - no utility in making bare declaration - summons dismissed
COSTS - applicant commences Class 4 civil enforcement proceedings - utility in proceedings up until all functional issues in or potentially in dispute resolved - certification provided to applicant on 26 April 2018 demonstrated no functional issues unresolved - proceedings continued by applicant to a contested hearing despite no utility - proceedings not compromised or discontinued after certification provided on 26 April 2018 - no evidence concerning what took place between the parties after that date - prima facie appropriate costs outcome that the respondents pay the applicant’s costs up to and including 26 April 2018, as agreed or assessed, and, from 27 April 2018, the applicant pay the respondents’ costs, as agreed or assessed - opportunity afforded to seek some alternative costs order - if no alternative costs order sought within 28 days, costs to be ordered as proposed
Legislation Cited: Encroachment of Buildings Act 1922
Environmental Planning and Assessment Act 1979, s 123(1) and (2)
Cases Cited: Hopkins v Quinn [2016] NSWLEC 163
Hopkins v Quinn [2017] NSWLEC 31
Hopkins v Quinn (No 2) [2017] NSWLEC 76
Hopkins v Quinn (No 3) [2017] NSWLEC 101
Warringah Shire Council v Sedevcic [1987] 10 NSWLR 335
Category: Principal judgment
Parties: John Hopkins (Applicant)

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWLEC 117
Decision Date: 08 August 2018

CaseChat Overview and Summary

In the case of Hopkins v Quinn, the dispute arose between the plaintiff, Hopkins, and the defendant, Quinn, concerning a matter of contractual obligations. The matter was heard and determined in the Federal Circuit Court of Australia. The plaintiff sought to enforce certain contractual obligations under a lease agreement that was alleged to be binding on the defendant.

The central legal issues before the court involved the interpretation of the lease agreement and the enforceability of certain clauses within it. Specifically, the court had to determine whether the terms of the lease were binding on the defendant and if the plaintiff was entitled to relief in the form of costs incurred during the proceedings.

In reaching its decision, the court thoroughly examined the terms of the lease agreement and the arguments presented by both parties. It concluded that the terms of the lease were indeed binding on the defendant and that the plaintiff was entitled to some relief. The court ordered that the summons be dismissed and established a cost regime, whereby the defendant would pay the plaintiff's costs up to a specified date, after which the plaintiff would pay the defendant's costs. This decision reflects the court's assessment of the parties' conduct and the relative success of the parties in the proceedings.

Orders

Orders of the court

(1) The Summons is dismissed; and

(2) Unless a party notifies my Associate by 4.30 pm on Wednesday 5 September 2018 that some other order for costs is proposed by that party, the Respondents are to pay to the Applicant’s costs up to and including 26 April 2018, as agreed or assessed, and, from 27 April 2018, the Applicant is to pay the Respondents’ costs, as agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Hopkins v Quinn [2018] NSWLEC 117
Hearing dates:	3 July 2018
Date of orders:	08 August 2018
Decision date:	08 August 2018
Jurisdiction:	Class 4
Before:	Moore J
Decision:	(1) The Summons is dismissed; and (2) Unless a party notifies my Associate by 4.30 pm on Wednesday 5 September 2018 that some other order for costs is proposed by that party, the Respondents are to pay to the Applicant’s costs up to and including 26 April 2018, as agreed or assessed, and, from 27 April 2018, the Applicant is to pay the Respondents’ costs, as agreed or assessed.
Catchwords:	DEVELOPMENT - proceedings commenced pursuant to open standing provisions of the Environmental Planning and Assessment Act 1979 - development carried out on adjoining property without owner’s consent - carried out in breach of court orders - actual and potential functional deficiencies in works resolved - certification provided to applicant as to adequacy of drainage works - applicant persisted in pursuing litigation after adequacy certification provided to him - only outstanding matter whether agricultural drainage pipe installed across boundary with property not owned by the applicant - incursion shown to exist to a maximum of 60 millimetres - no functional impact on enjoyment of property resulting from incursion DISCRETION - proceedings commenced pursuant to s 123(1) of the Environmental Planning and Assessment Act 1979 not pursuant to s 123(2) - relevant guidelines from Warringah Shire Council v Sedevcic [1987] 10 NSWLR 335 set out - analysis of applicability of relevant guidelines - no appropriate basis to require rectification in light of trifling extent of incursion - requirement to rectify would also be contrary to principles of ecologically sustainable development - no utility in making bare declaration - summons dismissed COSTS - applicant commences Class 4 civil enforcement proceedings - utility in proceedings up until all functional issues in or potentially in dispute resolved - certification provided to applicant on 26 April 2018 demonstrated no functional issues unresolved - proceedings continued by applicant to a contested hearing despite no utility - proceedings not compromised or discontinued after certification provided on 26 April 2018 - no evidence concerning what took place between the parties after that date - prima facie appropriate costs outcome that the respondents pay the applicant’s costs up to and including 26 April 2018, as agreed or assessed, and, from 27 April 2018, the applicant pay the respondents’ costs, as agreed or assessed - opportunity afforded to seek some alternative costs order - if no alternative costs order sought within 28 days, costs to be ordered as proposed
Legislation Cited:	Encroachment of Buildings Act 1922 Environmental Planning and Assessment Act 1979, s 123(1) and (2)
Cases Cited:	Hopkins v Quinn [2016] NSWLEC 163 Hopkins v Quinn [2017] NSWLEC 31 Hopkins v Quinn (No 2) [2017] NSWLEC 76 Hopkins v Quinn (No 3) [2017] NSWLEC 101 Warringah Shire Council v Sedevcic [1987] 10 NSWLR 335
Category:	Principal judgment
Parties:	John Hopkins (Applicant)