Morris v Hutchison (No 2)

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)   Solicitors: Arden Law (Applicant) Nelson Keane & Hemingway (Respondents)
File Number(s):	19911 of 2018
Publication restriction:	No

TABLE OF CONTENTS

Introduction

The costs hearing

The Applicant's proposed costs orders

The evidence

The affidavit evidence

The documentary evidence

The indemnity costs application for the substantive hearing

Introduction

Consideration

A costs order against the Second Respondent

Introduction

The Applicant's position

The Second Respondent’s position

Consideration

Costs of the substituted performance application

Introduction

Leave to discharge the earlier order and to rely on the new proposed order.

Costs quantum for the substituted performance application

Mr Stretton’s submissions on this proposed order

The response for the Applicant in support of indemnity costs

Consideration

The incidental sum

The proposed Mareva-like orders

Costs of the costs hearing

Orders

JUDGMENT

Introduction

1. On 31 October last, I gave a decision in this substantive Class 8 matter (Morris v Hutchison [2019] NSWLEC 164 - my primary decision). On the question of costs, I made the following order:

6   The…