Supreme Court New South Wales

• Medium Neutral Citation: WOODLAND v DONNELLAN [2011] NSWSC 777
• Hearing dates: 18-20 October 2010
• Decision date: 29 July 2011
• Jurisdiction: Common Law
• Before: RS Hulme J

Decision

Verdict for the Plaintiff in an amount of damages to be assessed; and

Stand the proceedings over for mention with a view to then fixing a date for consideration of the topic of damages.

• Catchwords: Negligence - Solicitor - Advocates immunity - Easement
• Legislation Cited: Conveyancing Act 1919 s88K
• Cases Cited: Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845; Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR 15,795; 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 8 BP 15,917; Hanny v Lewis (1998) 9BPR 16,205; Wengarin Pty Ltd v Byron Shire Council (1999) 9 BPR 16,985; Katakouzinos and Anor v Roufir Pty Ltd (2000) 9 BPR 17,303; Kent Street Pty Ltd v Council of the City of Sydney (2001) 10 BPR 18,757; Mitchell and Ors v Boutagy and Anor (2001) 10BPR 19,187; King v Carr-Gregg [2002] NSWSC 379; Leichhardt Municipal Council v Green [2004] NSW CA 341 at [46]; Evans Shire Council v Richardson [2006] NSWCA 61 at [26]; D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 at [86]; (2005) 223 CLR 1,31; Symonds v Vass [2009] NSWCA 139; Dansar Pty Ltd v Pagotto [2008] NSWSC 112; Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85
• Category: Principal judgment
• Parties: Peter Richard WOODLAND; Patrick DONNELLAN t/as; PJ Donnellan & Co; Barbara WOODLAND
• Representation: Mr JS Emmett (Plaintiff); Mr G Craddock SC (Defendant); Colin Biggers & Paisley; Esplins Solicitors
• File Number(s): 2007/20438

Judgment

Summary

1 RS HULME J: At all material times the Plaintiff and the Second Defendant were the owners of land situate at 2 Panorama Parade, Seaforth. In the matters with which I am concerned the Plaintiff at all times acted on behalf of both and it will be convenient to refer to him without on each occasion referring also to the Second Defendant who has played no significant part in the litigation.

2 The Plaintiff obtained conditional Development Approval from Manly Council to subdivide that land. Some of the conditions related to drainage. The Plaintiff sought to meet those conditions by obtaining an easement over adjacent land owned by the Council but the Council refused to grant such an easement. The Plaintiff engaged the First Defendant, a solicitor, who gave advice and then, in early 2000 on behalf of the Plaintiff commenced proceedings against the Council seeking that this Court grant such an easement. There were settlement offers from the Council but the First Defendant advised against accepting them. The proceedings went to hearing. The Plaintiff was unsuccessful. He had to pay his own costs and was ordered to pay the Council's costs including some indemnity costs. On 5 December 2007 he commenced these proceedings against the First Defendant alleging that, in and from December 2001, the Defendant was negligent, in breach of a term of his retainer to exercise reasonable care and skill, and guilty of misleading and deceptive conduct under the Fair Trading Act and seeking damages.

3 The First Defendant has defended the proceedings, denying these alleged defaults and also relying on the doctrine of Advocates' Immunity.

The Evidence

4 To place the particular conduct relied on by one or other party in context, it is necessary to refer to a deal of the evidence. Number 2 Panorama Parade was constituted by Lot 26 in DP 7577 and a small lot to the south itself having no street frontage and being Lot 2 in DP 507692. A company controlled by Mr Woodland also owned the block of land immediately to the north of 2 Panorama Parade.

5 Panorama Parade ran approximately north and south. The Plaintiff's land sloped from the street. To the south of the land and separated from it by (moving from west to east) lots 11, 12 and 13 in Deposited Plan 801211 was Ross Street which ran, approximately, east-west.

6 To the east of the Plaintiff's land and of a small portion of Lot 13 near its north-east corner was Lot 10 in Deposited Plan 9521. So far as is presently material, to the east of the balance of Lot 13 was Lot 14 in what I infer to be DP 801211. This lot was a Road Reserve and vested in the Manly Council. The topography of the lots is such that, subject to grant of appropriate rights and the construction of a pipe under the ground, water accumulating on the eastern end of the Plaintiff's land would readily drain into Ross Street. Water accumulating on blocks to the north of 2 Panorama Parade would tend to drain onto the eastern end of that property and thence towards Ross Street.

7 The Manly Council also owned Lots 12 and 13. It contemplated and later undertook the establishment of a children's kindergarten on these lots.

8 The Development Approval to the subdivision of the Plaintiff's land into two blocks, one of a battleaxe shape, was granted on 9 March 1998 and was expressed to operate from 12 March 1998 to 12 March 2000. It was later extended, according to Hamilton J, to 12 March 2001. Conditions of the consent included:-

8 A system of onsite stormwater detention shall be provided within the property in accordance with Council's specification and to the satisfaction of the Group Manager, Land Use Management. Details shall be submitted and be approved prior to the release of the linen plans.

15 The applicant shall create an easement through the adjoining property/properties for the disposal of stormwater run off, to the requirements of Council or its delegate. The easement shall be registered prior to their release of linen plans.

16 The minimum width of inter-allotment drainage easements shall be:-

(a) 1.0m for pipes up to 150mm.

(b) 2.5m for pipes larger than 150mm.

The easements shall be free of encroachments and contain only a single pipeline to the satisfaction of the Group Manager, Land Use Management.

17 A 1.2 m wide concrete footpath shall be constructed along the entire frontage of the property at the full cost of the applicant. All work shall be carried out to the specification and satisfaction of the Group Manager, Land Use Management.

9 On 1 June 1998 a building consultant acting for the Plaintiff wrote to the Council seeking easements over that portion of Lot 13 as adjoined Lot 10 for vehicular access and drainage. A swap of some of the Plaintiff's land was proposed in return for the easements, albeit the justification for the swap might well have had more to do with the vehicular access rather than the drainage. The Council's Group Manager Asset Management and Contracts Administration favoured the grant of the drainage easement though one other Group Manager did not. On 15 March 1999 both aspects of the application were refused, possibly due to public or political pressure having little or nothing to do with the substantive merits of the application. In due course the application for an easement for vehicular access was abandoned. These proceedings arise in connection with the pursuit of the easement for drainage purposes.

10 On 17 March 1999 a Mr Nolan, architect, wrote to the Council seeking reconsideration. In the last paragraph of his letter, Mr Nolan added:-

If we are not able to secure this Easement thru the Council I would request your confirmation that a pump out system of O.S.D will be accepted. (sic)

11 I apprehend that "O.S.D" is a reference to "on-site drainage" or "on-site stormwater detention" or the like.

12 At about this time Mr Nolan expressed to Mr Woodland his view that the Council's previous decision was wrong or unfair.

13 The Plaintiff also consulted Mr Donnellan. In the course of conversation Mr Donnellan said that he had "a lot of experience" in the area of property matters and dealings with Councils. On 6 April 1999 Mr Donnellan wrote saying he had looked at material the Plaintiff had sent him and raised the possibility of making an application under Section 88K of the Conveyancing Act. Mr Donnellan said he would wish to discuss the matter with counsel but added:-

Under Section 88K it is necessary to demonstrate that the alternatives to the use of the proposed easement are impracticable by comparison with that use. We will need therefore to establish to the court that pumping drainage to the road is going to be expensive and awkward to a degree which outweighs any detriment that there might be to the Council in having this easement granted over its property.

14 The letter contained some caveats concerning other matters but it was not suggested that these have any bearing on the issues I have to decide and may be ignored.

15 Section 88K provides that, subject to any order of the court to the contrary, costs of proceedings under the section are payable by the applicant. Notes made by Mr Woodland on the letter of 6 April provide strong evidence that at about this time there was discussion between Mr Woodland and the Defendant about costs. In his affidavit of 29 August 2008, Mr Woodland deposed to the Defendant then saying:-

... If we proceed in the Supreme Court, section 88K requires the Applicant to pay the costs of the Respondent in going to court. However, this presumption in always subject to the Court's discretion and I think you may be able to put on a good argument about that given the circumstances of this case. In fact we can make strong arguments as to why the Council should pay your legal costs in taking the matter to Court.

16 Mr Donnellan denied conversation in these terms, saying that at that time he did not hold the opinion stated and that he told the Plaintiff that under s88K an applicant ordinarily has to pay costs. It seems to me that Mr Donnellan's evidence more accords with the circumstances apparent at that time. It also derives support from the handwritten notes made by the Plaintiff on the letter of 6 April. While I accept that the fact that the notes were made on that letter does not prove that they were made at that time, the notes do contain a short summary of what would seem to be an estimate of the Plaintiff's costs and, beside that estimate, the notation "other side costs 2/3".

17 On or soon after 14 April 1999 Mr Donnellan forwarded a costs agreement which the Plaintiff in due course signed and returned. Also on 14 April Mr Donnellan wrote saying:-

... we enclose a copy of a recent decision from the Court concerning applications under Section 88K which sets out the principles that the Court will apply in such an application. The relevant part of the judgment has been marked.

... we think it is unlikely that the Court would grant the easement for access which is proposed, however, we think that it is quite likely that the Court would grant the easement for drainage especially since the Council's administrative staff recommended that this easement be granted by the Council.

It is true that there is an alternative to drainage via this proposed easement, but it is plainly not an alternative of the same utility as the alternative means of access, so that it goes beyond being merely desirable to being something which is necessary, in the sense that it provides a solution to drainage which is practical and beneficial not only for the development of Lot 26 but for the development of Lot 13. We therefore think that it would be better to proceed in the Court for the drainage easement only.

Under Section 88K there is a requirement that the applicant for an easement pay the costs of the application and compensation. ...

...we think that we will also need to have evidence from an engineer practised in this field about the comparative cost and effectiveness of draining water by a system of detention tanks and pumping as opposed to gravity through the easement and any beneficial effects on the Council's land that would arise from drainage by those means. We recommend Mr Bob Staniland...

18 As became apparent during addresses, it was common ground that the decision provided was Hanny v Lewis (1998) 9 BPR 16,205.

19 Mr Donnellan agreed that in April 1999 he told the Plaintiff that he had a strong case. On 23 April he wrote to the Plaintiff a letter that included:-

We are hopeful, though perhaps a little naively, that the Council when it is faced with the prospect of the cost of Supreme Court proceedings and a likelihood that those proceedings will be successful in the circumstances, it will throw in the towel and agree to the grant without the need to go to Court.

20 On 28 June 1999, Mr Donnellan wrote to Mr Staniland asking him to address the matter of drainage of the Plaintiff's land and advising that an application for a Section 88K easement was contemplated. The letter, a copy of which the Plaintiff saw, included the following:-

The authorities on this section suggest that it will be necessary for us to establish that, though there is an alternative means of draining the site, it is so cumbersome by comparison with the grant of an easement that the easement should in fact be granted. This will be particularly so if the easement is actually beneficial to the land across which it passes and we understand that it will be beneficial in that it will stop surface water, which Lots 12 and 13 are bound as a matter of law to take, from making those Lots damp and in places boggy. This is a matter which we would need you to address for us as well.

21 On 2 August 1999 Mr Donnellan wrote to the Plaintiff enclosing a draft of a letter which, subject to receiving a report from Mr Staniland, he contemplated sending to the Manly Council. In the draft letter Mr Donnellan said that he was renewing the Plaintiff's application for the Council to grant an easement, advanced arguments in the Plaintiff's favour, and observed:

In all of those circumstances our clients will feel justified in making an application to the Court for costs which though they would normally be paid by the Applicant remain at the discretion of the Court.

22 Mr Donnellan agreed in cross-examination that his view at that time was that if Mr Woodlands was obliged to make an application to the Court he should be awarded his costs.

23 Mr Staniland provided a report on or about 18 August 1999. Mr Staniland canvassed a number of possibilities of stormwater disposal, observed that gravity drainage from the southeast corner of the Plaintiff's land was the most appropriate means of stormwater disposal and that pump-out systems had inherent problems including electrical and mechanical failure and in the Plaintiff's situation would aggravate the ground seepage impact on Lot 13. A copy of Mr Staniland's report was provided to the Plaintiff who accepted from the report that a gravity drain was very much preferable to pump-out. It may also be that a pump-out system was more expensive.

24 At this time Mr Donnellan also obtained a valuation of the land involved in the easement, the valuer observing that the easement would not have any impact on the Council's ability to build on Lot 13.

