Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd - [2018] NSWLEC 39 - NSWLEC 2018 case summary — Zoe

NSWNSWLEC

Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd

[2018] NSWLEC 39

Land and Environment Court (NSW)|2018-01-25|Before: Moore J, Mr J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2018-01-25

Before

Moore J, Mr J

Catchwords

[1990] HCA 59 Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd
Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (No 2) [2017] NSWLEC 147 Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd

Source

Original judgment source is linked above.

Catchwords

[1990] HCA 59 Louisiana Properties Pty Ltd v Hakea Holdings Pty LtdHakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (No 2) [2017] NSWLEC 147 Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd

Judgment (36 paragraphs)

[1]

Tregoyd Gardens v Jervis (1997) 8 BPR 15,845 Category: Costs Parties: Louisiana Properties Pty Ltd (Applicant in 322081 of 2016 and Respondent and Cross-claimant in 261922 of 2016 ) Hakea Holdings Pty Ltd (First Respondent in 322081 of 2016 and Applicant and Cross-defendant in 261922 of 2016) Caverstock Group Pty Limited (Second Respondent in 322081 of 2016) Central Coast Council (Third Respondent in 322081 of 2016 - submitting appearance) Representation: Counsel: Mr C Ireland, barrister (Louisiana Properties Pty Ltd) Mr T Hale SC/Mr J Tobin, barrister (Hakea Holdings Pty Ltd) Mr A Carney, solicitor (Caverstock Group Pty Limited)

[2]

Solicitors: O'Brien Legal Pty Limited (Louisiana Properties Pty Ltd) Watson Mangioni (Hakea Holdings Pty Ltd) Carneys Lawyers (Caverstock Group Pty Limited) File Number(s): 261922 and 322081 of 2016 Publication restriction: No

[4]

