CLIFFORD and SHIRE OF BUSSELTON
[2007] WASAT 89 (S)
•23 APRIL 2007
CLIFFORD and SHIRE OF BUSSELTON [2007] WASAT 89 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 89 (S) | |
| LAND ADMINISTRATION ACT 1997 (WA) | |||
| Case No: | DR:657/2005 | 12 JUNE 2007 AND DECIDED ON THE DOCUMENTS | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) | 23/04/07 | |
| 8/10/07 | |||
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Costs awarded to respondent | ||
| A | |||
| PDF Version |
| Parties: | DENISE MARION CLIFFORD SHIRE OF BUSSELTON |
Catchwords: | Compensation Taking of private right of way Settlement offers by respondent Costs of proceedings |
Legislation: | Land Administration Act 1997 (WA), s 241(11) State Administrative Tribunal Act 2004 (WA), s 9(b), s 52, s 54, s 56, s 87(1), s 87(2), s 87(5) State Administrative Tribunal Rules 2004 (WA), r 40, r 41, r 42 |
Case References: | Chew and Director General of the Department of Education and Training [2006] WASAT 248 Clifford and Shire of Busselton [2007] WASAT 89 Motor Vehicle Industry Board and Dawson [2006] WASAT 8 Summerville and Department of Education and Training [2006] WASAT 368(S) |
Orders | The applicant is to pay the costs of the Shire of Busselton in these proceedings incurred as and from 17 July 2006, including the costs of the expert planner and the expert valuer called by the Shire at the hearing of the proceedings, fixed in a total sum of $99,899.13 within 180 days or such other time as the parties may agree or the Tribunal otherwise orders. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : LAND ADMINISTRATION ACT 1997 (WA) CITATION : CLIFFORD and SHIRE OF BUSSELTON [2007] WASAT 89 (S) MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : 12 JUNE 2007 AND DECIDED ON THE DOCUMENTS DELIVERED : 23 APRIL 2007 SUPPLEMENTARY
DECISION : 8 OCTOBER 2007 FILE NO/S : DR 657 of 2005 BETWEEN : DENISE MARION CLIFFORD
- Applicant
AND
SHIRE OF BUSSELTON
Respondent
Catchwords:
Compensation Taking of private right of way Settlement offers by respondent Costs of proceedings
Legislation:
Land Administration Act 1997 (WA), s 241(11)
(Page 2)
State Administrative Tribunal Act 2004 (WA), s 9(b), s 52, s 54, s 56, s 87(1), s 87(2), s 87(5)
State Administrative Tribunal Rules 2004 (WA), r 40, r 41, r 42
Result:
Costs awarded to respondent
Category: A
Representation:
Counsel:
Applicant : Ms L Rowley
Respondent : Mr M Flint
Solicitors:
Applicant : Deacons
Respondent : Lavan Legal
Case(s) referred to in decision(s):
Chew and Director General of the Department of Education and Training [2006] WASAT 248
Clifford and Shire of Busselton [2007] WASAT 89
Motor Vehicle Industry Board and Dawson [2006] WASAT 8
Summerville and Department of Education and Training [2006] WASAT 368(S)
(Page 3)
Summary of Tribunal's decision
1 On 23 April 2007, the Tribunal assessed the compensation payable for the taking of a private right of way in the centre of Dunsborough in the sum of $3,250.
2 Between 12 August 2004 and 24 January 2007, each party offered to settle the proceedings. The Shire of Busselton in particular made a number of offers of settlement.
3 The Tribunal considered the statutory context of its discretion to award costs. The Tribunal then analysed each offer in light of the costs incurred by the applicant at the relevant date.
4 The Tribunal found that the Shire's offer of 17 July 2006 was more favourable than the Tribunal's order and ordered that the applicant pay the Shire's costs from 17 July 2006.
Issue
5 In Clifford and Shire of Busselton[2007] WASAT 89, the Tribunal assessed the compensation payable for the taking of a private right of way (ROW) in the centre of Dunsborough, for the purpose of creating an underwidth public road, in the sum of $3,250.
6 The Tribunal also found that there were no relevant entries onto the subject land prior to the taking, for the purposes of s 241(11), Land Administration Act 1997 (WA) (LA Act).
