O'Keefe v Water Administration Ministerial Corporation (No 2) [2010] NSWLEC 89

O'Keefe v Water Administration Ministerial Corporation (No 2) [2010] NSWLEC 89

The Court held that it was not fair and reasonable to displace the presumptive no costs rule in r 3.7 of the Land and Environment Court Rules 2007. Despite the presence of significant legal issues, the proceedings involved both merits and legal questions, and the O'Keefes' conduct was not unreasonable. The fact that the O'Keefes did not succeed did not justify a costs order, nor did any other circumstance warranting displacement of the statutory presumption. Consequently, the application for costs by the Ecclestons was dismissed.

Parties
First Applicant: David Daniel O'Keefe; Second Applicant: Kathryn Michelle O'Keefe; First Respondent: Water Administration Ministerial Corporation; Second Respondent: Peter Bryan Eccleston; Third Respondent: Lucy Finette Taylor Eccleston
Jurisdiction
Australia
Judgment Date
03 June 2010
Procedural Posture
Notice of Motion (costs Application) in Class 3 Proceedings / Post Judgment (costs Determination After Substantive Hearing)
Outcome
Notice of motion dismissed with costs (no order for costs in respect of the proceedings before Lloyd J)
Legal Topics
Costs Orders, Class 3 Proceedings, Merits Review Appeals, Easements, Water Rights
Civil Procedure Environmental Law Costs Orders Class 3 Proceedings Merits Review Appeals Easements Water Rights

Case Brief

Summary, issues, holding and outcome

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Parties

David Daniel O'Keefe

First Applicant

Kathryn Michelle O'Keefe

Second Applicant

Water Administration Ministerial Corporation

First Respondent

Peter Bryan Eccleston

Second Respondent

Lucy Finette Taylor Eccleston

Third Respondent

Procedural Posture

Notice of Motion (costs Application) in Class 3 Proceedings / Post Judgment (costs Determination After Substantive Hearing)

Legal Issues

  1. 1 Whether it is fair and reasonable, pursuant to r 3.7 of the Land and Environment Court Rules 2007, for unsuccessful appellants to pay the costs of the second and third respondents in Class 3 proceedings
  2. 2 Whether the nature of the proceedings (merits appeal or question of law) affects the appropriate order for costs
  3. 3 Whether the unsuccessful party acted unreasonably in the conduct of litigation so as to warrant a costs order against them

Ratio Decidendi

The Court held that it was not fair and reasonable to displace the presumptive no costs rule in r 3.7 of the Land and Environment Court Rules 2007. Despite the presence of significant legal issues, the proceedings involved both merits and legal questions, and the O'Keefes' conduct was not unreasonable. The fact that the O'Keefes did not succeed did not justify a costs order, nor did any other circumstance warranting displacement of the statutory presumption. Consequently, the application for costs by the Ecclestons was dismissed.

Court Disposition

Notice of motion dismissed with costs (no order for costs in respect of the proceedings before Lloyd J)

Orders

  • The notice of motion is dismissed with costs.