Introduction

Hakea Holdings Pty Ltd (Hakea) and Louisiana Properties Pty Ltd (Louisiana) own adjoining allotments to the west of the Wyong Health Campus (the health campus). Louisiana's property is immediately to the west of the health campus, whilst Hakea's property adjoins Louisiana's to its west. The two properties originally formed part of a single allotment, an allotment which was owned by Louisiana prior to Louisiana applying to the (then) Wyong Shire Council (now part of the Central Coast Council) (the Council) for development consent to subdivide the original allotment.
Louisiana had also obtained development consent from the Council for the construction of an aged persons' facility and a medical centre on the original single parcel. After the subdivision, the proposed aged care facility site was on the allotment now owned by Hakea, whilst the medical centre site was on the allotment which remained in Louisiana's hands.
Although not the original purchaser of the western allotment from Louisiana, Hakea later became the owner of this allotment. Hakea applied to the Council for development consent to construct an aged persons' facility on what had become its land. This facility, although generally within the footprint of the facility for which Louisiana had obtained development consent, was, nonetheless, larger in scale. Hakea constructed its aged persons' facility.
When the Council granted Hakea development consent for its proposed aged persons' facility, as is customary, the consent imposed a range of conditions requiring to be satisfied. Two of those conditions gave rise to litigation between Hakea and Louisiana. This decision deals with determination of costs issues arising out of the litigation.
The first relevant condition required Hakea, because its land was mapped as bushfire-prone, to establish an Asset Protection Zone (APZ) to protect its aged care facility from bushfire risk. As portion of that APZ needed to be located on the land which remained in Louisiana's ownership, the Council's relevant condition required that Hakea obtain an easement from Louisiana that would permit Hakea to establish the APZ on Louisiana's land prior to Hakea being granted an occupation certificate for its aged care facility.
Negotiations between Hakea and Louisiana for an easement for the purposes of establishing the APZ broke down. As a consequence, Hakea commenced proceedings in the Supreme Court pursuant to s 88K of the Conveyancing Act 1919 (the Conveyancing Act) seeking that the Supreme Court order that Louisiana grant Hakea the necessary easement.
The second relevant condition imposed by the Council was one that required Hakea to obtain flood-free access to the health campus land. This flood-free access was required as Louisiana Road (the road by which Hakea and Louisiana both obtained road access) was, at the time of granting development consent, flood-affected. Hakea engaged Caverstock Group Pty Limited (Caverstock) to construct a road across Louisiana's property to the boundary of that property in the health campus land. That road, although constructed generally (but certainly not entirely) along the alignment of the road for which Louisiana had development consent for the purposes of servicing its approved medical centre, was, nonetheless, constructed by Caverstock at Hakea's instigation without Louisiana's agreement.
As a result of the construction of the road, Louisiana initiated a cross-claim in trespass against Hakea in the Supreme Court proceedings and, separately, commenced proceedings in the Land and Environment Court (the Court). The proceedings in this Court were commenced pursuant to s 123 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) seeking, effectively, that Hakea and Caverstock be required to remove the road and revegetate its road corridor.
The Supreme Court proceedings were transferred to the Court so that both matters could be dealt with expeditiously and in a consistent, common-finding fashion.
The Supreme Court and the Land and Environment Court proceedings were heard together over six days in December 2016. On 29 March 2017, I gave a decision concerning Hakea's application for an easement to establish the required APZ and concerning an aspect of Louisiana's cross-claim, that aspect being whether or not Hakea should pay Louisiana exemplary damages for the trespass by Hakea and Caverstock on Louisiana's land (see Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2017] NSWLEC 37 (my first decision)).
In my first decision, I also held that there was no lawful basis upon which Hakea could have commissioned Caverstock to construct the road which Caverstock had erected on Louisiana's property. The consequence of this determination was that, for the purposes of the Land and Environment Court proceedings, it was necessary to proceed to a further hearing on the question of what orders (if any) were appropriate to be made pursuant to s 124 of the EP&A Act.
As the question of discretion was inextricably linked with the question of whether or not Louisiana was entitled to ordinary damages for trespass on its cross-claim in the Supreme Court (the two potential remedies being in the alternative), a further hearing was held to address the question of discretion in the Land and Environment Court proceedings. That hearing was held on 4 and 5 September 2017 and I handed down my decision on 2 November 2017 (see Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (No 2) [2017] NSWLEC 147 (my second decision)).
In my second decision, I concluded that the appropriate outcome was that Hakea and Caverstock were to be required to meet the costs of removing the road which had been constructed on Louisiana's land and of revegetation of the road corridor.
For reasons set out later, this is a simplistic summary of the Land and Environment Court proceedings as Louisiana had also pleaded a number of other matters, some of which were not pursued by Louisiana and others upon which Louisiana was unsuccessful.

[10]

The starting position (the Supreme Court proceedings)

Hakea's application for the imposition of the APZ easement was made, as I have earlier noted, pursuant to s 88K of the Conveyancing Act. This provision deals, in s 88K(5), with the question of how the costs burden for proceedings seeking the imposition of an easement might ordinarily fall. The relevant element is in the following terms: (5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary.
The question of whether or not I should engage the discretion, contained in the concluding words of this provision, and set aside the presumptive position is the basis of the dispute between Hakea and Louisiana concerning costs in the Supreme Court proceedings.
As a subsidiary argument in the Supreme Court costs dispute, Mr Ireland, counsel for Louisiana, submitted that any costs order I might make in the Supreme Court proceedings in favour of Louisiana should be one made on an indemnity basis. He made this submission relying on a decision by Hamilton J in Tregoyd Gardens v Jervis (1997) 8 BPR 15,845 where, at 15,856, his Honour ordered that the respondent's costs in that s 88K proceeding should be paid on an indemnity basis. His Honour's reasons for decision do not disclose the reasoning by why his Honour reached that conclusion.
However, other decisions concerning costs in s 88K easement proceedings have either expressly nominated that such costs orders should be "as agreed or assessed" or have been silent on that point (thus leading, in my view, to the presumption that such costs would be as agreed or assessed). In the decision of Hodgson CJ in Equity, 117 York Street v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504in, his Honour observed, at 523: In my opinion, the provisions of s 88K(5) are not such as to indicate that an indemnity costs order should be made as of course in favour of a defendant.
The decision of Hamilton J would seem to me to be an outlier and not to be followed as an ordinary course outcome. Absent properly established and cogent reasons to persuade me that I should depart from an ordinary course position, if I make (as I propose to do) an order in Louisiana's favour pursuant to s 88K(5), the only appropriate basis upon which such an order might be contemplated to be made would be on an as agreed or assessed basis. Such an approach is consistent with the position in the Uniform Civil Procedure Rules 2005 (the UCPR) discussed below.