7 Following the giving of that decision, the Shire of Busselton applied for an order that the applicant pay the Shire's costs of the proceedings.
8 The issue currently for determination is whether the applicant is, in the circumstances of this case, obliged to meet the costs of the Shire and, if so, in what sum.
Facts
9 As noted, on the principal issue for determination in the main proceedings, the Tribunal determined that compensation for the taking of the private ROW should be assessed in the sum of $3,250.
(Page 4)
10 The Shire filed a chronology of events pertaining to endeavours by the parties to settle the compensation proceedings without a final hearing, which endeavours it says bear on the question of costs.
11 The initial claim for compensation dated 10 January 2004, was for land value of $692,250, solatium of $69,225, as well as fees and interest.
12 By offer of the Shire dated 12 August 2004, the Shire offered to pay $1000 by way of compensation.
13 By further offer of the Shire dated 8 March 2005, the Shire offered to pay compensation of $2,500.
14 These offers were further increased by offer of the Shire dated 3 October 2005 of $2,750 plus interest. This was a formal offer made under the LA Act.
15 By offer dated 25 November 2005 the applicant then indicated she was prepared to settle the proceedings in the sum of $75,000 plus solatium, interest and costs.
16 The Shire by offer dated 17 July 2006 offered $40,000 inclusive of legal costs.
17 By offer dated 27 July 2006 the Shire increased that offer to $60,000 inclusive of costs.
18 By offer dated 8 January 2007, the Shire further increased its offer to $110,000 which was said to be "inclusive of all heads of compensation, interest, legal costs and disbursements, other fees and expenses or any other loss, damage or expense however arising in relation to the matters the subject of this application".
19 The Shire increased its offer by offer dated 19 January 2007 to $130,000 expressed in the same terms as the offer of 8 January 2007.
20 The applicant by offer dated 24 January 2007 indicated to the Shire she was prepared to settle the proceedings for approximately $231,000. This sum is estimated by reference to the express offer of the applicant to accept the sum of $150,000 plus costs as previously outlined in a letter by the applicant's solicitors to the Shire's solicitors dated 17 January 2007. This offer was made in full and final settlement of the claim.
21 At the hearing the applicant claimed a total of $907,500, being $825,000 compensation plus solatium of $92,500, plus interest since 4 March 1997, an amount calculated in total to be greater than $1,450,000.
(Page 5)
22 In the event, the Tribunal assessed compensation in the sum of $3,250 which with interest from 10 January 2004 was calculated to be a sum less than $4,500 in total.
The Shire's contentions
23 In short, the Shire contends that because the applicant failed to obtain an award of compensation greater than the offers it had made at material times in the course of proceedings the applicant should meet the Shire's costs of the proceedings.
24 Counsel for the Shire acknowledged that the starting point in relation to an application for costs by a party in the Tribunal is s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Section 87(1) in effect provides a "no costs rule" in that unless otherwise specified in the SAT Act, the enabling Act in this case the LA Act or an order of the Tribunal under s 87, parties bear their own costs in a proceeding of the Tribunal.
25 However, counsel for the Shire also drew attention to s 87(2) which permits the Tribunal to make an order for the payment by a party of all or any of the costs of another party.
26 Counsel also drew attention to s 87(5) which provides:
"[t]he rules may deal with the effect of certain offers to settle, and responses, if any, to the offer, on the making of an order for the payment by a party of the costs of another party."
27 Rule 40 and r 41 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) govern settlement offers and acceptance of settlement offers. Rule 42 provides that if a settlement offer made in accordance with the Rules is not accepted within the time the offer is open and in the opinion of the Tribunal the orders made by the Tribunal in the proceeding are not more favourable to the other party than the offer, then the Tribunal is to, in determining the costs that may be awarded, take into account that the party did not accept an offer more favourable than the Tribunal's order. Rule 42(3) provides that in determining whether its orders are or are not more favourable to a party than an offer, the Tribunal
(Page 6)
- "(a) must take into account any costs it would have ordered on the date the offer was made; and
(b) must disregard any costs it ordered in respect of any period after the date the offer was received."
28 The Shire contends that the offer made at relevant times was greater than the compensation ordered by the Tribunal. Counsel for the Shire submitted two alternative possibilities by way of a costs order:
(1) That the Shire have all of its costs from 17 July 2006 when the Shire made the offer of $40,000 inclusive of costs.