25 During April to October 1999 Mr Donnellan thought it was in the Plaintiff's interest to effect a settlement with the Council. On 12 October he wrote to the Council substantially in accord with the draft letter he had sent to the Plaintiff on 2 August. On 3 December the Council replied saying that the question of a drainage easement had been considered on 2 occasions, the latest being 15 March 1999, repeating Council's resolution of that date and saying that the matter would not be given any further consideration by Council.

26 Mr Donnellan was taken aback by this letter. On or soon after its receipt he formed the view that the Council was acting unreasonably and advised the Plaintiff that the s 88K application should be filed and served forthwith. He also formed the view that, if the Plaintiff had to apply to the Court, the Plaintiff should be awarded costs. Mr Donnellan agreed that probably from about this time he was indignant and at times very indignant about the Council's conduct and thought that the Plaintiff was being treated very badly.

27 According to Mr Woodland's affidavit he was advised, I infer at this time and by Mr Donnellan, that he had good prospects of having his own legal costs recovered in the matter.

28 On or before 5 January 2000, Mr Donnellan filed a Summons against the Council seeking the grant of an easement under Section 88K. On that day there was conversation between the two. According to Mr Donnellan he said:-

As I have previously stated irrespective of whether you win or lose the s 88K application, you would ordinarily be required to pay Council's costs... s 88K requires that all alternatives in respect of the easement be sought and an approach should be made to an adjoining property owner to see if they are prepared to grant an easement to you in lieu of the easement over Council's property.

29 Referring to this evidence, Mr Woodland said he recalled having a conversation with Mr Donnellan on 5 January 2000 during which Mr Donnellan said in relation to costs orders in s88K applications words to the effect that:-

In this case it is likely that the Court would at least order that each party pay its own costs due to the outrageous behaviour of the Council.

30 An amended Summons was filed on or about 22 March 2000.

31 During 2000 and 2001 both sides to that litigation prepared their evidence. There was also correspondence concerning the lapsing, and an extension, of the Development Approval granted in 1998, and the possible need for consent to pass pipes through Lot 14, and relevant land values. I may add that at some time efforts had been made to obtain an easement through Lot 10, the Lot to the east of the Plaintiff's land but these had been unsuccessful. At no time during the proceedings before me was it suggested that this alternative route was a factor that bore to any substantial extent on the application for an easement through the Council's Lot 13.

32 On 13 February 2001 Mr Donnellan wrote to the Plaintiff enclosing a copy of a valuation filed on behalf of the Council and asking the Plaintiff to indicate whether he was prepared to accept this. Some potential costs advantages were point out.

33 On 20 April 2001 Mr Donnellan wrote to Messrs Abbott Tout. In that letter he remarked:

In this regard we respectfully submit to you that this case is a classic instance where, on the present state of authorities the Court would grant an easement under the Section. It is true that there is an alternative means of drainage but it could not seriously be suggested that a system of pumps and rising mains is a preferable alternative to what is proposed.

34 Taken to the letter, Mr Donnellan said that he thought the remarks quoted were consistent with the advice he was giving the Plaintiff by that stage.

35 The letter of 20 April also records that the Council had obtained a valuation for compensation purposes of $7,000 while a valuation obtained on Mr Wodolan's behalf had come in at $3,000.

36 Shortly before 7 June 2001 Mr Donnellan was served with affidavits filed by the Council. On that day he wrote to the Plaintiff enclosing copies of the affidavits and saying:-

It seems to me that the assertion (one of the deponents) makes about the easement interfering with the Council's plans is nonsense but I have come to the conclusion that I will need to have a town planner examine the plans for the childcare centre to see whether there is any substance to what is being said.

37 Included in the evidence before me was a copy of one of the Council's affidavits - by a Ms Lawsen. That affidavit asserted that the minimum aggregate space required for the 30 child care centre (the size proposed) was 558.6 square metres and that:-

The placement of an easement across the Council's Land in the place marked on the plan annexed to the Summons filed in these proceedings, and access pits to an underground storm water pipe at ground level would:

(i) present a risk of injury to users of the Council's Land, including children; and

(ii) impact upon the Council properly providing for the following:-

(A) Space on-site for 8 cars;

(B) Setback requirements from the street boundaries;

(C) Setback from the boundary with No. 14 Ross Street to enable residents to retain views; and

(D) Sufficient site area for the Council to provide an economically-viable child care centre.

38 When regard is had to the size of Lot 13, which a study of a plan shows to be probably in excess of 1100 square metres, there is much to be said for Mr Donnellan's description of "nonsense".

39 On the other hand, the affidavit did go on to deal with other matters including Council policies and practices in relation to drainage. In short, Council had standard conditions for pump-out systems when easements could not be obtained without a s 88K application, its policy was to prefer the use of such systems rather than s 88K easements, and it also had a policy of not allowing easements over public land. During the hearing before me the validity, sense, and significance of these matters was not debated although it may be noted that Hamilton J does not seem to have placed significant weight on such policies.

40 On or about 12 September 2001, the matter was fixed for hearing before Hamilton J on 13-15 February 2002.

41 On 21 December 2001 Messrs Abbott Tout who were acting on behalf of Manly Council in the proceedings wrote to Mr Donnellan. After observing that the development consent obtained in March 1998 had now lapsed and accordingly the easement sought was now unnecessary, the letter proceeded:-

This notwithstanding the Council resolved at its meeting held 17 December 2001:

1. That Council authorise the General Manager to negotiate creation of and compensation for an easement for drainage purposes over Council land in favour of 2 Panorama Parade, Seaforth and a contribution from the owners of 2 Panorama Parade Seaforth towards the construction of a Council drain, within Council land, to connect to drainage pits in Ross Street, Seaforth for the drainage of 2 Panorama Parade, Seaforth. This contribution to be equal to the cost that would have been incurred by them in the construction of a separate drainage line to Ross Street.

2. Further, that the owners of 2 Panorama Parade, Seaforth be required to pay all Council's legal, valuation and other statutory expenses incurred, associated with the settlement of this matter.

3. That Council negotiate with the owner 2 Panorama the creation of an easement for drainage purposes over the rear of their land in favour of properties to the North.

42 Mr Donnellan had previously advised that this last mentioned matter was a considerable bargaining chip in Mr Woodland's hands. Mr Donnellan's response to this letter was one of the Plaintiff's main complaints.

43 On 8 January 2002 Mr Donnellan wrote to the Plaintiff proposing that the Plaintiff make a counter-offer to the Council and enclosing a copy of that counter-offer. Summarised, the proposal was that:-

1. The Plaintiffs would grant the Council an easement for drainage along the south-eastern boundaries of their properties.

2. The Plaintiffs would make a contribution to the Council towards the construction of a council drain through the easement and Lots 13 and 14 to connect to drainage pits in Ross Street to enable drainage of the Plaintiffs' blocks and other properties to the north, the amount of the contribution being the amount it would have cost the Plaintiffs to construct a drain to Ross Street to drain their properties.

3. The Plaintiffs would not seek compensation for the easement they granted.

4. The Council would construct the drain through the easement Lots 13 and 14 within 12 months.

5. The Council would pay its own costs of the proceedings.

6. The Council would bear the costs of the survey and conveyancing work for the creation of the easement.

7. The Council would accept that the construction of a footpath along the front of the property at Panorama Parade which had been a condition of the Development Consent (and which had apparently occurred prior to 12 March 2001) constituted physical commencement under the consent.

44 In Mr Donnellan's covering letter, also of 8 January, he said, inter alia:

Even though the conduct of the Council in everybody's view who has had anything to do with the matter on your side is outrageous, Section 88K, under which we are proceeding, provides that ordinarily the costs of the Defendant in the proceedings should be borne by the Applicant if the easement is granted. That is not a hard and fast rule and we would certainly be making representations to the Court that at the very least each party should pay their own costs in the circumstances, but given that such an order is probably the best we could do (as opposed to an order that the Council pay your costs) there is nothing much to be put at risk by proposing to the Council that we agree to such an arrangement.

45 On 9 January 2002 Mr Donnellan had a phone conversation with the Plaintiff. According to the Plaintiff, in the course of that conversation, Mr Donnellan said:-

This is not a hard and fast rule and we would certainly be making representations to the Court that at the very least each party should pay their own costs. Given the Council is a public authority and it is acting outrageously, it is likely that the Court will look favourably on us.

46 Under cross-examination Mr Donnellan said that he could not recall and could not deny the suggested conversation.

47 On 10 January Mr Donnellan wrote to Messrs Abbott Tout in the terms of the draft letter he had submitted to the Plaintiff on 8 January.

48 On 17 January 2002 Messrs Abbott Tout wrote indicating that the terms proposed in Mr Donnellan's letter of 10 January were not acceptable, saying that the topic of an easement over the Plaintiff's land was a separate matter and could be so dealt with, reiterating that it was the councillors who had resolved the effect that any settlement must involve all of the Council's legal, valuation and other statutory expenses be paid, asserted that this was consistent with s 88K, asking whether the Plaintiff was prepared to accept the terms of the Council's resolutions "in principle" as being the basis for the commencement of negotiations, and again inviting a meeting between the Council's General Manager and the Plaintiff.

49 On 17 January 2002 Mr Donnellan replied advising that his clients would not agree to a settlement involving their paying the Council's costs if the settlement was to be effected separately from the proposal for a drainage easement over their land. Mr Donnellan in effect suggested that the grant of that easement could be treated as payment of the Council's costs. He also said that the reason for his clients' attitude was that it was "outrageous" that proceedings had got to the point they had because:-

(a) the engineering evidence is clearly to the effect that gravity drainage of the subject properties is vastly superior and infinitely preferable to the drainage by a rising main and pump system to Seaview Parade as proposed by your clients;

(b) this evidence supports the view that your clients own engineer took in recommending to the Council that the easement be granted;

(c) by no stretch of anybody's imagination could the easement proposed have any detrimental effect on your client's property;

(d) the question of whether there should be an easement to accommodate drainage in this way over your client's property is an engineering question, but you client has made it something else. There can be no possible justification for you client's attitude and this is something that has been rested by our clients from the beginning.

50 On the same day Mr Donnellan forwarded copies of the correspondence of 17 January to Mr Woodland.

51 On 18 January Mr Woodland had another conversation with Mr Donnellan. According to Mr Woodland, Mr Donnellan said how "Outrageous the Council's behaviour had been and believed that such behaviour was enough to overturn any presumption of awarding costs in their favour". Again Mr Donnellan said that he had no recollection and could not deny Mr Woodland's account.

52 On 18 January Mr Donnellan had two conversations with Mr Rose of Messrs of Abbott Tout. Mr Rose affirmed that the Council was no longer interested in pursuing the topic of the drainage easement across the Plaintiff's property. Mr Donnellan asked for a ballpark figure for the Council's costs and Mr Rose said about $20,000 to $25,000. Mr Rose suggested the amount of compensation for the easement across the Council land would be a matter for discussion at the proposed meeting.

53 On 21 January 2002, Mr Donnellan wrote to the Plaintiff. The terms and possible significance of the letter are such that it must be referred to at length. Mr Donnellan summarised aspects of his conversation with Mr Rose, the letter continued:-

The purpose of my writing at this stage is to alert you to what the present situation is and to canvass some possibilities. As you know, my attitude to the Council's conduct of these proceedings is as set out in the last letter which I sent to you, namely, that it has been outrageous.

All that aside, the issue here is what is in your best economic interest to do, and I think that it would be prudent for you to consider settling on the following basis:

1. The Council does the following:

(a) grants the easement;

(b) confirms that it will agree, subject to the appropriate application being made, to a connection from the easement across Lot 14 to the Council's sewer;

(c) confirm that it agrees that there has been substantial commencement of the subdivision consent.

2. You agree to the following:

(a) to pay compensation for the easement in an amount to be discussed with the General Manager and agreed upon in the light of the valuation evidence.

(b) that you will pay the Council's costs of the proceedings in an agreed amount to date, (that amount can also be the subject of negotiations), somewhere in the order of $20,000.00 according to the Council's solicitors.

I think this might be the best course to adopt now that the prospect of trading off the grant of the easement over the back of your property has been removed from these negotiations for the following reasons:

(1) Under Section 88K the staring point, as I have pointed out to you previously and has been mentioned in other correspondence, is that the applicant for the grant of an easement has to pay:

(i) compensation for the easement;

(ii) the costs of the respondent in the proceedings.

