Morris v Hutchison (No 2) [2019] NSWLEC 189

Morris v Hutchison (No 2) [2019] NSWLEC 189

The Applicant was not entitled to indemnity costs of the substantive proceedings from 7 March 2019 because the 6 March 2019 offer was incapable of lawful implementation: the Minister's order under the Mining Act 1992 imposed mandatory requirements for small scale mineral claims, and the proposed split of Mineral Claim 56861 would have produced claims incapable of registration. No costs order was warranted against the Second Respondent because, although properly joined, he was fundamentally a passenger and the substantive outcome imposed no functional obligations on him. The First Respondent's failure to comply with Order (1) of the primary judgment created an urgent risk that Mineral...

Jurisdiction
Australia
Judgment Date
09 December 2019
Procedural Posture
Class 8 Costs Application / Costs Hearing Following Substantive Class 8 Judgment and Substituted Performance Application
Outcome
Applications for indemnity costs of the substantive proceedings, costs against the Second Respondent, and orders concerning Mineral Claim 56862 were dismissed or refused; the First Respondent was ordered to pay indemnity costs of the substituted performance application and the transfer lodgement fee; no order was...
Legal Topics
['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'substituted Performance' 'gross Sum Costs Order' 'mineral Claims' 'mareva Like Orders']
['costs' 'civil Procedure' 'mining Law'] ['indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'substituted Performance' 'gross Sum Costs Order' 'mineral Claims' 'mareva Like Orders']

Case Brief

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Procedural Posture

Class 8 Costs Application / Costs Hearing Following Substantive Class 8 Judgment and Substituted Performance Application

Legal Issues

  1. 1 ["Whether the Applicant's costs of the substantive proceedings from 7 March 2019 should be paid on the indemnity basis because the First Respondent did not accept the 6 March 2019 offer." 'Whether any costs order should be made against the Second Respondent.' "Whether the First Respondent should pay the Applicant's costs of the substituted performance application on the indemnity basis and in what amount." 'Whether the First Respondent should reimburse the lodgement fee for transfer of Mineral Claim 56861.' 'Whether protective Mareva-like orders concerning Mineral Claim 56862 should be made.' 'What costs order should be made for the costs hearing.']

Ratio Decidendi

The Applicant was not entitled to indemnity costs of the substantive proceedings from 7 March 2019 because the 6 March 2019 offer was incapable of lawful implementation: the Minister's order under the Mining Act 1992 imposed mandatory requirements for small scale mineral claims, and the proposed split of Mineral Claim 56861 would have produced claims incapable of registration. No costs order was warranted against the Second Respondent because, although properly joined, he was fundamentally a passenger and the substantive outcome imposed no functional obligations on him. The First Respondent's failure to comply with Order (1) of the primary judgment created an urgent risk that Mineral...

Court Disposition

Applications for indemnity costs of the substantive proceedings, costs against the Second Respondent, and orders concerning Mineral Claim 56862 were dismissed or refused; the First Respondent was ordered to pay indemnity costs of the substituted performance application and the transfer lodgement fee; no order was...

Orders

  • ["The application that the Applicant's costs of the proceedings from 7 March 2019 be paid on the indemnity basis is dismissed." "The application that the Second Respondent pay any of the Applicant's costs of the proceedings is dismissed." "The First Respondent is to pay, within 28 days of the date of these orders,...