[15]

Introduction

Hakea's first offer to Louisiana, made on 28 November 2016 in proposed settlement of the Supreme Court proceedings, was not accepted by Louisiana.
Hakea made a second, separate offer to Louisiana, also on 28 November 2016, in proposed settlement of the Land and Environment Court proceedings. This offer was not accepted by Louisiana. This offer proposed that Louisiana capitulate on the proposed prayers (6) to (9) of Louisiana's Further Amended Summons, filed on 26 October 2016, but that there be no order for costs arising if Louisiana did so. It is sufficient to set this offer aside to note that prayer (7) was (although not in the precise terms pleaded) generally resolved in Louisiana's favour - rendering the offer of no utility in founding a Calderbank offer based on it.
Hakea made a further offer to Louisiana on 22 August 2017 in the Land and Environment Court proceedings. This offer in the Land and Environment Court proceedings is, for the reasons discussed below at [68] to [71], not able to be compared validly with the outcomes of my determinations in my second decision concerning the removal of the road and the revegetation of the road corridor. For the reasons there set out, the 22 June 2017 Total Earth Care quotation can provide neither party with a valid basis for pressing Calderbank liability in the Land and Environment Court proceedings.
Hakea's first offer to Louisiana was relied upon by Hakea to provide a reason why the presumption in s 88K(5) of the Conveyancing Act should be set aside. All the offers are also relied upon, as I understood it, by Mr Hale for the "no costs, walk away" position discussed above. Because I have concluded that Louisiana's rejection of the first of these offers, noted in [39], was reasonable in the circumstances because of one critical aspect of what was proposed by Hakea, it is necessary to explain why that is so - but it also renders unnecessary the undertaking of any broader comparative analysis of the outcomes of the proceedings when compared to the general terms of Hakea's first offer in the Supreme Court proceedings.

[16]

The APZ easement condition

I have earlier noted that, as one of the conditions of development consent attaching to the approval that the Council gave to Hakea's aged care facility was condition 78 which mandated that Hakea obtain the APZ easement from Louisiana, that condition of consent was in the following terms: 78 Prior to the issue of the Final Occupation Certificate, compliance with the Bush Fire Safety Authority issued by the NSW Rural Fire Service as outlined in its correspondence dated 5 August 2013 as follows: Asset Protection Zones The intent of measures is to minimise the risk of bush fire attack and provide protection for emergency services personnel, residents and others assisting fire fighting activities. To achieve this, the following conditions shall apply: A: At the commencement of building works and in perpetuity the property around the proposed building to a distance of 50 metres to the east and south and to the property boundary to the north and west, shall be maintained as an inner protection area (IPA) as outlined within section 4.1.3 and Appendix 5 of 'Planning for Bush Fire Protection 2006' and the NSW Rural Fire Service's document 'Standards for asset protection zones'. B: The balance of the asset protection zone (APZ) not achievable on Lot 101 is to be provided on adjoining Lot 102 DP 1091897 for the full distance of the required APZ. In accordance with section 88B of the 'Conveyancing Act 1919' an easement is to be registered benefiting Lot 101 and burdening Lot 102 requiring the provision of this APZ which shall be maintained as outlined within section 4.1.3 and Appendix 5 of 'Planning for Bush Fire Protection 2006' and the NSW Rural Fire Service's document 'Standards for asset protection zones'. This easement can be extinguished upon commencement of any future residential development on adjacent lots, but only if the hazard is removed as part of the proposal. [emphasis added by me].
Although one of the directors of Louisiana, Mr Haxsell, countersigned a letter to the Council indicating that Louisiana was prepared to grant Hakea an easement to satisfy the condition, the letter made it clear that detailed negotiation of the terms under which the easement would be granted then remained to be negotiated.