In relation to the costs of the proceedings, as you know, I have a strong view that we could argue that at the very least each party should pay its own costs - if the Council should not in fact have to pay yours - on the basis that notwithstanding the statutory provision, the discretion as to costs always rests with the Court. In the case of grants of easement under Section 88K, it is undeniably the fact that the statute prescribes that it is the applicant who pays the respondent's costs and that is going to be a difficult prescription to overturn in the absence of seriously outrageous conduct on the part of a respondent. There is no guidance so far in the decided cases as to what such conduct would be, and in fact, this matter would probably the first time that such an argument had been put to the Court, and therefore I cannot give you any prediction with complete confidence about what the outcome might be: that will depend, amongst other things, on the Judge and his perception of the nature of the Council's conduct in the matter. It may very well be the case that my feelings on the matter would be borne out in his decision, but I don't think that it is sensible to put you to the risk of any adverse finding if that risk can be avoided. The risk I am talking about here is not only having to pay your own costs of a three day hearing in the Supreme Court but the other side's costs and well, which could be bumping things up very serious indeed.

It would probably get to the stage where if you had to pay that sort of money plus the drainage construction costs, the benefit from the grant of the easement would evaporate. If you settle on the basis that I have outlined above, then you can roughly calculate what the whole thing is going to cost you by adding the following:

1. Our costs and disbursements to date $24,674.00

2. The Council's costs to date, say $20,000.00

3. Compensation to the Council, say $5,000.00

4. Construction costs, say $15,500.00

In addition we will, I should say, certainly resolve the uncertainty about the connection from the easement to Ross Street without having to contemplate another set of proceedings in the Land and Environment Court, and also, I expect and hope, the issue of physical commencement of the subdivision consent, which will also obviate the need for any further court proceedings in the Land and Environment Court to establish the continuance of the consent.

I know that there is a lot of money involved in settling on this basis and, as you know, I was hopeful that we might be able to offset some of that expense by the grant by you of an easement over the back of your property, but at least for the moment that seems to have gone by the board. However, it is still a scenario which is preferable to the one where the costs of the hearing in the Supreme Court were added.

54 Mr Donnellan went on to discuss possible ramifications and returns, albeit not in dollar terms, should the Council subsequently seek a drainage easement over the Plaintiff's property.

55 At 7.20pm on 21 January 2002 Mr Donnellan also sent an email to the Plaintiff concerning the foreshadowed meeting with the Council engineer. Mr Donnellan and making comments on some matters "which it seems to me would be entirely within your province to discuss and come to an agreement on without any risk". The principal, although by no means all of the matters mentioned were the size and shape of the easement, the amount to be paid for costs and the amount to be paid for compensation. So far as the first of these is concerned, it seems that a surveyor had drawn up amended plans changing the size and shape of the easement desired in order to get around some rock shelves. In so far as the second is concerned, Mr Donnellan pointed out that the Plaintiff had paid him $25,000 to that time, that because the Plaintiff had the running of the case his costs probably exceeded the Council's and if an award of costs were made in the Council's favour it would be a party and party award that would mean the Council recovering about 65% of its costs and agreement to somewhere between 65% and 80% would not be unreasonable.

56 A meeting between the Plaintiff and officers of the Council occurred on, 23 January. Mr Woodland reported on the meeting to Mr Donnellan orally and in writing. In his affidavit of 4 February 2009 Mr Donnellan said that Mr Woodland rang him. Mr Donnellan went on:-

I remember this telephone call well as it was the first time I had known Woodland to be manifestly angry. He was a very calm and phlegmatic man in my experience... I do recall him saying words to the effect of "I wouldn't settle with those bastards after that under any circumstances". ...

57 Mr Donnellan reaffirmed this recollection under cross-examination.

58 Mr Woodland's written report to Mr Donnellan records the Council's attitude as including:-

* Council does not want the easement but are prepared to grant one and extension to Ross Street based on us paying compensation, all council costs to date and further costs to wind down the case plus granting easement across our three blocks at the rear for benefit of properties to the north.

* Council costs to date approx $29k plus expected extra $11.3k to wind down.

* Revised easement totally unacceptable as encroaches on plan day care building works. They would consider only easement based on our previous layout.

* Regardless of the route of our easement we will be required to bore under any rock outcrops to preserve the amenity.

* Council are expecting costs of $89k to re-design and build our proposed drainage easement.

* They have had sound legal advice including a QC's that their case is solid and that they will recover all costs under any circumstances.

* They will not consider our physical commencement at all, that subdivision approval has lapsed.

59 Mr Woodland concluded with the comment:-

"In summary, pure unadulterated browbeating with obvious intent to intimidate."

60 In evidence Mr Woodland described the boring under the rock ledge as incredibly expensive. Asked if it found the Council's estimate of $89,000 "just unacceptable" he replied, "I found it very high, I thought it was very unfair." The tenor of Mr Woodland's evidence was also to the effect that there was no negotiation during the meeting and that the Council's main representative simply stated what Council would accept.

61 In evidence was a handwritten note of one of the Council officers that indicated that what the Council sought was not the whole sum of $89,000 but a contribution towards that amount. Taken to the document, Mr Woodland said that what he had written to Mr Donnellan was his interpretation of what was said and no-one informed him to the contrary. This note also made no reference to boring under rock.

62 Mr Donnellan denied a suggestion that he had given Mr Woodland advice to reject the offer that the Council had made during the course of the 23 January meeting.

63 On 25 January 2002, Mr Donnellan wrote a lengthy - including annexures, apparently consisting of some 67 pages - letter to Messrs Abbott Tout, He also sent a copy to Mr Woodland with a covering note saying, inter alia:-

Please look at this lengthy letter, which is designed to be a Judge's letter that can be tendered to the Court in support of an application for costs. Most importantly, would you look at the offer of settlement and sanction that offer.

64 In a conversation at about this time. According to Mr Woodland, Mr Donnellan said:-

This letter will serve as a Judge's letter and will outline everything that has occurred in this matter to date. This letter will be admissible in court so the judge will have the opportunity to see from beginning to end just how unreasonable, dictatorial and obstinate the Council has been. Once the judge reads this letter, I am sure he will come down hard on Council because of its outrageous conduct. If you are happy with this letter then I will send it to the other side.

65 In the letter to Abbott Tout, Mr Donnellan canvassed the history of events, characterised the Council's attitude as "entirely unreasonable, if not irresponsible" and made an offer to settle the proceedings upon terms along the following lines:-

1. The Council to agree to grant an easement in accordance with the amended application but with the terms of the easement modified to stipulate that any pipes etc are to be subterranean.

2. The Council to indicate that subject to the appropriate applications being made it will raise no objection to the connection of a drainage pipe through the easement with the Council's stormwater drainage system through Lot 14.

3. The Plaintiffs were to pay compensation in an amount of $3,000 or an amount which the respective valuers in consultation, agree is fair.

4. The Plaintiffs were to pay $15,000 towards the Council's costs and disbursements.

5. The Plaintiffs were to pay all of the costs of and incidental to the preparation and registration of the transfer and grant of the easement.

66 Mr Donnellan also sought to argue the merits of his clients case and referred to a number of previous decisions, viz:-

Kent Street v Sydney City Council [2002] NSWSC 268

117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504

Hanny v Lewis (1998) 9 BPR 16, 205

Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15, 845

Marshall v Council of the City of Wollongong [2000] NSWSC 137

Wengarin Pty Limited v Bryon Shire Council (1999) 9 BPR 16, 985

Mitchell v Boutagay [2001] NSWSC 1045; and

Goodwin v Yee Holdings Pty Limited (1997) 8 BPR 15, 975

67 In the course of the letter Mr Donnellan pointed out that the area, the subject of the proposed easement was less than 9 square metres in an area "which is inaccessible for child care purposes and that the total area of Lots 12 and 13 was approximately 3537 square metres and the minimum area required for a 30 place child care centre which the Council had resolved to construct was about 558 square metres.

68 Mr Donnellan never communicated to Mr Woodland any qualification in respect of the cases to which he had referred.

69 On 31 January 2002 Messrs Abbott Tout wrote rejecting the proposal. By letter of 4 February Mr Donnellan informed the Plaintiff of this rejection. Mr Donnellan's letter proceeded:-

It is always open to you to pull the plug on the proceedings at this stage, and prior to us incurring cancellation costs from Counsel, but of course we would not recommend that you take that course. The dye seems to be cast and there does not seem to be anything for it other than to litigate.

In relation to the costs of the litigation, which is the unpalatable side of things, I estimate that the hearing will take 3 days, particularly if the valuers are able to come to an agreement as to valuation evidence, and if that is correct, I think it will be something like the following:

70 The letter then contained a break-up of estimated fees totalling about $8,000 for counsel and $8,500 for solicitor's fees. In oral evidence Mr Woodland said that he took the estimate as such and that it would change if circumstances changed.

71 In January or February 2002 Mr Donnellan briefed Mr Nichols of counsel. The latter formed the view, and held the view throughout, that there were reasonable prospects of success but it was a matter on which reasonable minds could differ. Initially he thought that the Council would receive its costs but by the 16 May he had changed his mind to the extent of thinking that there was a very reasonable basis to argue that the Council should not be entitled to receive a costs order in its favour.

72 The Plaintiff's application for an order under Section 88K came on for hearing before Hamilton J on 13 to 15 February 2002. At that time his Honour made two directions. One required the experts for both parties to confer in relation to the proposed easement. The second required the Plaintiff to make an application under s138 of the Roads Act in respect of Lot 14 in Ross Street. That section prohibits a number of matters including carrying out work in or on a public road without the consent of the appropriate authority.

73 According to Mr Woodland, on 15 February 2002 in response to some concerns expressed by the Plaintiff, Mr Donnellan said "you will get your easement and very likely your costs as well" and also, "the Council are behaving outrageously and accumulating costs with all these witnesses. All they are trying to do is muddy the waters. Don't worry, the Judge is wise and will see through it."

74 In evidence Mr Donnellan said he could not remember telling Mr Woodland at that time that he would receive an easement and very probably his costs but, at the time, he did hold a strong view that Mr Woodland would obtain the easement and that there were good grounds for him to make an application for his costs.

75 On 18 February 2002 Mr Donnellan again wrote to the Plaintiff. In the letter Mr Donnellan provided an explanation of some of what had occurred and continued:-

I regret the expense that this case is putting you to, having regard now to the adjournment, but I think I can say with some confidence that you will get the easement. Nic and I both think that there is a good chance that you will also get your costs. There was a little hint of that in the Judge's remarks about the affidavit of Ms Holten. It is always risky to predict these things but I think I can offer you that encouragement.

76 In cross-examination Mr Donnellan said that he could not remember Mr Nichols expressing the view about costs attributed to him but that he would not have expressed himself as he did unless Mr Nichols had in fact said so. In evidence Mr Nichols denied that at the end of the 3 day hearing in February he thought that there was a good chance of the Court departing from the usual costs order.

77 On 23 April 2002 Mr Donnellan again wrote to the Plaintiff referring to what seems to have been a recent "flood of evidence" from Abbott Tout. In the letter Mr Donnellan described the Council's conduct as "a disgrace" and said that he was "still extremely hopeful that there will be an order for costs in your favour, or at least no order in favour of the Council because of the way that they have conducted themselves in the proceedings, and I do not think that the argumentation which they now produce is going to do anything other than annoy the Judge."

78 This "flood of evidence" included at least five further affidavits, containing in the words of Mr Nichols "additional and comprehensive expert opinion evidence" which for the first time in the proceedings provided credible engineering analysis of the drainage systems in Ross Street and its capacity to cope with stormwater run-off. The tenor of the evidence was that in many circumstances, the capacity was insufficient. The issues dealt with by the evidence included:-

1. The capacity of the drainage systems in the Panorama Parade and Ross Street sub-catchments.

2. The permissible stormwater discharge rate to the kerb in Ross Street and the need for the stormwater to discharge directly into a pit and not at the kerb.

3. Whether it was appropriate to use the method of determining maximum flow rates as Mr Staniland had done

79 On 9 May Manly Council wrote to Mr Woodland referring to his "Application for a Road Opening Permit" lodged on 27 February 2002. The Council said that it would treat the application as one under Section 138 and if the Court granted an easement across Lot 13 or some nearby premises then the Council would consent to the installation of a drainage pipe within Lot 14, adjacent to the boundary of Lot 13 on a number of conditions and, having stated the conditions, asked whether Mr Woodland wanted to pursue his application. The conditions included:-

1. The pipe in Lot 14 must be reinforced concrete pipe ("RCP"), of no less than 375mm in diameter at a depth no less than 500mm.

