Hopkins v Quinn (No 2) - [2018] NSWLEC 187

Land and Environment Court

New South Wales

Medium Neutral Citation: Hopkins v Quinn (No 2) [2018] NSWLEC 187
Hearing dates: 1 November 2018
Date of orders: 16 November 2018
Decision date: 16 November 2018
Jurisdiction: Class 4
Before: Moore J
Decision:
(1)   The Respondents are to pay the Applicant's costs up to 26 April 2018 on an ordinary basis as agreed or assessed;
(2)   The Applicant is to pay the Respondents’ costs from 27 April to 8 August 2018 on an ordinary basis as agreed or assessed; and
(3)   The Applicant is to pay the Respondents’ costs of the costs hearing on an indemnity basis.

Catchwords: COSTS - reason to depart from “costs follow the event” on hearing - offers made - none effectual - costs to be on ordinary basis - finding in substantive judgment of “tipping point” on issues - appropriate to apportion costs - costs orders made concerning substantive hearing on apportioned basis
COSTS - costs of costs hearing - view put in substantive proceedings as to proposed costs outcome - position accepted by respondent - position challenged by applicant - position advanced by applicant entirely without merit - appropriate to make special costs orders for costs hearing - applicant to pay respondents’ costs of costs hearing on an indemnity basis
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98(1)
Legal Profession Uniform Law Application Act 2014 (NSW)
Uniform Civil Procedure Rules 2005, r 42.1
Cases Cited: Brown v Randwick City Council (2011) 183 LGERA 382; (2011) NSWLEC 172
Calderbank v Calderbank [1975] 3 WLR 586
Hopkins v Quinn [2016] NSWLEC 163
Hopkins v Quinn [2017] NSWLEC 31
Hopkins v Quinn [2018] NSWLEC 117
Hopkins v Quinn (No 2) [2017] NSWLEC 76
Hopkins v Quinn (No 3) [2017] NSWLEC 101
James v Surf Road Nominees (No 2) [2005] NSWCA 296
Sze Tu v Lowe (No 2) [2015] NSWCA 91
Category: Costs
Parties: John Hopkins (Applicant)
David Quinn (First Respondent)
Maria Quinn (Second Respondent)
Representation:
Counsel:
Mr N Eastman, barrister (Applicant)
Mr G Stapleton, barrister (Respondents)
Solicitors:
Hones Lawyers (Applicant)
Sattler & Associates (Respondents)

File Number(s): 360273 of 2017
Publication restriction: No

TABLE OF CONTENTS

Introduction
A contest on costs
The general framework for costs considerations
Introduction
Apportionment
Unaccepted offers

Costs in the first Class 4 proceedings
The offers by Mr Hopkins to the Quinns
Introduction
The common element in all of Mr Hopkins' offers
Mr Hopkins’ first offer of 12 January 2018
Mr Hopkins’ second offer of 12 January 2018
Mr Hopkins’ third offer of 12 January 2018
Mr Hopkins’ offer of 1 May 2018
Mr Hopkins’ “offer” of 10 May 2018

The Quinns’ offers to Mr Hopkins
Introduction
The Quinns’ offer of 8 February 2018
The Quinns’ offer of 25 May 2018

The costs of the costs hearing
Orders
Annexure A
Annexure B

JUDGMENT

Introduction

This decision is about the costs of a long-running dispute between neighbours. Prior to this decision, I have already had to give five earlier decisions arising out of activities associated…

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 187
Decision Date: 16 November 2018

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Hopkins v Quinn (No 2) was heard, involving the Applicant, Hopkins, and the Respondents, Quinn. The dispute centred on the costs incurred during legal proceedings and the allocation of those costs between the parties. The court was required to determine the appropriate basis for the distribution of costs incurred by both parties from the start of the case up until the hearing of the costs application. This involved assessing the respective conduct of the parties and the outcomes achieved during the litigation process.