(2) That the Shire have all of its costs in respect of the conduct of the four-day hearing of the matter and its experts.
The applicant's contentions
29 Counsel for the applicant produced a bundle of documents showing the applicant's professional costs incurred in prosecuting the claim for compensation up to 29 January 2007, that is, four days prior to the final hearing, which indicated that she had potentially incurred professional fees of $131,046.
30 Counsel for the applicant said none of the offers made met the costs incurred at relevant dates.
31 Counsel for the applicant submitted that the last offer of $130,000 inclusive of costs and expenses of 19 January 2007, was not an effective offer because r 41 was not complied with in that there were only 12 days' notice for acceptance prior to the hearing, not the 14 days specified in r 41(1) and r 41(2).
32 As to the Shire's offer dated 8 January 2007 of $110,000, counsel for the applicant submitted that that offer did not meet all of the costs that had been incurred by the applicant at that point, including professional fees, and it was not reasonable that the applicant should have accepted it.
33 In rejecting the $110,000 offer the solicitors for the applicant by letter dated 17 January 2007 made the following observation:
"Nevertheless costs have escalated alarmingly as a consequence of the complication of the issues. Our client's legal costs now stand somewhere in the region $40,000.00. The costs of Mr Adam currently
(Page 7)
- stand at $21,000.00 and although we have not as yet asked our client's valuer Mr Dix what his costs may be, we imagine they will be similarly substantial. We therefore consider that the costs now stand at approximately $81,000.00 on a conservative basis which appears to completely negate the offer which you have made.
We have therefore had to inform our client that taking into account the deductions mentioned in your letter, this offer would only result in her costs to date being paid and no compensation at all accruing to her.
Our client has instructed us to reject this offer for the reasons set out above …"
Contentions of the Shire in response
34 As to the 14day requirement for an offer mentioned in r 41(2), counsel for the Shire pointed out that under r 41(1) an offer must be open for acceptance until hearing or until the expiry of the specified period after the offer is made, whichever is the shorter period. It is suggested that means an offer can be left open until the hearing even if that is a shorter period than 14 days.
35 Counsel for the Shire submitted that in any event it is open to the Tribunal in the exercise of its discretion under s 87(2) to take into account the making of an offer whether or not it is made in compliance with r 40 and r 41 of the SAT Rules.
36 Counsel for the Shire also responded to the calculation as to the offer made in the applicant's solicitors' letter dated 17 January 2007, suggesting that the analysis provided there is wrong. Counsel submits that if $81,000 had already been incurred in costs then, given that the offer was for $110,000 at that time, $29,000 remained to meet solatium, any interest and the valuer's fees of $19,000, as well as the compensation award made by the Tribunal, because there would be in the region of $10,000 remaining once those professional and other costs were subtracted.
Further materials supplied
37 Subsequent to the making of submissions on costs, with the leave of the Tribunal, the solicitors for the applicant provided further material to the Tribunal that sought to identify the extent of legal costs and other professional costs incurred by the applicant at different periods during the course of getting up the application for compensation for hearing at the Tribunal.
(Page 8)
38 The solicitors for the Shire also lodged further written submissions concerning those materials.
Tribunal's determination
39 It is commonplace now to describe the State Administrative Tribunal as, on the face of it, a costsneutral tribunal. This has been explained in a number of decisions of the Tribunal: see Chew and Director General of the Department of Education and Training [2006] WASAT 248; Summerville and Department of Education and Training [2006] WASAT 368(S). This observation derives from two main sources. First, the Task Force report that informed the setting up of the Tribunal. And secondly, and more importantly, the express terms of the SAT Act in respect of costs.
40 Section 87(1) provides:
"Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal."
- This enshrines the philosophy that the Tribunal is costneutral. Ordinarily parties will bear their own costs and not obtain orders against other parties to meet their costs of proceedings.
41 However, s 87(2) provides
"Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35."
- This means that the Tribunal has a discretion to order a party to pay the costs of another party in an appropriate case.