2. Mr Woodland must construct a pit in the northern gutter of Ross Street connecting that pit to the existing one with a further pipe 375mm RCP.

3. Mr Woodland would not be permitted to cut through any exposed rock surfaces on Lot 14 but could drill underneath them.

80 On 14 May 2002 Mr Donnellan wrote again principally dealing with a question of evidence provided by the Council on the topic and cost of piping to the far side of Panorama Parade. The letter included the following:-

On the question of costs, I think the approach that we will be adopting is that the original reason for refusing your application for an easement across Lot 13, namely, that as a matter of policy, easements should not be granted across public property, has been undermined by the resolution of 17 December, although for some reason I am not quite clear about Nick does not entirely share my conviction about that. I think I can say to you, borne maybe of my longer experience, that I am right on this point. Secondly, this case has been run on the problems associated with draining to Ross Street arising out of the Council's drainage structures and systems in the vicinity. That was never raised as a reason for refusing your application until the commencement of these proceedings. Once that had happened, of course, we were obliged to meet this basis for refusal which first appeared in the affidavits of the Council's officers. I think that the Judge is going to be mindful of that in assessing whether the statutory order of costs should be displaced. I always stand to be proven wrong in the end on a matter as discretionary as this but, in order to give you a little cheer in the midst of this dismal expense, I am prepared to say to you that I think that at worst the Judge is going to order that each party pay its own costs whatever the outcome.

81 The Plaintiff responded on the same day. His letter included:-

I hope you're right about the costs. It's been suggested I have rocks in my head.

82 On 15 May 2002, Mr Donnellan wrote to Mr Staniland seeking his views as to the practicability and cost of the drilling and other matters demanded by the Council but saying that he had suggested to the Plaintiff that he should accept the conditions stipulated in the Council's letter of 9 May. In paragraph 75 of his affidavit of 4 February 2009, Mr Donnellan said that if he had seen the Abbott Tout letter of 16 May at the time, he would not have advised Woodland to accept the offer in it in the absence of advice from Mr Staniland as to the cost implications of a 375mm pipe although in oral evidence he said that the significance of the 375 mm pipe had not occurred to him.

83 The trial before Hamilton J was due to resume on Monday 20 May 2002. At 3.07 pm on 16 May 2002 Messrs Abbott Tout sent another offer of settlement by facsimile transmission addressed to Mr Donnellan at his Gosford office. The terms of the offer included the following:-

(i) Mr Woodland was to pay $4,000 compensation - an amount apparently agreed between the valuers for the parties;

(ii) Mr Woodland was to pay "the Council's costs of and relating to these proceedings (including the grant of the easement and consent referred to below)";

(iii) The Council would grant the easement referred to in the amended summons;

(iv) The Council would grant consent under s138 of the Roads Act to construct drainage works in Ross Street (including Lot 14) connecting a pipe laid in the easement to the Council's drainage system on terms that included:-

(a) The pipe in Ross Street (including Lot 14) must be reinforced concrete pipe of no less than 375mm diameter.

(b) Mr Woodland must construct a grated inlet pit in the northern kerb and gutter of Ross Street and connect that pit to an existing one.

(c) No exposed rock on Lot 14 could be cut but could be drilled underneath.

84 The letter was expressed to be made in accordance with the principles set out in Calderbank v Calderbank and available for acceptance until 5pm on Friday 17 May 2002. A copy was forwarded to the Plaintiff on the afternoon the document was received.

85 This offer also was not accepted and provides the foundation for the second of the Plaintiff's principal complaints. It is said that the Defendant failed to advise that the offer should be accepted, failed to respond promptly with an offer that took out of the picture the 375mm requirement that the Council imposed in respect of s 138 and failed to advise the Plaintiff as to the implications of the offer being a "Calderbank" one.

86 In fact, on 16 May Mr Donnellan was engaged in a Court of Appeal hearing in Sydney, all day. On 17 May he was engaged in the Land and Environment Court. He gave evidence of there being indications that he returned to his office some time after lunch on 17 th . The evidence is not entirely clear but it is at least not unlikely that Mr Donnellan stayed in Sydney on the night of 16 May.

87 There is in evidence a letter addressed to Mr Woodland typed as emanating from Mr Donnellan. However the letter said, "Please find enclosed copy of letter received by us from Abbott Tout this afternoon. Mr Donnellan shall contact you in relation to same upon his return to the office later this afternoon." - wording that indicates Mr Donnellan was not there when the letter was written.

88 On the other hand Mr Nichols said that on 16 May Mr Donnellan phoned him, advised him of the offer and that he had had the letter read to him over the phone and detailed some of the terms of the offer. He said that in the conversation he said to Mr Donnellan:-

Patrick, I think we should try to resolve this if we can. I'm very concerned about the legal costs in the proceedings. Although we have a reasonable basis to argue that the Council should not get its costs, I think that the client should compromise on that issue and offer them something for their costs.

89 According to Mr Nichols, Mr Donnellan said he would be speaking to Mr Woodland about that.

90 Also on 16 May 2002 Mr Staniland sent a facsimile transmission to Mr Donnellan. On the topic of various piping proposals which had been advanced by the Council, Mr Staniland observed that the s 138 conditions referred to in the Council's letter of 9 May introduced a fourth option incorporating a 375mm diameter pipe. Mr Staniland observed:-

Boring under rock is silly enough but to accommodate 375 diam pipe and incorporate pit and bend may not even be realistic or possible.

91 Mr Staniland's reservations received support in a facsimile of 21 May 2002 from some contractors that was passed on to Mr Donnellan. The author of the letter said that boring under the existing rock shelf was not feasible because, inter alia, access pits would have to be excavated in rock, increasing the disturbance in the area and rock was likely to break away in large uneven pieces during pit excavation.

92 As has been said, the trial resumed on 20 May 2002. On that day there were discussions involving Mr Woodland, Mr Donnellan and Mr Nichols. Mr Donnellan said words to the effect that the proceedings were becoming very expensive and attempts should be made to settle them. Mr Nichols agreed and advised the Plaintiff to "come up with some kind of counter offer".

93 In his affidavit Mr Nichols also said that there was some explanation of the effect of a "Calderbank" offer, and expressions of opinion by Mr Donnellan and himself that, because of the way Council conducted itself, there were good arguments that the Council should not receive all its costs and, given the Council's offer of 16 May limited the time for acceptance to about 24 hours, it was probably not a valid "Calderbank" offer. At paragraph 27 Mr Nichols said that during the conference Mr Woodland made few comments and on occasions nodded which indicated to Mr Nichols that Mr Woodland understood what was being discussed. There were also discussions about the implications of the requirement for a 375mm pipe. Challenged that after 7 years he could have no clear recollection of such conversation, Mr Nichols said that he did.

94 In response Mr Woodland said that he did not recall receiving any talk about a "Calderbank" offer and denied that there was any statement to the effect that the offer received was probably not a valid "Calderbank" offer. Mr Woodland agreed that there had been discussion about the 375mm pipe. In oral evidence Mr Donnellan said that he could not recollect discussion about "Calderbank" offers at that time.

95 The hearing before Hamilton J continued on 20, 23 and 24 May and was adjourned until October. Soon thereafter the Court advised that the matter had been listed for 5 days beginning on 21 October 2002.

96 In his affidavit of 21 December 2008, Mr Woodland said that after court on one of these days, Mr Donnellan said words to the effect:-

I don't think we should be offering more than 20% of Council's legal costs. Based on our estimated costs to date, I think this would be about $15,000.

97 Mr Woodland said that he responded with words to the effect that if Mr Donnellan thought that was a fair offer, it should be made. He added that if either Mr Donnellan or Mr Nicholls had said that $15,000 was an insufficient offer, then he would have considered what they said and made a higher offer.

98 Correspondence indicates that on and about 6 June 2002 Mr Donnellan and Mr Nichols were of the view that the Plaintiff should make an offer of settlement to the Council and were exchanging correspondence as to what that offer might be. On 12 June Mr Donnellan wrote to Mr Woodland. In the course of that letter, Mr Donnellan did not retreat from his earlier assessments to the effect that the Plaintiff would receive an order for an easement, expressed the view that Mr Woodland should not consent to construct a drainage pit to enable structures to be hooked up directly to the Ross Street mains and that the 375mm pipes proposed were a nonsense and included the following:-

Nick Nicholls has proposed a letter which we need to send to Abbott Tout in response to the offer they have made us and the purpose of sending you the draft is to seek your approval in relation to the offer that we make on costs. I think that if the proceedings can be stopped by your making this payment to them for their costs you will be well and truly ahead. Could you let me know whether I can send the offer in this form. If you don't wish to offer to pay any of their costs at this stage, I will simply take that part of the letter out.

99 On 18 June Mr Woodland wrote saying that it was okay to send the offer as drafted. On 19 June the Defendant made a counter offer on behalf of the Plaintiff. It was endorsed, "Without prejudice save as to costs" and was in terms:-

In all the circumstances, our clients have instructed us to make the following offer in an attempt to resolve the proceedings:

(a) To pay compensation of $4,000 as agreed.

(b) To accept an easement as set out in paragraph (a)(i) of your letter on terms set out in paragraph (b) which we note have already been agreed to; and

(c) Our clients pay 20% of your client's reasonable legal costs as agreed or taxed up to a maximum of $15,000.

As the issue of road opening requirements is not a matter which falls strictly and directly within the scope of the proceedings, we propose that representatives of our clients meet to discuss and agree upon a proposal satisfactory both in terms of costs and in terms of any engineering requirements.

100 In the letter, reasoned objection was taken to the Council's proposal for a 375mm reinforced concrete pipe.

101 In his affidavit Mr Nichols said that Mr Donnellan had informed him that, "The most (the Plaintiff) is prepared to pay for in costs is a maximum of $15,000".

102 Mr Woodland denied that he had ever given such instructions. He said that Mr Donnellan had said that he did not think that Mr Woodland should be offering more than 20% of the Council's costs - an amount that Mr Donnellan estimated at $15,000 - and Mr Woodland had replied to the effect that if Mr Donnellan thought that was a fair offer, it should be made.

103 Mr Donnellan agreed that Mr Woodland had never said that he would not settle on terms that involved him paying more than $15,000 costs. Mr Donnellan could not recall advising Mr Woodland that he should or should not pay more than $15,000 towards the Council's costs. Mr Donnellan agreed that on or about 12 June was the first time he had suggested a sum for Mr Woodland to pay for the Council's costs. He said in evidence that he had not recollection of ever advising Mr Woodland to offer more.

104 After the May hearing Mr Nichols took the view that if the Council was awarded costs, it was likely to receive more than $15,000 costs but he was also of the opinion that, based on the Council's own conduct, there was a reasonable prospect of arguing that the Council ought not to be entitled to the whole of its costs.

105 The evidence did not include any reply from Abbott Tout to the letter of 19 June. It may be inferred that the offer contained therein was not accepted.

106 On 26 September 2002 Mr Donnellan wrote to Mr Woodland. The letter included a copy of the decision in King v Carr-Gregg (unreported, Foster AJ, 2 May 2002) and the following remarks:-

I enclose a recent decision which makes me think there is no question that you will get the easement; it is now a fight about who is going to pay the costs. Disgraceful!

107 Mr Nichols gave evidence that around 18 September he had pointed out to Mr Donnellan that he did not regard the decision in King v Carr-Greg as a complete answer to the Council's case. Mr Donnellan could not recall the conversation with Mr Nichols or passing on to Mr Woodland Mr Nichol's reservations.

108 On 3 October 2002, Abbott Tout wrote to Mr Donnellan purporting to reply to Mr Donnellan's " 'Without Prejudice' letter of 15 August" and "your open letter of 26 September". There are no such letters in evidence and the tenor of the reply does not suggest either of these references was to Mr Woodland's letter of 19 June. In the letter of 3 October, the Council offered to settle the proceedings on terms which, so far as are presently relevant, were:-

1. Mr Woodland should pay compensation in the sum of $4,000.

2. Mr Woodland should pay the Council's costs relating to the proceedings (including the grant of the easement referred to below).