[23]

Conclusion on Louisiana's rejection of Hakea's offers

Whilst I accept that the s 89 avenue for release would have been available to Louisiana had the easement instrument clause proposed by Hakea (including the word "residential") been given effect, I do not accept that this provides an appropriate basis for me to ignore Hakea's persistent proposal that the word "residential" be incorporated in the easement instrument. Hakea was on notice that that term incorporating the word "residential" was unacceptable to Louisiana and Hakea, itself, had rendered that word unnecessary by virtue of Council's approval of Hakea's modification application - this modification having effected removal from the condition of the word "residential" some four months or more earlier - but had not revised its offered easement terms or advised Louisiana of the alteration to the relevant condition.
Requiring Louisiana to seek court approval to modify the easement instrument would have been unreasonable under the circumstances, when the remedy to remove this barrier to agreement to the terms of an easement instrument lay entirely in Hakea's hands and could have been effected by an amendment to the terms of the proposed instrument in a fashion which would still have been in complete satisfaction of the Council's modified condition of consent.
In this context, because the terms of the proposed easement (the continuing inclusion of "residential" in cl 4) were so unreasonable as to warrant Louisiana's rejection of the proposed easement on this basis alone, the comparative generosity of the financial compensation offered by Hakea, when compared to the much more modest compensation determined by me to be appropriate, does not render Louisiana's rejection of Hakea's offers unreasonable.
It therefore follows that I am satisfied that Louisiana's non-acceptance of Hakea's offers was entirely reasonable and that that rejection cannot found any departure from the s 88K(5) presumption that Hakea should pay Louisiana's costs of the Supreme Court proceedings.

[24]

Louisiana's offers

Louisiana also made offers to Hakea. There were two such offers made, as disclosed by the attachments to the affidavit of Mr Patrick O'Brien dated 13 December 2017. Copies of the relevant correspondence were annexed to that affidavit. The offers were made on 8 December 2016 and 29 August 2017.
Each of the offers contained a number of elements across the Supreme Court and Land and Environment Court proceedings. Each of the offers might be described as containing a mosaic of elements proposed as settlement terms. The mosaic contained in the second offer differed from that which had been proposed in the first offer.
Hakea did not accept either of the offers.
The position advanced by Louisiana in these costs proceedings is that I should conclude that Louisiana has achieved a better outcome as a result of my first and second decisions and that, as a consequence, should I accept that that was the appropriate conclusion to draw after comparing the overall outcome of both proceedings (including the Supreme Court proceedings, the cross-claim), this would give rise to some appropriately determined indemnity costs order in Louisiana's favour.
For the purpose of responding to this broad proposition, it is sufficient for me to observe that, when the actual determined outcomes of my first and second decisions are read together (as a determined mosaic, as it were), there is no sufficient pattern disclosed by my determinations that would permit me to conclude that the first of Louisiana's offers was, in a pattern sense, sufficiently similar to my determinations to warrant a conclusion as proposed by Louisiana.
I do not accept the proposition that simply translating each of Louisiana's offers and my determinations into some total equivalent monetary amount and then comparing them to draw the conclusion that Louisiana seeks is appropriate and I have certainly not been taken to any authority that would provide a foundation for such a proposition. I am, therefore, not prepared to conclude that Louisiana has, in the necessary sense, achieved a better outcome in each of these proceedings than was contained in the first of the offers made.
Indeed, simply comparing the first of Louisiana's offers and the outcomes of my determinations in monetary terms is fundamentally mistaken, in my view. Whilst comparative money amounts may be available, if outcomes are to be calculated exclusively in that fashion, I do not consider that that approach is appropriate when the outcome of the Land and Environment Court proceedings (although able to be ascertained in monetary terms) was not a monetary outcome but was one of a practical implementation and environmental outcome. A purely monetary comparison has no regard for this, nor does it have any regard for what will be the ancillary environmental outcome to be obtained by revegetating the road corridor (a road corridor which is to be revegetated with plants from an ecologically endangered community species assemblage).
The second of Louisiana's Calderbank offers differed significantly from the first, financially based one. This offer, too, was one stated to be a single package designed, if accepted, to settle the Supreme Court proceedings and its related cross-claim together with the Land and Environment Court proceedings. With respect to the Supreme Court proceedings and the cross‑claim, the offer proposed to be the outcome in each is that which I have determined to be appropriate.
With respect to the Land and Environment Court proceedings, this second offer proposed that there be a functional outcome involving removal of the road. This functional outcome was proposed in the following terms: (a) completion by TEC of the works set out in the quote titled "Hamlyn Terrace - Road Removal" ("the quote") on page 24 of the exhibit marked "EA-2" to the affidavit sworn by Ergys Alliu on 22 June 2017 ("the exhibit") in accordance with the methodology set out under the subheading "Road Removal" on page 21 of the exhibit ("the methodology");
Although my second decision also determined a functional outcome for the road by removal (and revegetation of the road corridor once removal had been effected), as advanced by Louisiana in its second Calderbank offer, funding liability for this to occur:

was proposed to lie entirely with Hakea rather than in combination with Caverstock; and
was to be a funding liability basis for Hakea and a removal methodology which were derived from a Total Earth Care affidavit dated 22 June 2017 from Mr Ergys Alliu.

For reasons set out in my second decision, between [92] and [95], this 22 June 2017 affidavit was not read in the proceedings. Nor was this affidavit sought to be tendered during the course of the costs hearing for the purposes of demonstrating the terms of (1)(a) of Louisiana's second Calderbank offer.
As a consequence, I have no evidence which would permit me to assess whether the mosaic pattern of money and the implementation measure proposed by Louisiana's second Calderbank offer was or was not, in its overall effect, a better result than Louisiana had achieved in the Land and Environment Court proceedings.
In addition, separately, the fact that this offer was made exclusively to Hakea also renders it impossible for me to assess what would have been the outcome of this offer (if accepted by Hakea) when compared to the outcome in the Land and Environment Court proceedings as the functional outcome I determined in my second decision was that Hakea and Caverstock were jointly and severally liable for the cost of removal of the road and revegetation of the road corridor.
Whatever might be the commercial outcome of the liabilities imposed on Hakea and Caverstock jointly, they are not a matter for my consideration in these proceedings.
As a final observation on this point, I observe that the offers were made in combination, and, as I read them, not on a basis that would have permitted Hakea to accept an offer in one set of proceedings, to settle the outcome of those proceedings, whilst continuing to litigate the other. I have certainly approached my assessment on that basis.

[28]

