Cassidy v Sydney Water Corporation (No 2)

[2008] NSWLEC 246

Land and Environment Court

of New South Wales

CITATION:

Cassidy v Sydney Water Corporation (No 2) [2008] NSWLEC 246

PARTIES:

Peter John Cassidy (First Applicant)
Hayley Estelle Cassidy (Second Applicant)
Sydney Water Corporation (Respondent)

FILE NUMBER(S):

30233 of 2007

CORAM:

Jagot J

KEY ISSUES:

Costs :- compensation for compulsory acquisition of land - whether applicants entitled to the usual order as to costs.

CASES CITED:

Banno v Commonwealth of Australia (1993) 45 FCR 32
Cassidy v Sydney Water Corporation [2008] NSWLEC 223
Nasser v Roads and Traffic Authority (NSW) (2006) 149 LGERA 289
Overton Investments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (2001) 113 LGERA 439
Serbian Cultural Club 'St Sava' Inc & Serbian Cultural Club Limited v Roads and Traffic Authority of New South Wales (No 2) [2008] NSWLEC 78

DATES OF HEARING:

27 August 2008

EX TEMPORE JUDGMENT DATE:

27 August 2008

LEGAL REPRESENTATIVES:

APPLICANTS
Mr P Tomasetti SC
SOLICITORS
Colin Biggers & Paisley

RESPONDENT
Mr J J Webster SC
SOLICITORS
Bartier Perry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

27 August 2008

30233 of 2007

PETER JOHN CASSIDY
First Applicant

HAYLEY ESTELLE CASSIDY
Second Applicant

SYDNEY WATER CORPORATION
Respondent

JUDGMENT

Jagot J:

1 On 18 August 2008 I delivered my principal reasons for the determination of the applicants’ entitlement to compensation in this matter (Cassidy v Sydney Water Corporation [2008] NSWLEC 223). The only remaining issue between the parties is costs.

2 Sydney Water submitted that there should be no order for costs in the applicants’ favour or that the order for costs should be capped at 50% of the applicants’ costs. The respondent supported these submissions on the following grounds: - (i) the applicants’ initial claim was for $9,000,000 and then $10,000,000, which was grossly exaggerated (see Banno v Commonwealth of Australia (1993) 45 FCR 32), (ii) while the claim was reduced during the hearing, it still remained grossly exaggerated (Nasser v Roads and Traffic Authority (NSW) (2006) 149 LGERA 289), (iii) the time taken to hear the matter was extended by reason of the applicants’ valuation and planning evidence, in circumstances where Mr Phippen’s original valuation evidence was abandoned and Mr Harding’s evidence rejected, (iv) the claim for disturbance above that agreed between the parties, other than solatium, failed, (v) the applicants’ flooding evidence was rejected, (vi) the applicants only received 13.75% more than the Valuer-General’s assessment, and (vii) on a realistic assessment of the litigation, Sydney Water succeeded and the applicants failed (Overton Investments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (2001) 113 LGERA 439 and Serbian Cultural Club 'St Sava' Inc & Serbian Cultural Club Limited v Roads and Traffic Authority of New South Wales (No 2) [2008] NSWLEC 78).

3 The applicants disagreed with Sydney Water’s characterisation of the proceedings and their outcome. The applicants submitted that: - (i) the planning and valuation issues were complex and the applicants acted reasonably in the litigation, (ii) the applicants obtained an amount of compensation greater than determined by the Valuer-General, argued for by Sydney Water in the hearing, and offered by it in two offers of compromise, (ii) Mr Phippen changed his methodology but did so by reference to sales unknown at the time he prepared his principal report and in circumstances where his principal report also contained an assessment of retail sales that informed his evidence as a whole, (iii) in any event, the applicants needed valuation evidence and Mr Phippen is a qualified registered valuer who gave evidence relevant to the issues in dispute, (iv) the evidence of the valuer called by Sydney Water, Mr Dempsey, was not ultimately accepted as the Court determined a value for 3(a) land some 20% greater than he allowed, (v) the evidence of the planner called by Sydney Water, Mr Rowan, was long and complicated, and also not accepted by the Court, (vi) Mr Bewsher’s flooding evidence was of considerable assistance in resolving the dispute and was not simply rejected, (vii) the applicants did not abandon their additional disturbance claim, but acknowledged that it could only be sustained if the land was valued on the basis of the non urban zoning, (viii) the applicants succeeded on their claim for solatium, (ix) the facts in the Serbian Cultural Club case were very different, and (x) the applicants only needed to come to the Court at all because Sydney Water exercised its power to compulsorily acquire the land on which their home was located.

4 In short, I accept the applicants’ submissions on costs. The basic fact is that the applicants obtained materially more compensation than that determined by the Valuer-General and argued for by Sydney Water in the hearing (and more also than the amounts offered by Sydney Water in its offers of compromise). Although the original claims for $9,000,000 and $10,000,000 were not pressed, but for Mr Phippen’s principal statement, they had little impact on the length or complexity of the proceedings. As the applicants submitted, the claims for disturbance were not abandoned; they simply depended on other factual findings. Other than solatium, disturbance was agreed at mediation before the hearing commenced. The applicants did not fail on all major issues. To the contrary: - (i) I did not accept the principal opinions of either planner, but found the opinions of both helpful in identifying the relevant issues and factual circumstances, (ii) Mr Bewsher and Dr Joliffe found considerable common ground about flooding issues and the evidence of both was relevant and helpful, and (iii) I preferred Mr Dempsey’s methods and reasoning processes but considered his adopted rate for 3(a) land at the low end of the range.

5 In these circumstances, a realistic assessment of the litigation does not lead me to conclude that the applicants failed. The only circumstance that might have founded a real concern about the terms of the appropriate costs order was the change in Mr Phippen’s methodology, as a consequence of which his principal report was largely abandoned. In the circumstances of this case, however, I do not consider any order is warranted other than an order that costs follow the event in the applicants’ favour. In particular, I accept that the abandonment of the summation approach was largely a product of the sale of the residue that emerged during the hearing. Further, the principal report analysed retail sales and that analysis founded the balance of Mr Phippen’s evidence about retail sales and his acceptance of Mr Dempsey’s analysis of the market.

6 Accordingly, I:

(1) Determine that the applicants are entitled to compensation for the acquisition of part of lot 9 in deposited plan 258947 at Memorial Avenue, Kellyville (being the land in lot 1 in deposited plan 1087781) in the amount of $3,367,011.

(2) Subject to the separate costs order made on 20 November 2007, order the respondent to pay the applicants’ costs of the proceedings (including the respondent’s motion filed on 22 August 2008 and the costs hearing on 27 August 2008) as agreed or assessed.

(3) Order that exhibit V be returned.
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