3. The Council would grant an easement across that part of Lot 13 shown in the plan attached to the amended Summons.

4. The issue of the installation of pipes on Ross Street and Lot 14 was to be left unresolved.

109 The letter specified various terms of the easement and associated reciprocal covenant but it is not necessary that I detail these here. The letter made the point that the installation of pipes in Ross Street, including Lot 14, was not affected by the offer and was to be left unresolved by it. The letter also stipulated that the offer was made in accordance with the principles set out in Calderbank v Calderbank and said that its offer remained available for acceptance until 5pm on Tuesday 8 October 2002. There is no direct evidence of any reply.

110 It does appear that, at least ultimately, the topic of piping through Lot 14 was not an issue in the proceedings before Hamilton J. His Honour recounts that the Council had informed the Court that if an easement were granted it would grant consent under s 138 to discharge water through the road reserve. However, his Honour did not refer to the topic of what terms the Council might insist on. There was also some evidence in the case that suggested that at an earlier stage Mrs Woodland had made application for permission under s 138 of the Roads Act 1993 and permission had been granted. However, I am not persuaded that that was so. If permission had been granted, I would have expected some reference to it in the correspondence to which I have referred that deal with the topic. There was none.

111 On 18 October Mr Donnellan wrote to Mr Woodland informing him that Abbott Tout's estimate of their costs was $205,000 to that time and another $75,000 to conclude the case, also saying:-

... I am at a loss to understand how they could have arrived at such a figure. In any event, if that is the figure, there would be no benefit to you in settling on an agreement to pay their costs to date. I note that the total costs you have paid to us so far total $112,450.00.

112 On 21 October Mr Woodland wrote to Mr Donnellan saying, inter alia, that he did not feel inclined to pay Abbott Tout's costs but he was not encouraged by the decision in King v Carr-Gregg adding that:-

The Abbott Tout costs are certainly over the top but I'd expect nothing less from these toads. I don't feel inclined to settle their costs so we'll just push on and hope the judge is in a generous mood to our cause. Having said that I am definitely not encouraged by the recent case history you sent of King v Carr-Gregg... The fact that the pipe existed, although unrecorded, and that the Judge plainly considered the defendant to be somewhat unreasonable, the costs were still awarded to the applicant - doesn't look good for us.

113 On 22 October 2002 Mr Donnellan again wrote to Mr Woodland. He described the Abbott Tout fee figure as outrageous but it is not otherwise necessary to detail this letter.

114 In his affidavit of 29 August 2008 Mr Woodland deposed to Mr Donnellan having said to him on 23 October 2002:-

We have a very solid case and the outcome will be in our favour and at worst each party will have to bear their own costs.

115 In evidence Mr Donnellan said he could not recall and could not deny the suggestion.

116 The hearing before Hamilton J resumed on 23 October for some 3 days and Hamilton J delivered judgment on the Plaintiff's application on 12 May 2003. His Honour found that Mr Woodland had not established that the easement was reasonably necessary. Indeed his Honour also observed that Mr Woodland had not established that the easement was preferable and certainly not substantially preferable to a pump-out system.

117 On 20 June 2003 his Honour also delivered a judgment on the question of costs. His Honour ordered that Mr Woodland pay the Council's costs including, after 16 May 2002, those costs on an indemnity basis. His Honour found that "in the circumstances of this case as they prevailed in May 2002 it was not reasonable for the offer (in the Abbott Tout letter of 16 May 2002) to be refused'.

118 After engaging new solicitors the Plaintiff sought to appeal. Although the evidence is not as clear as it might be, the "appeal" would seem to have been an application for leave to appeal against the costs order. The application failed.

119 In Mr Woodland's affidavit of 29 August 2008 he said that in an email of 9 July 2003 he wrote,

I have not been given the opportunity to understand the meaning, repercussions of, and significance of a Calderbank offer under the law or otherwise. I remember even after that offer fell over Nick and yourself felt some confidence of both winning the case and getting our costs.

120 Mr Donnellan acknowledged that he had never sent a response. He gave evidence also that he could not recall explaining to the Plaintiff the significance of a Calderbank letter.

The Pleaded Breaches

121 These proceedings were commenced on 5 December 2007. Presumably in recognition of the Limitation Act, the claims of negligence and breach of contract relied on in the Statement of Claim were limited to events occurring "in and from December 2001". By reference to the paragraph containing the words quoted, the claims under the Fair Trading Act were similarly limited.

122 Subject to the qualification just mentioned, as pleaded, the Plaintiff's case that the First Defendant was negligent may be summarised as follows:-

(i) Failing to advise that it would be difficult to satisfy a court that the claimed easement was "reasonably necessary" within Section 88K and thus that the prospects of success were not good, at best uncertain, and there was real risk that the court might not grant the easement;

(ii) Failing to advise the Plaintiff that even if the easement was granted, the likely result was that it would on terms that the Plaintiff pay the Council's costs;

(iii) Failing to advise the Plaintiff that if they failed to accept the initial offer to settle and/or the second offer to settle (being respectively those contained in the Council letters of 21 December 2001 and 16 May 2002) and continued with the proceedings they ran a real risk of the court ordering the Plaintiff to pay the Council's costs on an indemnity basis from the date of such offers and this whether the court did or did not grant the easement;

(iv) Failing to advise the Plaintiff that if the matter proceeded to trial there was a real risk that the Plaintiff's costs may exceed $16,467;

(v) Failing to advise the Plaintiff that the Council's initial offer to settle and/or the second offer to settle should be accepted;

(vi) On 9 January 2002 orally recommending that the Plaintiff should not agree to pay the Council's costs and should make a counter offer in accordance with a draft prepared by the First Defendant;

(vii) On 18 January 2002 orally advising the Plaintiff not to agree to pay the Council's costs;

(viii) Between 21 December 2001 and 24 January 2002 orally advising the Plaintiff:-

(a) There were reasonable arguments that Council's behaviour was outrageous and that the Plaintiff may not have to pay Council's costs;

(b) There were some prospects of obtaining an order that the Council pay the Plaintiff's costs;

(c) That the Plaintiff should write to Council offering to settle the matter by contributing $15,000 toward the Council's legal costs;

(ix) Between 4 and 13 February 2002 orally advising the Plaintiff that he should proceed to court, that the hearing would take 3 days and the costs would be in the order of $16,467;

(x) By letter dated 18 February 2002 advising the Plaintiff that "I can say with some confidence that you will get the easement";

(xi) By letter dated 18 March 2002 advising the Plaintiff that "I can say with some confidence that you will get the easement. Nic (being Mr Nichols of Counsel) and I both think that there is a good chance that you will get your costs; (The reference to "March" would seem to be an error for "February".)

(xii) By letters of 23 April and 4 May 2002 advising the Plaintiff that the likely outcome was an easement in his favour and that the Defendant was extremely hopeful that there would be a costs order in the Plaintiff's favour and, at worst, there would be no order as to costs; (The reference to 4 May may be a mistake for 14 May.)

(xiii) On 20 May 2002 advising the Plaintiff:-

(a) He should try to settle the case as it was becoming very expensive;

(b) Council's conduct had been outrageous;

(c) The Plaintiff should not be paying all of Council's costs;

(d) The worst case scenario was that the Plaintiff would have to pay Council's costs on a party and party basis;

(e) The Plaintiff should offer something around 20% of Council's costs up to a maximum of $15,000;

(f) The First Defendant would consider the matter further, prepare a draft, and send it to the Plaintiff;

(xiv) On 12 June 2002 recommending a draft counter-offer be sent to the Council;

(xv) By letter dated 26 September 2002 advising that "there is no question that you will get the easement";

123 Put somewhat more succinctly by counsel, the defaults of the Defendant were alleged to be:-

(i) That in his letter of 8 January 2002 Mr Donnellan overestimated the prospects of success generally and in particular the prospects of the Plaintiff obtaining a favourable costs order;

(ii) That Mr Donnellan should have advised the Plaintiff to accept the offer contained in the letter of 21 December 2001 from Messrs Abbott Tout;

(iii) Alternatively to (ii), at the least Mr Donnellan should have advised the Plaintiff there was a real prospect of losing the Section 88K application and the prospects of persuading the Court to depart from an order that the Plaintiff pay all of the Defendant's costs was low;

(v) Failing to otherwise take steps in response to the letter of 21 December 2001 that would have led to settlement;

(vi) Failing to advise that the offer in the Council letter of 16 May 2002 should be accepted;

(vii) Alternatively, failing to respond promptly with a counteroffer that omitted the 375mm pipe requirement but otherwise complied with the Council offer; and

(viii) Failing to advise as to the significance of the 16 May offer being a "Calderbank" offer.

Conclusions

124 So far as is presently relevant, s 88K of the Conveyancing Act provides:-

1. The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement.

2. Such an order may be made only if the Court is satisfied that:-

(a) Use of the land having the benefit of the easement will not be inconsistent with the public interest; and

(b) The owner of the land to be burdened ... can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement; and

(c) All reasonable attempts have been made by the Applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful.

4. The Court is to provide in the Order for payment ... of such compensation as the Court considers appropriate unless ...

5. The costs of the proceedings are payable by the Applicant, subject to any order of the Court to the contrary.

125 The section became law in December 1995 and at the time of at least some of Mr Donnellan's advice there were only a limited number of cases as to the section's operation. Two, Coles Myer Ltd v Dymocks Book Arcade Ltd [1996] 7 BPR 14,638 and Application of Permanent Trustee Australia Ltd (unreported, Hodgson J, 22 July 1997) [TIPSTAFF CHECK ? (1997) 8 BPR 15,551] may be put aside as not involving any, or any significant, consideration of the "reasonably necessary" requirement or of the topic of costs.

126 In Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845 Hamilton J, after drawing attention to decisions on an analogous but differently worded Queensland provision, set out the following principles:-

(i) One should not interfere readily with the proprietary rights of an owner of land;

(ii) The requirement that the easement be "reasonably necessary" does not mean that there must be absolute necessity and the easement may be granted notwithstanding that another means of right of way may exist;

(iii) The use of the word "necessary" means that something more than mere desirability or preferability over the alternative means available

127 Hamilton J also ordered that the successful plaintiff pay the defendant's costs on an indemnity basis notwithstanding that there was no conduct on the part of the Plaintiff that could be regarded as unreasonable. His Honour's only reasons expressed for doing so were:-

Whilst Mr Lindsay SC argues that the defendant will be no better off than if they had accepted the earlier offer of $15,000 together with $5,000 toward costs (bearing in mind the lower amount of the costs they had expended at that point of time), and it follows that the order for costs ought not to be on an indemnity basis, in my view that is the basis on which the order ought to be made. I am told that Simos J made an order for indemnity costs in circumstances not dissimilar in this regard in the Coles Myer case.

128 In Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR 15,795, Windeyer J granted an easement for 6 months so as to enable the plaintiff to erect scaffolding above the defendant's roof to assist in the construction of a building on the plaintiff's land. Before citing Tregoyd Gardens Pty Ltd v Jervis his Honour observed that "'effective use or development' must relate to the relevant zoning and the type of development available for the land so as to give a reasonable return". His Honour accepted that there was at least one method of construction that would enable a building to be erected to the boundary without the easement sought, albeit that this would have involved re-design of the building that the plaintiff desired and construction of which had commenced.

129 The successful applicant for the easement was also ordered to pay costs (subject to exceptions in relation to two issues) although Windeyer J gave comfort to the idea that unreasonable behaviour on the part of a defendant to a s 88K application might well result in him not receiving a costs order.

130 In 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 8 BPR 15,917, Hodgson J granted easements in order that an inner city building occupying a whole site could be built. One easement was for a gutter to drain rainwater hitting the side of the Plaintiff's building where that wall extended above the height of a building on the Defendant's land. One was for scaffolding in the same general area, albeit the easement was wider. Although the report is not clear I infer that the latter easement was temporary and both of these easements involved space above the roof of the defendant's building. The third easement was to enable a crane used for construction purposes to also swing above the defendant's property.

131 Hodgson J observed that "reasonably necessary" does not mean "absolutely necessary" and said:-

In my opinion, (1) the proposed easement must be reasonably necessary either for all reasonable uses or developments of the land, or else for some one or more proposed uses or developments which are (at least) reasonable as compared with the possible alternative uses and developments; and (2) in order that an easement be reasonably necessary for a use or development, that use or development with the easement must be (at least) substantially preferable to the use or development without the easement.

132 His Honour also observed that a development occupying the whole site was financially much preferable to any alternative that did not involve the construction of a multi-storey building or which involved a building not occupying the whole site. Although the Plaintiff was ordered to pay the Defendant's costs, his Honour refused to order that these be on an indemnity basis saying that the terms of s 88K(5) were not such that an indemnity costs order should be made as of course.

