New South Wales Land and Housing Corporation v Quinn

Judgment

1. On 31 May 2018 I gave judgment for the New South Wales Land and Housing Corporation against Robert Quinn in the sum of $7,118.22. [1] The parties agreed that this sum needs amendment because of some small payments made by Mr Quinn, and I will make an order under the slip rule to correct that error.
2. The matter is also before me on three issues concerning costs. The parties agree that Mr Quinn was substantially successful but the Corporation says it won on some minor issues: the date of vacant possession and the limitation issue so that Mr Quinn should receive only 85% of his costs. However, these issues consumed an insignificant amount of time and were worth a little over $1,500, much less than 1% of the amount claimed. The major part of the small judgment amount in favour of the Corporation was not a matter of dispute by Mr Quinn.
3. It is not unusual that the successful party will fail on some issues of fact or law. [2] Generally, a costs liability is not differentiated according to success on an issue unless the issue is clearly dominant or severable, [3] or if an issue took up a significant part of the trial. [4] A broad‑brush approach should be applied. [5]
4. The Court may award costs in Mr Quinn's favour even though the Corporation was awarded a minor amount of damages. [6] A nominal award of damages does not give an entitlement to costs. [7] As Mr Quinn was, as a matter of substance, successful in the proceedings, he is entitled to his costs. In my view, the Corporation's success on some minor issues would not justify an apportionment of or discount on a costs order in favour of Mr Quinn.
5. The second issue is whether the small judgment in favour of the Corporation should be stayed pending the assessment of costs. The Corporation opposed a stay order but accepted that the costs would exceed the judgment. Both parties expressed no opposition to an order for set‑off and a specification of a minimum sum of costs so as to remove the need for a stay.
6. The final and significant issue is whether Mr Quinn is entitled to some of the costs being payable on an indemnity basis. Some 13 days before the first hearing date Mr Quinn served a Calderbank offer in the following terms: "I refer to previous correspondence in relation to this matter. I have now had the opportunity this morning of having a further lengthy conference with my client in relation to all issues relevant to this dispute. Notwithstanding the fact that there is significant merit in the case which would be argued on behalf of my client should any Supreme Court proceedings be commenced seeking to have the previous administrative decisions made by the department set aside, it is simply the case that my client is not in a financial position to commence further proceedings in the Supreme Court. So far as the District Court proceedings are concerned, there are a number of the legal arguments which can be relied upon by my client, but again the financial drain and strain on my client over the last few years directly relating to this dispute, together with the adverse effect that the proceedings have had on my client's general health, have led him to a position where he would rather try and resolve this matter prior to the currently listed date for Hearing. In those circumstances he has instructed me to put an offer of settlement to the Plaintiff of: a verdict for the plaintiff in the sum of $20,000.00 with no order as to costs. The verdict would be payable within 28 days of the offer being accepted and the verdict being entered. You should understand that this offer is made on the practical basis that my client instructs me that he has no current assets and that his income consists of money received from Centrelink for the aged pension. He relied on the goodwill of family members for accommodation and the amount of the settlement he is offering is in fact monies that some of his children have offered to provide my client with in order to settle this dispute. Having regard to the instructions I have received regarding my client's current financial circumstances, it seems to me that should any significant judgment be entered against him in these proceedings, he would simply have no capacity to pay any such sum and in such circumstances it would seem inevitable that my client would have to declare himself bankrupt or in fact be declared bankrupt through Court Orders and enforcement procedures. Obviously if that circumstance became a reality, the Plaintiff would receive no monies at all. Costs of preparation for the hearing are now about to escalate on both sides. Having regard to the fact that the hearing is set to commence on Thursday, 28 May 2015, it would be appreciated if I could have a reply to my client's offer by not later than 12.00 noon next Wednesday, 20 May 2015. This offer is made pursuant to the principles of Calderbank v Calderbank. If the offer is not accepted and my client achieves a more favourable result from the court, this letter will be tendered in any costs application and my client will seek an order that his costs be paid by the plaintiff on an indemnity basis from the date of this offer. I await your reply." [8] (Underlining in original).