Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council & Anor (No.2) [2010] NSWLEC 252

Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council & Anor (No.2) [2010] NSWLEC 252

The Council did not establish special circumstances, unreasonable conduct, or disentitling conduct sufficient to justify indemnity costs. The proceedings were reasonably commenced after Council changed its position; although the applicant's late and voluminous document bundle was unreasonable and inadequately...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
08 December 2010
Procedural Posture
Class 4 Proceedings; Costs Notice of Motion / Application by the First Respondent for Indemnity Costs After Dismissal of the Applicant's Class 4 Application
Outcome
The first respondent's Notice of Motion for indemnity costs was dismissed; the prior party/party costs order was affirmed.
Legal Topics
['indemnity Costs' 'party/party Costs' 'calderbank Offers' 'settlement Negotiations' 'adjournment Costs' 'late Service of Voluminous Documents' 'trial by Ambush' 'trolley Load Litigation']
['costs' 'civil Procedure' 'planning and Environment'] ['indemnity Costs' 'party/party Costs' 'calderbank Offers' 'settlement Negotiations' 'adjournment Costs' 'late Service of Voluminous Documents' 'trial by Ambush' 'trolley Load Litigation']

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Procedural Posture

Class 4 Proceedings; Costs Notice of Motion / Application by the First Respondent for Indemnity Costs After Dismissal of the Applicant's Class 4 Application

Legal Issues

  1. 1 ["Whether the applicant should pay all or some of the first respondent Council's costs on an indemnity basis." 'Whether late service and attempted tender of a 5,500 page bundle justified indemnity costs for the April 2009 hearing or adjournment.' "Whether the applicant's rejection of settlement proposals justified indemnity costs." "Whether the applicant's case after amendment was hopeless, doomed to fail, or conducted unreasonably so as to justify indemnity costs."]

Ratio Decidendi

The Council did not establish special circumstances, unreasonable conduct, or disentitling conduct sufficient to justify indemnity costs. The proceedings were reasonably commenced after Council changed its position; although the applicant's late and voluminous document bundle was unreasonable and inadequately explained, the ordinary party/party costs order adequately addressed the April hearing and adjournment. The applicant's rejection of Council's settlement proposal was not unreasonable, and the amended case at the August hearing was difficult but arguable, not hopeless or doomed to fail.

Court Disposition

The first respondent's Notice of Motion for indemnity costs was dismissed; the prior party/party costs order was affirmed.

Orders

  • ["The respondent's Notice of Motion dated 16 February 2010 is dismissed." "The court's Order (ii) of 2 February 2010 is affirmed." 'The applicant and the first respondent are each to pay their own costs on the Notice of Motion.' 'The exhibits may be returned.']