133 In Hanny v Lewis (1998) 9 BPR 16,205, Young J referred to Tregoyd Gardens Pty Ltd v Jervis and 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 as supporting the proposition that there need not be absolute necessity but mere desirability was not sufficient. His Honour went on to say that one must look to see what is reasonably necessary for the effective use (or one may add, development) of the land and "the tone of the word 'necessary' is getting close to something which is a vital requirement". While accepting that an inclinator, rather than an existing 51 step wooden staircase would be desirable as benefiting the land of the Plaintiff, his Honour refused to grant an easement.

134 In Wengarin Pty Ltd v Byron Shire Council (1999) 9 BPR 16,985 it was conceded that the grant of an easement was appropriate, all means of access previously available or contemplated having been eroded and the only questions for the court were whether there were special circumstances so as to mean that no compensation should be ordered or, if there are no special circumstances, what was the quantum of the compensation to be paid. The case is of no assistance here.

135 In Katakouzinos and Anor v Roufir Pty Ltd (2000) 9 BPR 17,303, Hodgson J repeated the passage I have quoted above from his Honour's remarks in 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123. His Honour also expressed his adherence to a view expressed in the earlier case that a defendant is not automatically entitled to indemnity costs but that, although the defendant in the case before him had displayed some unreasonableness, that probably was not sufficient to disentitle him to costs. However, his Honour stood the matter over and the report does not record the rate his Honour had in mind in that latter statement.

136 In that case an easement for temporary scaffolding for construction of a building that extended to a common boundary was granted, the alternative being a significantly reduced building and delay.

137 In Kent Street Pty Ltd v Council of the City of Sydney [2001] NSWSC 268; (2001) 10 BPR 18,757, judgment in which was delivered on 10 April 2001, a building had been erected on an implicit, but erroneous, assumption that an adjacent laneway was a public road. A vehicle entrance, fire exit doors, windows and roof drainage system had been installed and used on that footing. All persons who it was thought might have an interest in the laneway were notified of the proceedings but none appeared. Barrett J, after referring to the remarks in 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 to the effect that "use or development with the easement must be (at least) substantially preferable to the use or development without the easement", observed at [14]:-

It would be a very heavy burden indeed for the owner of the plaintiff's property now to have to arrange things so as to avoid using the laneway in the way in which it is currently used. The use of the plaintiff's property with the current arrangements for vehicle access, emergency egress, natural light and roof water drainage must be substantially preferable to its use without those arrangements.

138 In Mitchell and Ors v Boutagy and Anor [2001] NSWSC 1045; )2001) 10 BPR 19,187 judgment in which was delivered on 1 November 2001, the local council had imposed, as a condition of development approval to a subdivision, that a drainage easement over an adjoining property be obtained. It was common ground that an easement was reasonably necessary and the issue as submitted for determination was as to the amount of compensation that should be paid. I do not find the case as of assistance here except on the topic of costs as to which Austin J said:-

Section 88K(5) states that the costs of the proceedings are to be payable by the applicant subject to any order of the court to the contrary. That, it seems to me, reflects a legislative policy. The policy is that the court should be empowered to require the defendant to grant an easement to the applicant against his or her will, but generally on the basis that the cost of obtaining the easement is to be borne by the applicant. It would only be if there were circumstances of unreasonableness on the defendant's part that the court would exercise its discretion to make an order to the contrary under subs. (5).

139 In that case the plaintiff had made an offer of money higher than the defendant was awarded by his Honour. However his Honour held that in relying on a higher valuation the defendant's conduct had not been unreasonable and ordered that the Plaintiff pay the Defendant's costs, but not on an indemnity basis.

140 In King v Carr-Gregg [2002] NSWSC 379, judgment in which was delivered on 2 May 2002, Foster AJ granted a drainage easement in favour of one lot over that of a neighbour. In some respects the circumstances were similar to that of Mr Woodland and a principal argument of the defendant in that case was that a pump-out system was a viable alternative and thus that the easement was not reasonably necessary. However Foster AJ rejected that contention not on the basis of the physical limitations or disadvantages of a pump-out system but on the basis that it was unlikely to be acceptable to the local council. Furthermore, in that a drainage pipe which would not significantly change had run through the site of the proposed easement for some years and a formal grant of an easement some years earlier seemed to have been overlooked, the case for a grant was substantially stronger than in Mr Woodland's case. Although Foster AJ found the conduct of the defendant before him to have been somewhat unreasonable, he still ordered the Plaintiff to pay the Defendant's costs, albeit not on an indemnity basis.

141 The case contains no significant exposition of the operation of s 88K although Foster AJ did observe:

While judicial translations of statutory words can, quite frequently, be of assistance in understanding and applying them in particular fact situations, such translations can never become a substitute for the words of the statute. Indeed, the using of such translations, which have proved helpful in the decision of other cases, may not always be of assistance in cases involving significantly different facts. It must be remembered that the basic question for decision in the present case is whether the granting of the sought for drainage easement is "reasonably necessary" for the use or development of the King property.

142 Against this background of the legislation and prior decisions, I turn to the issues that arise. In the first place I should say that there was nothing in the demeanour of any of the witnesses that cast any doubt on their credibility or reliability. Secondly, nor do I see anything in the content of the evidence to cast doubts on the honesty of the evidence given. There are inconsistencies but I am satisfied that they arise from defects in recollection. I have made and must make findings about some of them but I make it clear that in doing so I have acted on the basis of what seem to me to be the inherent probabilities of situations.

143 A feature of Mr Donnellan's advice to the Plaintiff during the period between when Mr Donnellan was first consulted in about April 1999 and the hearing that commenced on 13 February 2002, is the absence of any significant attention to the statutory test in s 88K, "reasonably necessary". Certainly the expression in Mr Donnellan's letter of 6 April 1999 "impractical by comparison with" the use of the proposed easement is close in meaning but the letter goes on to suggest a test "that pumping drainage to the road is going to be expensive and awkward to a degree which outweighs any detriment that there might be to the Council in having this easement granted over its property". Such a test is appreciably different, less stringent and introduces a standard, "detriment that there might be to the Council in having the easement granted" that bears no relationship to "reasonable necessity". And while it may well be that the issue of detriment to the Council would be relevant to other aspects of s 88K, the reference to that detriment in the 6 April letter was calculated to mislead.

144 Other remarks by Mr Donnellan tend to confirm that he did not appreciate the stringency inherent in the statutory test. Thus in his letter of 14 April 1999 he used the expression "not ... of the same utility ... so that it goes beyond being merely desirable to being something which is necessary". "Preferable alternative" is a term used in Mr Donnellan's letter of 20 April 2001 and he gave evidence to the effect that that letter was consistent with advice he was giving the Plaintiff.

145 In April 1999 Mr Donnellan told the Plaintiff that he had a strong case. I have no difficulty in accepting that, subject to any capacity problems in Ross Street, a gravity drain along the easement sought by Mr Woodland may have been preferable and perhaps much preferable to a pump-up to Panorama Parade but that of itself says nothing about reasonable necessity. The cases to which I have referred where easements were granted were all much stronger in the Plaintiffs' favour than was Mr Woodland's and when regard is had to the requirement of "necessity", albeit qualified, the statement that Mr Woodland had a strong case was not only unjustified but very much so. He had a case and, depending on how unattractive a pump out system could have been made to appear, I would not have characterised him as having no chance of success. However, Mr Donnellan's assessment, from which he did not resile, at least prior to the February 2002 hearing was inconsistent with the authorities, unduly optimistic and, in my view, to a degree that was unreasonable.

146 For similar reasons, Mr Donnellan's statements in his letter of 14 April 1999, "... we think it is quite likely that the Court would grant the easement for drainage ..." and in the letter of 23 April "...a likelihood that those proceedings will be successful" were also unreasonable.

147 The evidence of what Mr Donnellan thought and said during this period on the topic of costs does not all reflect a consistent view. Some evidence suggests that he had the positive opinion that the Plaintiff would be awarded costs; other, that Mr Donnellan went no higher than thinking that there were good grounds to argue that each party would be left to pay his or its own costs. There was evidence of a third view, somewhere between these two.

148 While recognising this inconsistency, it seems to me that the effect of Mr Donnellan's advice, and the Plaintiff's understanding of it, was the second of the possibilities mentioned, viz that there were good grounds to argue that each party would be left to pay his or its own costs. That was the view expressed in the conversations of 5 January 2000 and 9 January 2002 and in the letter of 8 January 2002. Of course, the Plaintiff had also been advised that, subject to the court exercising its discretion to the contrary, s 88K required an applicant to pay a respondent's costs.

149 I have no difficulty in accepting that on basis of the factors then apparent, there were some grounds for arguing that the Council should be deprived of, or at least a portion of, the costs of a hearing upon the ground that there were no reasonable grounds for opposing an easement that would seem to have no possibility of any significant or practical impact on the use of lot 13 (though Hamilton J, possibly taking account of a later stage of development of the child care centre, seems to have thought otherwise).

150 Furthermore, there is nothing in s 88K to suggest that public land should, by that very fact, be treated differently from private land. However, Mr Donnellan seems to have taken no account of the fact that in none of the cases to which reference has been made (and which seem to have included all of which he was aware) was there an order made that each party pay its own costs, much less an order that the defendant pay a successful applicant's costs - and this in circumstances where not all respondents were the examples of pure reasonableness. Undoubtedly Mr Donnellan's opinion was influenced by his view that the Council's conduct was "outrageous" and while the interference with the child care centre may well have been "nonsense", the policy arguments regarded as weak, and the Council's opposition regarded as unreasonable, I can see no basis for the extremity of Mr Donnellan's characterisation. The fact that one or more Council officers were in favour of the easement being granted was of limited weight for it is obvious that others thought differently.

151 When regard is had to the costs decisions in the cases to which I have referred, the only reasonable conclusion open was that there was a probability that the Council would not be ordered to pay its own costs. Mr Woodland was not so advised. Most of the costs orders in earlier cases were not on indemnity basis but it is clear that at least Hamilton J (and possibly Simos J) thought that that basis was an appropriate one to use even in the absence of any unreasonable conduct. In these circumstances, Mr Donnellan should have advised the Plaintiff of the possibility and risks that such an approach would be taken against him. It was unreasonable of him not to do so. A fortiori is this so once it became apparent that the proceedings were to be heard by Hamilton J.

152 Against the background of these remarks, I turn to the offer from the Council contained in its letter of 21 December 2001. In that the first and third proposals referred to future negotiations, they may have come to nothing but in the circumstances then prevailing there was no possible reason to reject those suggestions. Apart from the topic of compensation mentioned in the first proposal Mr Woodland could not conceivably have hoped to do better in respect of the matters there dealt with than was suggested in that proposal. And on the topic of compensation, the letter of 20 April 2001 makes it apparent that the difference between the parties was but $4,000, an amount that was not large in absolute terms and tends to pale into insignificance when compared with other amounts involved. (We know from Hamilton J's decision that ultimately there was agreement on this topic - in an amount of $4,000.)

153 The third proposal, for the grant of an easement by Mr Woodland over the rear of his land in favour of properties to the north, although not precisely defined appears not substantially different from an offer made in Mr Donnellan's letter to Abbott Tout of 10 January to grant an easement "along the south eastern boundaries" of the Plaintiff's property to drain properties to the north.

154 The second proposal, whereunder Mr Woodland was asked to pay all of the Council's "legal, valuation and other statutory expenses incurred, associated with the settlement of this matter" was, subject to one matter, no more expensive than an indemnity order for costs at that stage would have been. Certainly, that proposal involved no compromise on the Council's part but, if one accepts that the policy of the legislation was as Austin J observed in Mitchell and Ors v Boutagy and Anor , (and whether or not that decision was generally available prior to Mr Donnellan's reference to it in his letter of 25 January 2002) there was no compelling reason why the Council should have compromised.

155 The reservation referred to in the immediately preceding paragraph relates to the issue of the reasonableness of the Council's costs. As a matter of contract law that qualification would have been implied, but the express terms of the proposal certainly provided scope for subsequent argument as to what was encompassed by its terms.