Introduction

In conventional civil litigation, costs are ordinarily expected to follow the event (Pt 42 r 1 of the UCPR and Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 (Latoudis v Casey )). Costs are compensatory for the party in whose favour they are awarded and are certainly not to be regarded as punitive of the unsuccessful party (Latoudis v Casey at [13] per Mason CJ).
However, s 98(1) of the Civil Procedure Act makes it clear that there is discretion to order otherwise in the circumstances of a particular case.
Apportionment can be appropriate in some circumstances. In an instance such as this, where apportionment is proposed, I would need to be satisfied that there was some particular and proper basis arising from these proceedings that would cause me to depart from the general principle (Sze Tu v Lowe (No 2) [2015] NSWCA 91 (Sze Tu)).
In Sze Tu, Gleeson JA (Meagher and Barrett JJA concurring) wrote, at [39]: How "the event" should be defined will depend upon the nature of the litigation. Generally the "event" refers to the event of the claim and may be understood as referring to the practical result of a particular claim.
An unsuccessful party can be ordered to pay the entirety of the costs of the successful party, even though the successful party did not succeed on all issues - see James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [32]; and Roads and Traffic Authority v McGregor & Anor (No2) [2005] NSWCA 453 at [17].
A summary of the general principles providing guidance on departing from the general rule (of costs following the event) was set out in Sze Tu at [40] - quoting from Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 (Bostik Australia) at [38]. That summary [citations omitted] was: • Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed. • In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument. • If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue • Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed. • A separable issue can relate to "any disputed question of fact or law" before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter. • Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation.
Louisiana raised a number of matters in its pleadings commencing the Land and Environment Court proceedings. Although other matters were pleaded, there can be no doubt that the principal contested issue arising out of the matters relating to the road which had been constructed by Caverstock at Hakea's instigation were: 1. Whether there was any basis upon which Hakea had a right to cause Caverstock to construct the road across Louisiana's land; and 2. After my finding that there was no such right, how should I exercise my discretion with respect to Louisiana's proposal that the road should be removed and that the road corridor, post removal of the road, should be revegetated.
On these matters, Louisiana succeeded in their entirety.
However, the issue then arises, in my consideration of the principles set out above, whether there should be some apportionment of the costs in the Land and Environment Court proceedings as a consequence of Louisiana not succeeding on all the issues originally pleaded by it in commencing these proceedings. The matters which caused me to conclude that it is not appropriate to make any apportionment are as follows: 1. The functional "event" dealt with in the elements of my first and second decisions that arise out of Louisiana's commencement of the Land and Environment Court proceedings was undoubtedly what should be the fate of the road (and the road corridor) in light of Caverstock constructing the road at Hakea's instigation. The outcome of my first and second decisions on this matter meant that Louisiana was, functionally, entirely successful in the outcome which constituted the "event"; and 2. To the extent that Louisiana may have not pursued or not succeeded on other elements pleaded by it, they did not in any significant fashion prolong either phase of the hearing with the time, in either phase, devoted to the issues raised by Louisiana's Land and Environment Court pleadings being devoted, virtually entirely, to the road and road corridor issues and, for the second phase of the hearing, how my discretion should be exercised in light of the evidence and my conclusions to be drawn from it.
In reaching this conclusion, applying the last of the Bostik Australia points above and having regard to the first of them, there is nothing (arising from the remaining points) which causes me to conclude that there were any contested matters of sufficient magnitude or time to warrant displacing the Pt 42 r 1 UCPR presumption.
Therefore, there is nothing arising of any significance in the context of the amount of time required to address the Land and Environment Court proceeding issues which would warrant departure from the presumption that costs should follow the event with respect to these proceedings.

[31]

Conclusion

Louisiana and Hakea exchanged various offers proposing compromised outcomes for some or all of the aspects of the various proceedings. For the reasons earlier set out, I am satisfied that no offer by either of them (and the resultant non-acceptance by the other) provides any proper basis for any order for costs in any aspect of this litigation to be on other than the ordinary basis, that is that any costs liability should be on an as agreed or assessed basis.
In the Supreme Court proceedings, I have concluded that there is no basis that should cause me to depart from presumption created by s 88K(5) of the Conveyancing Act to depart from the position that Hakea should pay Louisiana's costs of those proceedings. As a consequence, Hakea is to be ordered to pay Louisiana's costs of the Supreme Court proceedings as agreed or assessed.
In the Supreme Court cross-claim element of the proceedings, I am satisfied that there is no basis to displace the presumption that costs follow the event. It follows that Hakea should pay Louisiana's costs of this element of the proceedings. Hakea is, therefore, to be ordered to pay Louisiana's costs of the Supreme Court cross-claim as agreed or assessed.
With respect to the Land and Environment Court proceedings, for the reasons earlier set out, apportionment of the costs of these proceedings on an issues basis (or indeed, any other basis) is inappropriate. There is no basis in these proceedings, however, for any order for costs to be made on other than the ordinary, as agreed or assessed basis.
For reasons set out in my second decision, I determined that Caverstock was to be jointly and severally liable with Hakea for funding the removal of the road and the revegetation of the road corridor. This adverse outcome for Caverstock means that, equally, there should be an adverse outcome on costs for Caverstock in the Land and Environment Court proceedings.
It therefore follows that Hakea and Caverstock should be jointly and severally liable for the payment of Louisiana's costs of the Land and Environment Court proceedings on an ordinary basis. The question of how, in reality, that joint and several liability should be satisfied is purely a matter for commercial resolution between Hakea and Caverstock.

Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd

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Judgment (36 paragraphs)

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