42 The circumstances in which the Tribunal will exercise its discretion to order that one party pay the costs of another party are being worked out over time. For example, in vocational regulation proceedings, the Tribunal has made it plain that a vocational body that succeeds on an application ordinarily will be entitled to an order for costs, effectively on the basis that costs follow the event, as it is stated in many courts.
(Page 9)
43 However, the Tribunal has also made it clear that just because a vocational body is not successful does not necessarily mean it will be ordered to pay the costs of the affected party. This is because there is a public interest in the vocational body bringing proceedings: See Motor Vehicle Industry Board and Dawson [2006] WASAT 8.
44 Section 87(3) specially empowers the Tribunal to make an order for the payment of an amount to compensate a person in certain circumstances. This is over and above the costs of the proceedings to which s 87(1) and s 87(2) refer.
45 Section 87(4) sets out some factors to be considered by the Tribunal where a party applies for costs in relation to a proceeding in the Tribunal's review jurisdiction. If the order is sought against a party which is the decision-maker, a relevant question is whether the decision-maker genuinely attempted to make a decision on its merits. If the party against whom costs is sought is the applicant, a relevant question is whether that party genuinely attempted to enable and assist the decision-maker to make a decision on its merits.
46 Section 87(5) goes further and provides that the rules of the Tribunal may deal with the effect of certain offers to settle, and responses, if any, to the offer, on the making of an order for the payment by a party of the costs of another party.
47 The SAT Rules in Div 5 and Div 6 deal with settlements. Rule 40 governs settlement offers, r 41 governs acceptance of settlement offers, r 42 deals with orders for costs if settlement offer is rejected.
48 The SAT Act therefore, through s 87(5) and the rules referred to, reveals parliamentary support for the idea that, where possible, parties to proceedings should endeavour to consider settlement. This intent is evident elsewhere in the SAT Act. For example, s 9(b) makes it one of the main objectives of the Tribunal to act as speedily and with as little formality and technicality as is practicable, and minimise the cost to parties. Section 52 encourages the use of compulsory conference as an alternative to a final adversarial hearing. Section 54 encourages mediation as an alternative to final adversarial hearing. Importantly, s 56 expressly deals with settlement and enables the Tribunal to make an order giving effect to a written settlement of the parties. In this statutory context then, the rules providing for the making and acceptance of the settlement offers and for the making of an order for costs in the event that a settlement offer is rejected, or at least setting out factors to be considered in relation to an application for an order for costs in some circumstances, are important.
(Page 10)
49 Rule 42(2) makes it clear that where that rule applies, the Tribunal "is to, in determining the costs that may be awarded, take into account that the party did not accept an offer more favourable than the Tribunal's order".
50 Rule 42(3) provides:
"In determining whether its orders are or are not more favourable to a party than an offer, the Tribunal -
(a) must take into account any costs it would have ordered on the date the offer was made;and
(b) must disregard any costs it ordered in respect of any period after the date the offer was received."
51 These settlement rules are capable of applying to a range of disputes coming to the Tribunal for resolution, but will often be particularly relevant to proceedings in which parties are in dispute about financial matters.
52 Under the LA Act, the Tribunal has the jurisdiction to assess the compensation payable to a person for taking of land, where an offer of compensation has been rejected.
53 The jurisdiction of the Tribunal in relation to the assessment of compensation is in the original jurisdiction of the Tribunal. This does not involve the review of any decision already made, although in some respects it does involve a review of the offer of compensation put forward by the resuming authority. Nonetheless, it is strictly speaking a proceeding in the original jurisdiction of the Tribunal.
54 Ordinarily, where a citizen feels obliged to commence a proceeding in the Tribunal for compensation under the LA Act they are dissatisfied with and have rejected an offer of compensation made by a resuming authority. If they succeed in their claim in the Tribunal, it would seem fair and reasonable that the Tribunal should ordinarily exercise its discretion under s 87(2) and award the applicant the costs of those proceedings. This is because, putting it simply, ordinarily if the applicant succeeds, it will have been demonstrated to the Tribunal that the applicant was not offered fair compensation by the resuming authority and was
(Page 11)
- obliged to commence and maintain the proceedings in order to gain justice. It would seem unreasonable for an applicant to have to fight to gain fair compensation only to have to deduct from the compensation the costs incurred in obtaining the award.