156 Subject to that reservation, the Council's offer in the letter of 21 December, at least in its terms, provided Mr Woodland with a real prospect of obtaining the easement he desired on terms no more exacting than he was not unlikely to have had to meet under a Court decision, a decision that was by no means certain to be in his favour. When on 8 January 2002 Mr Donnellan wrote to the Plaintiff enclosing a counter offer he proposed, he gave to the Plaintiff advice. That advice did not extend to pointing out to Mr Woodland the advantages of accepting the Council's offer, and the risks of rejecting it, and did nothing to correct the earlier erroneous advice as to the Plaintiff's prospects of success in his s 88K application. Given that Mr Donnellan had undertaken the task of giving advice at that time, he was under an obligation to advise concerning these matters and to cure the negligence in the advice previously given.

157 In his letter of 21 January 2002 Mr Donnellan did provide Mr Woodland with more measured advice although it was still deficient in not advising Mr Woodland of the, at least substantial, risk that he would not succeed in his court proceedings seeking an order for the grant of an easement and, if he failed, would almost certainly have to pay his own and the Council's costs.

158 I would not otherwise regard what was said in the letter on the topic of costs as a breach of duty. Certainly Mr Donnellan could have said more on the difference between the "outrageous" conduct of the Council to which he referred and "seriously outrageous conduct" but his remarks to the effect that the s 88K provision on costs was "going to be a difficult prescription to overturn in the absence of seriously outrageous conduct on the part of" the Council was a fair warning of the risks inherent in what s 88K said on the topic of costs. There were also risks in trying to make any agreement with the Council contingent on the Council agreeing that there had been substantial commencement of the subdivision by reason of the construction of a footpath. Such work was not "on the land" the subject of the Development Approval - see Hunter Development Brokerage Pty Ltd v Cessnock City Council (2005) 63 NSWLR 124 - and certainly the matter was not so clearly to be decided in the Plaintiff's favour that its introduction did not add another layer of possible dispute. And there was nothing in the evidence before me to suggest that renewal of development consent would have been unduly difficult to obtain.

159 There followed the meeting between Mr Woodland and officers of the Council. The contradictory nature of the evidence concerning events at that meeting and of correspondence at that time raises questions whether at that time there was any prospect of settlement but this is more conveniently left until I turn to the topics of causation and damages.

160 Although the Statement of Claim asserted that some oral advice was given between 4 and 13 February 2002, the evidence did not disclose any of significance during this period. Mr Donnellan's written advices to the Plaintiff on 4, 15 and 18 February, in April and in the first half of May to the effect that he should not abandon the proceedings and would obtain an easement reflected a view of the litigation which, as I have indicated above, was unreasonably optimistic. I am not persuaded that Mr Donnellan said on 15 February, as Mr Woodland asserted, that Mr Woodland would "very likely" get his costs. In his letter of 18 February Mr Donnellan used the expression "good chance" and I am not persuaded that he would have expressed the matter more highly three days earlier. (There is also nothing to suggest that Mr Woodland acted on the basis of the more optimistic view.) Nevertheless what I have said above indicates that even the reference to "good chance" was an unduly, and I think, an unreasonably, optimistic view of the likely outcome of the costs question.

161 Of course, by at least the latter part of this period counsel had been engaged. Mr Nichols conceded that his view of the costs issue varied during the time he was involved but his evidence never went so far as to concede that he thought the Plaintiff had a good chance. I incline to the view that Mr Donnellan's account in the letter of 18 February 2002 of Mr Nichols' opinion was erroneous but I would be confident not deliberately so. What was written argues for Mr Nichols having said something, carelessly expressed or misunderstood. The evidence as to any conversation in this regard was virtually non-existent and I would not be prepared to find fault on Mr Donnellan's part in attributing to Mr Nichols the view that he did.

162 As I have said, Mr Donnellan's response to the letter from Messrs Abbott Tout of 16 May 2002 provides the foundation for the second of the Plaintiff's principal complaints. It is said that Mr Donnellan breached his duty in that he:-

Failed to advise that the offer should be accepted, failed to respond promptly with an offer that took out of the picture the 375mm (pipe) requirement that the Council imposed in relation to s 138, and failed to advise the Plaintiff as to the implications of the offer being a "Calderbank" one.

163 Before coming to the question of whether there was any breach of duty, I should address the question of whether these failures occurred and if so in what circumstances. In the first place, I am satisfied on the balance of probabilities that Mr Donnellan was in Sydney at the time the letter of 16 May was received in his office at Gosford. The letter to Mr Woodland of the same day provides support for this view. Mr Nichol's evidence tends to indicate that Mr Donnellan must have seen the Abbott Tout letter on 16 May but neither that nor the terms of the letter provide grounds for concluding that Mr Donnellan was at fault for not replying in the 26 hours or so limited by the terms of the letter for reply. In the normal course solicitors have a number of demands on their time in any day: On 17 May Mr Donnellan had obligations in another case. In these circumstances I find it impossible to conclude but his failure to reply within the time limited by Messrs Abbott Tout was unreasonable or any breach of duty.

164 The matter is a fortiori when regard is had to the nature of the issues involved in Abbott Tout's offer. The issue of drilling through rock and the installation of a 375mm concrete pipe had been raised for the first time in Abbott Tout's letter of 9 May. The cost and practicality of such matters were not a matter for a solicitor. Mr Donnellan had sought Mr Staniland's views on the topic. The evidence does not make clear whether Mr Donnellan read those views on 16 or 17 May but given their terms, whether or not Mr Donnellan read them, he could not reasonably have advised the Plaintiff to accept the 16 May offer that required the Plaintiff to commit to the pipe and drilling. These requirements were matters that, in the view of Mr Staniland, might not even be possible. Without knowledge that they were, and some knowledge of the cost of such actions, it would have been a breach of Mr Donnellan's duty to advise acceptance of the proposal. It is to be noted that Mr Staniland's view was supported by a contractor some five days later.

165 Mr Nichols had expressed the view that the Abbott Tout letter of 16 May was probably not a valid "Calderbank" offer. In my view, it certainly was not. Given the matters just mentioned, it was not unreasonable for the offer not to be accepted in the time limited - See Leichhardt Municipal Council v Green [2004] NSW CA 341 at [46]; Evans Shire Council v Richardson [2006] NSWCA 61 at [26]. Certainly, it was not unreasonable for Mr Nichols to take the view he did.

166 In arriving at the conclusions just expressed I do not ignore the decision of Hamilton J to order indemnity costs on the basis of the letter of 16 May and that an application for leave to appeal was refused. I do not find it necessary to say more about his Honour's decision other than that there is no reference therein to the issues of the time limited for acceptance or to the complexities faced by the Plaintiff and Mr Donnellan in consequence of terms of the offer involving drilling and the concrete pipe and his Honour's decision does not incline me to depart from the conclusions I have expressed.

167 Another complaint is that the effect of a "Calderbank" letter was not explained to Mr Woodland. I am not persuaded of the factual basis for this complaint. Mr Nichols says an explanation was given on 20 May and a "Calderbank" letter is of such significance that the inherent probabilities favour it having been explained. Mr Woodland no doubt had a great deal on his mind at about that time and, particularly if he was also advised that the letter was probably ineffective as requiring a response within 24 hours, it is easy to understand that Mr Woodland may not have remembered an explanation being given.

168 I turn to the complaint that Mr Donnellan failed to respond promptly to the 16 May letter with a counter-offer that omitted the 375mm pipe requirement but otherwise complied with the Council offer. Mr Donnellan did respond with his letter of 19 June and although that may not have been "prompt", the change of tack in putting to one side the s 138 issue does not persuade me that there was any negligence in not sending that letter earlier.

169 Furthermore, even though the letter from Mr Donnellan of 19 June and that from Abbott Tout of 3 October 2002 show a common willingness to remove from the proceedings before Hamilton J the s 138 question, there yet remained a great gulf between the parties' respective positions. Mr Donnellan's letter of 19 June offered 20% of the Council's costs up to a maximum of $15,000 whereas Abbot Tout's letter demanded "the Council's costs". I do not see any negligence in Mr Donnellan's conduct at that stage that was not simply a reflection of his earlier views on the prospects of the Plaintiff obtaining an easement and an order for costs.

170 I should acknowledge that although the Abbott Tout letters of 16 May and 3 October 2002 go into a great deal of detail as the terms of any easement and also stipulate for some positive covenants relating to it, those matters are of a nature that they are unlikely to have been a sticking point preventing agreement. Otherwise, and apart from the matter of costs, the offers in Mr Donnellan's letter of 19 June and in Abbott Tout's letter of 3 October are very similar.

171 In the result, in respect of Mr Donnellan's dealing with the 16 May Abbott Tout letter, I see no breach of his duty to the Plaintiff in the respects alleged in the Statement of Claim

172 To summarise, Mr Donnellan was negligent in advising the Plaintiff to the effect that his case for the granting of the easement was strong and in failing to advise that there was a real or substantial risk that the easement would not be granted. Mr Donnellan was negligent also in not advising the Plaintiff that there was a probability that, even if the easement was granted, Mr Woodland would be ordered to pay the Council's costs. This negligence was repeated on a number of occasions when contrary views were expressed. Mr Donnellan was negligent in not advising the Plaintiff that there was a risk that any costs ordered might be on an indemnity basis.

173 Turning to the period encompassed by the pleaded defaults and within the limitation period, Mr Donnellan was negligent in not advising the Plaintiff of the advantages of accepting the offer of 21 December 2001 and of the disadvantages in rejecting it. Having undertaken to advise the Plaintiff following receipt of the letter of 21 December, Mr Donnellan failed in his duty by not correcting his earlier wrong and negligent advice. Mr Donnellan was not negligent in his responses following receipt of the Abbott Tout letter of 16 May 2002.

Causation and Damages

174 In the circumstances of this case it seems to me convenient to address these issues before coming to the topic of Advocates' Immunity.

175 There can be no doubt that subsequent to the Defendant's acts of negligence that I have found occurred (and which are within the limitation period) the Plaintiff incurred a great deal of expense in connection with his s 88K application. In accordance with s 5D3(b) of the Civil Liability Act, the Plaintiff was not allowed to say what he would have done if differently advised. However he did say that it was not his expectation or intention in December 1999 to pursue the matter to the end through court proceedings particularly if he was to be responsible for the Council's costs and that at all time he was concerned about having to pay legal costs of the Court hearing and the prospect of paying Council's costs even if successful. His evidence continued:-

The type of costs requested by Council were not beyond what I was prepared to pay if I was advised or believed that this was reasonable or appropriate in the circumstances of even if there was a reasonable debate as to whether the First Offer may be worth accepting. Based upon the advice of the First Defendant outlined above I did not think that First Offer was reasonable or appropriate in the circumstances.

176 There is nothing in the evidence to suggest that the Plaintiff was of a nature or disposed to pursue the proceedings against the Council willy-nilly, and common experience suggests that if he had been advised after the Council letter of 21 December 2001 was received that there were substantial risks that he would fail because an easement was not "reasonably necessary" and that he would probably have to pay the Council's costs he would not have pursued the matter as he did and would have been willing to settle on terms more disadvantageous to himself than those he, on the Defendant's advice, thereafter proposed to Messrs Abbott Tout.

177 Of course, one must recognise that the litigation had commenced and costs incurred and the Plaintiff may not have readily just walked away, accepting the need for a pump-out system. Nevertheless, it seems to me that the likelihood is that if properly advised when Mr Donnellan wrote to him on 8 January 2002, the Plaintiff would probably have accepted the proposal in the Council letter of 21 December 2001.

178 Can one conclude that it is probable that proceedings would have settled at that time? In my view the answer to this question is, "yes". In that connection it is clear that the first part of the Council proposal referred to the Plaintiff making only a contribution to the cost of a drainage line from the easement to Ross Street. This accords with the handwritten note of one of the Council officers associated with the meeting of 23 January 2002 and tends to make it likely that Mr Woodland was erroneous in his impression that in January 2002, the Council was seeking $89,000 from him for this drainage line.

179 The sticking point in the negations that the Council letter commenced was costs and had Mr Woodland been appropriately advised, it is probable that he would have agreed to the Council's demands in that respect.

180 I do not ignore the fact that later in the year the Council was demanding a much larger pipe be constructed and imposing expensive or impossible methods of construction. If that proposal was as unrealistic as Mr Staniland suggested or the Council undertook the work as the offer of 21 December envisaged, then it seems unlikely that that form of work would ultimately have been insisted upon. In any event, the 21 December letter was merely seeking from Mr Woodland a contribution in this regard.

181 If these conclusions be right, then the costs incurred by Mr Woodland from that time on were a consequence of Mr Donnellan's erroneous, and in my view negligent, advice.