The primary legal issue was the allocation of costs incurred by the parties in their legal dispute. The court had to consider the conduct of both parties, the success achieved, and the reasonableness of the costs. The Applicant argued for a full recovery of costs up until a specific date, while the Respondents contended for a more limited recovery based on their respective conduct and the outcomes of the proceedings. The court needed to balance these arguments, ensuring that the costs were distributed fairly and in accordance with the principles of cost allocation in Australian litigation.

In delivering the judgment, the court assessed the conduct of both parties throughout the litigation process. It was found that the Applicant had been successful in achieving a favourable outcome in the main proceedings, while the conduct of both parties was not entirely without fault. Consequently, the court decided to allocate costs in a manner that reflected the overall outcomes and the conduct of the parties. The Applicant was to be responsible for costs from a certain date onwards, while the Respondents were ordered to pay costs up until that date. Additionally, the Applicant was required to cover the costs of the costs hearing on an indemnity basis.

The court's final orders included the payment of costs by the Respondents up to a specified date, with the Applicant responsible for costs from that date onwards. The Applicant was also ordered to pay the Respondents' costs of the costs hearing on an indemnity basis. These orders reflect the court's assessment of the respective conduct and outcomes of the parties in the legal dispute.

Orders

Orders of the court

(1) The Respondents are to pay the Applicant's costs up to 26 April 2018 on an ordinary basis as agreed or assessed;

(2) The Applicant is to pay the Respondents’ costs from 27 April to 8 August 2018 on an ordinary basis as agreed or assessed; and

(3) The Applicant is to pay the Respondents’ costs of the costs hearing on an indemnity basis.

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 (No 2) [2018] NSWLEC 187
Hearing dates:	1 November 2018
Date of orders:	16 November 2018
Decision date:	16 November 2018
Jurisdiction:	Class 4
Before:	Moore J
Decision:	(1) The Respondents are to pay the Applicant's costs up to 26 April 2018 on an ordinary basis as agreed or assessed; (2) The Applicant is to pay the Respondents’ costs from 27 April to 8 August 2018 on an ordinary basis as agreed or assessed; and (3) The Applicant is to pay the Respondents’ costs of the costs hearing on an indemnity basis.
Catchwords:	COSTS - reason to depart from “costs follow the event” on hearing - offers made - none effectual - costs to be on ordinary basis - finding in substantive judgment of “tipping point” on issues - appropriate to apportion costs - costs orders made concerning substantive hearing on apportioned basis COSTS - costs of costs hearing - view put in substantive proceedings as to proposed costs outcome - position accepted by respondent - position challenged by applicant - position advanced by applicant entirely without merit - appropriate to make special costs orders for costs hearing - applicant to pay respondents’ costs of costs hearing on an indemnity basis
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98(1) Legal Profession Uniform Law Application Act 2014 (NSW) Uniform Civil Procedure Rules 2005, r 42.1
Cases Cited:	Brown v Randwick City Council (2011) 183 LGERA 382; (2011) NSWLEC 172 Calderbank v Calderbank [1975] 3 WLR 586 Hopkins v Quinn [2016] NSWLEC 163 Hopkins v Quinn [2017] NSWLEC 31 Hopkins v Quinn [2018] NSWLEC 117 Hopkins v Quinn (No 2) [2017] NSWLEC 76 Hopkins v Quinn (No 3) [2017] NSWLEC 101 James v Surf Road Nominees (No 2) [2005] NSWCA 296 Sze Tu v Lowe (No 2) [2015] NSWCA 91
Category:	Costs
Parties:	John Hopkins (Applicant) David Quinn (First Respondent) Maria Quinn (Second Respondent)
Representation:	Counsel: Mr N Eastman, barrister (Applicant) Mr G Stapleton, barrister (Respondents) Solicitors: Hones Lawyers (Applicant) Sattler & Associates (Respondents)
File Number(s):	360273 of 2017
Publication restriction:	No