55 Of course what should be recognised as "success" in every case requires some further consideration. If the applicant does not succeed in obtaining a compensation award following a hearing that betters the original compensation offer made by the resuming authority, it can hardly be said that the applicant was successful in the proceedings. Indeed it could be said in such a case that the applicant has maintained an unjustified proceeding and so should have to pay the respondent its costs for the trouble and expense of defending the claim.
56 Either way it really is a question of fairness: on the one hand, in the case of a successful applicant it is fair that they should ordinarily receive their costs when they are put to the trouble and expense of proving that their claim is right, over the reticence of the resuming authority to recognise the rightness of the claim; on the other hand, it is fair that an applicant who does not establish that a resuming authority's offer was not right, should have to pay the resuming authority's costs given the trouble and expense to which they have put the resuming authority.
57 It should also be said that an award of costs in such circumstances will have the beneficial effect of discouraging unjustified proceedings.
58 The settlement rules fit into this regime very neatly. For example, they enable a resuming authority defending a compensation claim to make offers of settlement through the course of the proceedings. They indeed also enable an applicant, despite their initial claim for compensation, to make amended offers to settle proceedings.
59 The ultimate significance of the settlement rules as set out in r 42, is that if a party does not do better than what the other party offered, then they may be exposed to an order for costs. The settlement rules are designed to work with the cost regime to encourage parties to settle proceedings. If they do not and are shown, in that sense, to have acted unreasonably, then they may be exposed to a costs order.
60 However, nothing in the settlement rules themselves says how the costs discretion of the Tribunal is to be exercised. Rather, the settlement rules establish a basis for the Tribunal exercising its discretion to order costs. The SAT Rules do not require the costs discretion to be exercised one way or the other.
(Page 12)
61 Nonetheless, there is an expectation in the context of the SAT Act provisions referred to earlier, and these settlement rules, that where a party did not accept an offer more favourable than the Tribunal's final order, then that party will ordinarily be liable to meet the other party's costs.
62 In the context of a compensation claim under the LA Act, offers to settle made by a resuming authority or an applicant will also ordinarily take into account costs and fees reasonably incurred.
63 In the final result, however, the Tribunal maintains a discretion to award or to not award costs notwithstanding the making of settlement offers and the rejection of settlement offers. This enables the Tribunal to take into account all the circumstances of the particular case.
64 It should be added that the settlement rules ordinarily will govern the making of settlement offers in the Tribunal. Rule 41(2) specifies that the minimum period that can be specified in an offer is 14 days. It should be noted in passing that this does not apply where the offer is made prior to the hearing where there is necessarily a shorter period than 14 days left before the hearing. The provision of the 14day period evinces an intention that a party should have a reasonable opportunity to take advice and consider the offer made. It should not be rushed into making an offer.
65 If an offer is made outside the SAT Rules it will not automatically be irrelevant to the question of the costs discretion under s 87(2) of the SAT Act, but it does mean that it is much more unlikely to enliven the exercise of that discretion.
66 Similarly, if a settlement offer is made a very short time before a hearing is due to commence, the fact that a party is not properly able to take advice and consider the offer may also lead to the view that a rejection of the offer will not have consequences in costs for that party.
67 For those reasons, parties are well advised to ensure that settlement offers made comply with the settlement rules laid down in the SAT Rules so that r 42 applies and governs the exercise of the Tribunal's discretion to award costs or to not award costs under s 87(2) of the SAT Act.
68 In this case, it is plain that the Shire sought to settle the applicant's compensation proceedings by making a formal offer under the SAT Rules. In my view, the offer made on 19 January 2007 complied with r 41. Rule 41(1) enables an offer to be made and remain open for acceptance "until the commencement of the hearing or until the expiry of a specified period". Only where a period is "specified" does the 14day minimum period provided for in r 41(2) apply.
(Page 13)
- Where the offer is open until the date of the hearing, the period in question may be less than 14 days. In this case the offer until hearing was for a period of 12 days. In those circumstances, r 42 applies.
69 The orders made by the Tribunal in the proceeding concerning the assessment of compensation are not more favourable to the applicant than the offer made. As a consequence the Tribunal, in determining the costs that may be awarded, must take into account that the party did not accept an offer more favourable than the Tribunal's order.