182 I should acknowledge that in arriving at the conclusions that I have, I have taken into account the considerations mentioned in s 5D of the Civil Liability Act. It was not suggested by counsel that in the circumstances here, those considerations added anything of significance to the long accepted principles of negligence and causation and I do not regard them as doing so.

183 Neither counsel addressed to any significant degree on the details of the damages claimed, even on the apparent inconsistencies in the Plaintiff's evidence as to what his loss was. In his affidavit of 29 August 2008 at [70] he said that the total costs in the matter, both his own costs and Council's costs amounted to $470,846.20. Exhibit B contained what seems to be a summary of his claim consisting of amounts of $381,441.43 plus $28,606.10, i.e. $41,047.53 although it was also acknowledged that this sum would be liable to reduction depending on the date when I found that any negligence occurred. Although I have not studied them at length documents included in Exhibit B appear to contain sufficient detail to enable a fairly reliable calculation or estimate to be effected as to the costs that were incurred subsequent to 8 January 2002 and which can fairly be regarded as flowing from Mr Donnellan's negligence. Clearly not all of the amounts included in Exhibit B answer this description.

184 In that affidavit at [74, 75] Mr Woodland said that following advice from new solicitors he re-applied to Council to obtain the easement and suggested granting a drainage easement over his property to neighbours above him in the street as well as to the Council and the Council had granted the easement on these terms. Mr Woodland said that he was in the process of installing the appropriate pipe work that will cost approximately $10,110.70.

185 In a later affidavit of 15 October 2010 Mr Woodland detailed costs he said that he had incurred in obtaining the agreed easement - $15,724.70 - and said that there would be further costs that he estimated at approximately $5,000. I note that some of the costs included in Exhibit B seem related to this agreed easement rather than to the costs of the litigation with the Council and presumably are of a nature that would have been incurred in consequence of any settlement with the Council in or about January 2002 in any event.

186 In these circumstances it seems to me most appropriate that I should defer making my own assessment of the Plaintiff's loss or damages without further assistance and without addressing Mr Emmett's remarks at page 181 of the transcript.

Advocates' Immunity

187 It was submitted on behalf of Mr Donnellan that, even if it were found that there were breaches of duty by him that caused or contributed to loss suffered by Mr Woodland, he was not liable to compensate Mr Woodland by reason of the doctrine of advocate's immunity. I disagree.

188 In D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 at [86]; (2005) 223 CLR 1 at p31 the majority of the High Court embraced the remarks of Mason CJ in Giannerelli v Wraith (1988) 165 CLR 543 at 560 to the effect that the immunity encompasses work done in court or "work done out of court which leads to a decision affecting the conduct of the case in court" or, to express the same test differently, "work intimately connected with" work in a court. Mason CJ had endorsed remarks of McCarthy P in Rees v Sinclair [1974] 1 NZLR 180 at 187:-

... the protection exists only where the particular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing.

189 In D'Orta-Ekenaike v Victoria Legal Aid at [151] McHugh J endorsed the same test. At [45] the majority also said that "the central justification for the advocate's immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances".

190 In this case the conduct of the Defendant about which complaint is made was not concerned with how proceedings against the Council should be conducted but whether such proceedings should be conducted, or later, should continue to be conducted, at all.

191 Clearly advice not to institute proceedings and which was followed could not sensibly fall within the test "work done out of court which leads to a decision affecting the conduct of the case in court" or "work intimately connected with" work in a court. Nor would the justification for the immunity lead to the conclusion that it did. It is difficult then to see that advice to the opposite effect, viz. to sue, even if also followed, should be protected by the immunity. While it may be said that such advice has a close connection with the proceedings in that the advice may have been a cause of the proceedings being conducted at all, it does not seem to me that, without more, it bears on "the conduct of the case in court" or "on the way that cause is to be conducted". Furthermore, if the High Court had wanted the immunity to extend to all advice that led to litigation, it would have been very easy to say so. Given the emphasis in the passages to which reference has been made to "affecting the conduct of the case in court" or work "intimately connected with work in a court", I find it impossible to regard the immunity as encompassing advice given whether to institute proceedings or not merely because proceedings may be, or in fact are, instituted. The references to "conduct of the case in court" and "intimately" make it clear that mere connection or relationship between the conduct that subject of challenge and any litigation is not sufficient.

192 The contrary view, viz. that any advice to sue or that contemplated proceedings would succeed was protected if proceedings ensued would impose a most unsatisfactory conflict of interest on those advising. Assuming advice was followed, if they negligently said, "don't sue" they would not have the immunity: If they said "sue" they would. Such a result cannot be right.

193 The result is not as obvious once one comes to consider advice given during the currency of proceedings. Advice simply, "You will succeed if you press on", "Discontinue, the case is hopeless", or something in between, such as "You should accept a verdict for half", much more readily falls within the description of "affecting the conduct of the case in court" or "work intimately connected with" work in court or "affecting the way" a cause is to be conducted. In D'Orta-Ekenaike v Victoria Legal Aid itself the advice the subject of the decision that immunity applied was to the effect that D'Orta-Ekenaike , who had been charged with rape, did not have a defence to the charge, and that if he pleaded guilty he would receive a substantially lesser sentence than if he contested the charge and was found guilty.

194 Counsel for the Defendant sought to place the immunity on a wider basis. He submitted that:-

The High Court says that the Plaintiff cannot be heard to say that Hamilton J was wrong. The shoe is on the other foot when it comes to the so called second offer, that made late on 16 May 02, for acceptance by close of business on 17 May. Hamilton J found that the offer was capable of acceptance, and that it was unreasonable for Mr Woodland to have failed to accept it. Likewise, and contrary to the opinions of Donnellan and Nichols, Hamilton J held that Council's conduct was not such as to disentitle it to costs. The High Court says that Donnellan cannot be heard to say that Hamilton J was wrong."

195 However, this submission takes the matter well beyond what was said in D'Orta-Ekenaike . At [78] the majority drew attention to cases, including assault cases, where issues can be the subject of civil and criminal proceedings and where inconsistent results may ensue, pointing out:

[78] ... But in none of those actions was the person who would seek to challenge the outcome reached in some earlier (criminal) proceeding a party to that earlier proceeding.

[79] In cases where a client sues an advocate, the client will always have been a party to the proceeding the result in which is challenged. If effect is to be given to the principle that decisions of the courts, unless set aside or quashed, are to be accepted as incontrovertibly correct, it must be applied at least to the parties to the proceeding in which the decision is given. The final outcome of the proceeding, whether "civil" or "criminal" or a hybrid proceeding, must be incontrovertible by the parties to it.

[80] If that is right, it follows that no remedy is to be provided if its provision depends upon demonstrating that a different final result should have been reached in the earlier litigation. ...

196 Their Honours went on to observe that intermediate results and decisions on costs said to have been wasted should not be treated differently, in the case of costs, "lest a dispute about wasted costs becomes the vehicle for a dispute about the outcome of the litigation in which it is said that the costs were wasted" - see at [83].

197 Earlier, at [77], the majority had embraced remarks to the effect that there is a public need "for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct". However these remarks must be seen in context. In addition to the assault and other cases to which their Honours themselves referred, it is not uncommon that in the course of argument earlier decisions are suggested to have been wrongly decided. The sorts of cases to which the High Court was directing its attention - see [67] - [70] - were ones where a plaintiff was seeking to say that, but for an advocate's conduct, in an earlier case there would have been a different result. The High Court was not deciding that a person not a party to earlier proceedings was bound by it or, in the circumstances of this case, that because Mr Donnellan might want to say that Hamilton J was wrong in his decision concerning the easement or costs, therefore there is immunity and Mr Woodland cannot sue. This is not a case where the remedy Mr Woodland seeks, as was said by the High Court at [80], "depends upon demonstrating that a different ... result should have been reached in the earlier litigation".

198 And though I do not need to decide the issue, it does not seem to me that advice whether to accept or reject the Abbott Tout offer of December 2001 was advice "affecting the conduct of the case in court" or work "intimately connected with work in a court" in any meaningful way. The offer did not refer to the making of orders in Court and although no doubt agreement pursuant to the offer would have resulted in some Court order, be that for the grant of an easement or for dismissal of the proceedings, the nature and circumstances of the advice seem to me to take it outside the breadth of the immunity.

199 Attention was drawn to the decision and remarks in Symonds v Vass [2009] NSWCA 139. In that case Giles JA, with whom Beazley relevantly agreed, said at [26]:-

The rationale enunciated in D'Orta-Ekenaike v Victoria Legal Aid could bring a wide application of the immunity. Whether the work is negligently performed through act or through omission, and whether or not it leads to an overt decision, there cannot be re-litigation in which it is asserted that, but for the negligence, a different result would have been reached. According to the rationale, it does not matter that the client does not seek to overturn the prior result, but uses it as the basis for complaint . The re-litigation is regarded as challenging a lawful result and so as offending the finality principle, distinguished from challenge by appeal because it would be re-litigation "of a skewed and limited kind" ( D'Orta-Ekenaike v Victoria Legal Aid at [45]). (Emphasis added in submissions)

200 It was submitted that "Giles JA made the point that neither the Plaintiff nor Defendant in this case can use Hamilton J's judgment either as a sword or shield. Use of the judgment as a sword, (Hamilton J was right, Donnellan was wrong), invites attack upon the judgment in defence of the allegation. Use of the judgment as a shield, (Hamilton J was right that the first offer did not compel acceptance), invites attack upon the judgment in answer to the defence".

201 The decision in Symonds v Vass was that in the absence of proper findings of negligence, the Court was unable to determine whether an advocates' immunity applied in that case. Hence the remarks quoted were obiter. In any event the Plaintiff's claim here is not that, but for the negligence, a different result would have been reached and, at least so far as the decision concerning the easement is concerned, does not invite re-litigation of the proceedings before Hamilton J. It is not a case whether Hamilton J was right or wrong in declining to order an easement in favour of the Plaintiff. Though not pleaded in these terms, the issue on liability in essence is whether the Defendant's advice at particular times fairly reflected the state of the law at those times and included appropriate qualifications concerning any risks. The issue on causation is what would the Plaintiff have done if appropriately advised and how does the result of that compare with the result of the decision of Hamilton J.

202 The issue so far as costs is concerned is whether the Defendant's actions or inaction was unreasonable to a degree sufficient to amount to a breach of duty and whether his advice fairly reflected both the law and a reasonable assessment of the circumstances and, again, included appropriate qualifications concerning any risks.

203 In D'Orta-Ekenaike at [154] - [156] HcHugh J gave examples of cases where the immunity had been held and not held to exist and counsel made reference to such decisions here. I confess I do not find all of the decisions reconcilable although support for the conclusion at which I have arrived is provided by Dansar Pty Ltd v Pagotto [2008] NSWSC 112. In that case Harrison J held that the immunity did not apply to advice not connected with the conduct of proceedings but to the question of whether or not they should have been brought to an end. His Honour went on to say, at [94]:-

... The present case does not interfere with the principal of finality at all. The decisions in the first proceedings and the second proceedings are not said to have been reached wrongly by any failures on the part of the defendants. It has not become necessary to reconsider those decisions. On the contrary, they are the basis upon which the present proceedings are founded. The plaintiffs contend that if the advice had been appropriately given, the matter would never have reached the stage where there would have been judgments... Similarly, if the appropriate advice had been given, the third proceedings would never have been commenced. Where the principle of finality and the judicial system as part of the governmental structure do not arise, there is no occasion for the application of the doctrine of advocates' immunity: Donellan v Watson (1990) 21 NSWLR 335 at 337, 343, 344 and 347.

204 In Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85, there are a number of statements by Steytler P and Newnes AJA along similar lines although the nature of that case was such that no definitive statement by their Honours was required.

205 In short the conclusion at which I have arrived is that advocates' immunity does not operate so as to preclude Mr Woodland succeeding in his action against Mr Donnellan for the advice he gave on or about 8 January 2002 and his failure then to correct earlier advice.

206 This conclusion made it strictly unnecessary for me to pursue the Plaintiff's further claim in connection with Abbott Tout's letter of 16 May although, as I have said, I do not regard Mr Donnellan's actions consequent on that letter negligent in any of the respects alleged

207 In light of what I have said on the topic of the quantum of damages, the orders that seem to me appropriate at this stage are:-

(i) Verdict for the Plaintiff in an amount of damages to be assessed; and

(ii) Stand the proceedings over for mention with a view to then fixing a date for consideration of the topic of damages.

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Decision last updated: 04 April 2012