Breen v Clough (No 2) [2018] NSWSC 158

Breen v Clough (No 2) [2018] NSWSC 158

Although the plaintiffs obtained meaningful relief and were treated as having won the event, they were almost entirely unsuccessful on a substantial, practically separable nuisance claim and related unjust enrichment claim that occupied a significant part of the evidence and hearing. Fairness required a departure from the usual costs-follow-the-event order: the defendant should not bear the plaintiffs' costs of those claims, and the plaintiffs should pay the defendant's costs of them. None of the Calderbank offers or the plaintiffs' Offer of Compromise justified indemnity costs because the offers were not shown to be more favourable, or no less favourable, than the outcome ultimately...

Jurisdiction
Australia
Judgment Date
22 February 2018
Procedural Posture
Costs Application in Equity Proceedings Concerning an Easement Dispute Between Neighbours / Post Judgment Determination of Costs After Trial
Outcome
Costs orders made with a departure from the usual costs-follow-the-event rule; no indemnity costs ordered on the Calderbank offers or Offer of Compromise.
Legal Topics
['costs Following the Event' 'departure From Usual Costs Order' 'separable Issues' 'calderbank Offers' 'offer of Compromise' 'indemnity Costs' 'easement Dispute' 'nuisance' 'unjust Enrichment']
['civil Procedure' 'costs' 'equity' 'property Law'] ['costs Following the Event' 'departure From Usual Costs Order' 'separable Issues' 'calderbank Offers' 'offer of Compromise' 'indemnity Costs' 'easement Dispute' 'nuisance' 'unjust Enrichment']

Case Brief

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Procedural Posture

Costs Application in Equity Proceedings Concerning an Easement Dispute Between Neighbours / Post Judgment Determination of Costs After Trial

Legal Issues

  1. 1 ['Whether the plaintiffs should be regarded as having won the event despite failing on significant aspects of their claim.' "Whether the plaintiffs' unsuccessful nuisance and unjust enrichment claims were separable and justified a departure from the usual order that costs follow the event." "Whether the defendant unreasonably failed to accept the plaintiffs' Calderbank offers dated 23 February 2017 and 3 October 2017." 'Whether the plaintiffs obtained orders no less favourable than their Offer of Compromise dated 15 May 2017 so as to engage Uniform Civil Procedure Rules r 42.14.' "Whether the plaintiffs unreasonably failed to accept the defendant's Calderbank offers dated 21 September 2017 and 6 October 2017."]

Ratio Decidendi

Although the plaintiffs obtained meaningful relief and were treated as having won the event, they were almost entirely unsuccessful on a substantial, practically separable nuisance claim and related unjust enrichment claim that occupied a significant part of the evidence and hearing. Fairness required a departure from the usual costs-follow-the-event order: the defendant should not bear the plaintiffs' costs of those claims, and the plaintiffs should pay the defendant's costs of them. None of the Calderbank offers or the plaintiffs' Offer of Compromise justified indemnity costs because the offers were not shown to be more favourable, or no less favourable, than the outcome ultimately...

Court Disposition

Costs orders made with a departure from the usual costs-follow-the-event rule; no indemnity costs ordered on the Calderbank offers or Offer of Compromise.

Orders

  • ["That the defendant pay the plaintiffs' costs of the proceedings other than the costs of the nuisance claim referred to in paragraphs 8-11 of the Statement of Claim and the costs of the unjust enrichment claim referred to in paragraphs 38-47 of the Statement of Claim." "That the plaintiffs pay the defendant's costs...