70 In determining whether its orders are or are not more favourable to a party than an offer, the Tribunal must take into account any costs it would have ordered on the date the offer was made and must disregard any costs it ordered in respect of any period after the date the offer was received. In this case the Tribunal did not order any costs in respect of any period after the date the offer was received. It must then take into account any costs it would have made on the date the offer was made.
71 In the circumstances, while the applicant appears to have incurred or nominally incurred reasonably substantial legal costs, and other professional consultants' fees, in the course of preparing her claim, under the fee arrangements made with her solicitors, when a number of relevant offers were made it was not reasonably open to the applicant to reject each offer on the basis it would be insufficient to meet her claim and her expenses. In this regard I accept the Shire's submissions concerning the relevant offers as follows.
72 The Shire submits that its various offers satisfy r 42.
73 As to the offer of 17 July 2006, the Shire says it was an allinclusive offer of $40,000. The applicant states that as at 17 July 2006 its untaxed costs were $48,972.81, made up of legal fees of $11,569.50 and expert valuation witness fees of $37,403.31.
74 Counsel for the Shire says the first point to note is that under r 42(3)(a) of the SAT Rules, in determining whether the Tribunal's orders are or are not more favourable to a party than the offer the Tribunal "must take into account any costs it would have ordered on the date the offer was made".
(Page 14)
75 Thus the purpose of this exercise is not the gross figures that determine the costs as at 17 July 2006 but the amounts the Tribunal would have ordered as at that date.
76 Counsel for the Shire submits that the legal costs that would have been ordered by the Tribunal as at 17 July 2006 in favour of the applicant would have been less than that which were nominally charged to the applicant. The sum of $11,569.50 is an untaxed figure and represents simply the total amount of work done by the solicitors for the applicant at their chargeout rate. Additionally, the material provided to the Tribunal under cover of the applicant's solicitors' letter of 13 June 2007, discloses that the applicant was nominally being charged $395 per hour excluding GST when a Supreme Court determination rate for a senior practitioner at that time was $341 per hour including GST, prior to 1 July 2006 and $363 per hour including GST from 1 July 2006.
77 The Shire further submits that the expert valuation witness fees that would have been ordered by the Tribunal as at 17 July 2006 in favour of the applicant would have been well short of the claimed $37,403.31. Again that figure is untaxed and there is no time or rate breakdown provided to the Tribunal. The general comment is made that $37,403.31 is a large figure for that stage of the proceedings. The Shire draws attention to the fact that its expert witness charged $26,555.43 for his total involvement to the conclusion of the hearing.
78 Counsel for the Shire further submits that as at 17 July 2006 the value of the compensation ordered by the Tribunal would have been in the order of $4,120. This is the $3,575 plus 15.25 per cent (6 per cent per annum from 10 January 2004 to 17 July 2006).
79 The Tribunal would not have awarded the applicant costs of as much as $35,880, being the balance of the $40,000 offer after deducting the $4,120 set out.
80 Thus the Tribunal's order is not more favourable than the offer of 17 July 2006.
81 The Shire makes a further submission in relation to the offer it made of 27 July 2006. It says the applicant accepts that the Tribunal's order is not more favourable than that offer of $60,000 based on the untaxed amounts of legal and expert valuation fees at that time.
82 The Shire says that the points it makes in respect of the offer of 17 July 2006 apply equally to this offer. Additionally the Shire says the figure of $15,805 for legal fees at 27 July 2006 appears to be erroneous. The schedule
(Page 15)
- to the applicant's solicitors' letter of 13 June 2007 reveals that sum is the sum of the accounts dated 20 December 2005, 31 January 2006, 28 February 2006, 31 March 2006, 31 May 2006 and 4 August 2006. It is said reference to the account at 4 August 2006 reveals that it includes three entries beyond 27 July 2006 which should not be included in the legal costs nominally charged as at 27 July 2006.
83 The Shire also says that the comparison at page 2 of the applicant's solicitors' letter of 19 June 2007 between the offer of 27 July 2006 and the applicant's untaxed legal and expert valuation witness costs at that time is erroneous. If the Tribunal were to determine that the costs it would have awarded as at 27 July 2006 are $53,523.51 then the Shire's offer exceeds that amount by $6,476.49. As at 27 July 2006 the value of the compensation awarded by the Tribunal would have been in the order of $4,130. Thus the respondent's offer of $60,000 dated 27 July 2006 is approximately $2,340 more than the applicant's untaxed legal and valuation costs as at that date.
84 The Shire says the applicant's error on page 2 of the solicitors' letter of 19 June 2007 is to remove solatium and interest from the balance between the offer and the applicant's untaxed costs as at 27 July 2006, but to include solatium and interest in the Tribunal's award for the purposes of comparison. Thus like is not compared with like. The Shire says the Tribunal's order is not more favourable than the offer of 27 July 2006.
85 The Shire also notes in its submissions about the all-inclusive offer of $110,000 made 8 January 2007.
86 The applicant states that as at 8 January 2007 its untaxed costs were $128,350.93 made up of legal fees of $47,328.10, expert valuation fees of $60,462.83 and expert planning witness fees of $20,560.
87 The Shire repeats its earlier submissions concerning the proper estimation of costs.
88 The Shire submits that the planning expert witness fees that would have been ordered as at 8 January 2007 would have been well short of the claimed $20,560, particularly considering that the Shire's expert charged only a little less than $10,000 to the conclusion of the hearing. Additionally and significantly, the Shire says, the solicitors' invoice to the applicant dated 28 February 2007 records as a disbursement the amount of $2,500 for the planner. The Shire says that the applicant is only able to
(Page 16)
- claim that sum as at 8 January 2007, the result is that the applicant's untaxed fees as of that date are just over $110,000.
89 The Shire says that as at 8 January 2007 the value of the compensation awarded by the Tribunal would have been in the order of $4,220. The Tribunal would not have awarded the applicant costs as much as $105,780, being the balance of $110,000 after deducting the $4,220 as set out above.
90 On this basis the applicant says the Tribunal's order is not more favourable than the offer of 8 January 2007.
91 As to the Shire's offer of 19 January 2007, the Shire then made an all-inclusive offer of $130,000.
92 The applicant states that as at 19 January 2007 its untaxed costs were $130,378.64 made up of legal fees of $49,229.27, expert valuation fees of $60,511.23 and expert planning witness fees of $20,580.
93 The Shire repeats its earlier submissions concerning the appropriate estimation of costs.
94 The Shire also refers to the expert witness fees actually claimed as at 19 January 2007 of $2,500 and says the result is that the applicant's untaxed fees as at that date were only $112,240.50.
95 As at 19 January 2007 the value of the compensation awarded by the Tribunal would have been in the order of $4,230.
96 The Shire submits that as at that date the Tribunal would not have awarded the applicant costs as much as $125,770, being the balance of the $130,000 offer after deducting the compensation sum.
97 The Shire therefore submits that the Tribunal's order is not more favourable than the offer of 19 January 2007.
98 The Shire therefore maintains its primary submission that it should be granted an order that the applicant pay its costs of the entire proceedings.
99 The Shire's alternative submission is that it should be granted an order that the applicant pay its costs from 17 July 2006.
100 The Tribunal finds that as at 17 July 2006, the applicant did not accept an offer made by the Shire which offer was more favourable than the Tribunal's order. In doing so the Tribunal has regard to the notional costs incurred by the applicant with her solicitors and other professional consultants. Nonetheless, the Tribunal accepts the analysis
(Page 17)
- made on behalf of the Shire that even if such costs had been taken into account at that point, the amount offered. Having regard to the respondent's 'Draft Bill of costs from 17 July 2006' dated 26 June 2007, the President allows costs for all items, which includes the disbursements incurred in respect of the expert witnesses Ms Angela Satre and Mr Ross Hughes, making a total of $99,899.13. The costs should be paid within 180 days or such other time as the parties may agree or the Tribunal otherwise orders.
Order
101 For the reasons set out above, the Tribunal makes the following order:
(1) The applicant is to pay the costs of the Shire of Busselton in these proceedings incurred as and from 17 July 2006, including the costs of the expert planner and the expert valuer called by the Shire at the hearing of the proceedings, fixed in a total sum of $99,899.13 within 180 days or such other time as the parties may agree or the Tribunal otherwise orders.
I certify that this and the preceding [101] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE M L BARKER, PRESIDENT
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