Evagelakos v Roads and Traffic Authority of New South Wales

[2006] NSWLEC 514

Land and Environment Court

of New South Wales

CITATION:

Evagelakos v Roads and Traffic Authority of New South Wales [2006] NSWLEC 514

PARTIES:

APPLICANTS:
Spiros Evagelakos and
Helen Evagelakos

RESPONDENT:
Roads and Traffic Authority of New South Wales

FILE NUMBER(S):

30112 of 2005

CORAM:

Biscoe J

KEY ISSUES:

Compulsory Acquisition of Land :- acceptance of statutory offer under Land Acquisition (Just Terms Compensation) Act 1991 after objection lodged with the Court and during the hearing – applicants to pay the respondent’s costs.

LEGISLATION CITED:

Land Acquisition (Just Terms Compensation) Act 1991

CASES CITED:

Niezabitowski v Roads and Traffic Authority of New South Wales [2006] NSWLEC 462

DATES OF HEARING:

31/07/2006, 01-03/08/2006

EX TEMPORE JUDGMENT DATE:

08/03/2006

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr P McEwen SC
SOLICITORS
Colin Biggers & Paisley

RESPONDENT:
Mr P Tomasetti, barrister
SOLICITORS
Corrs Chambers Westgarth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

3 August 2006

30112 of 2005

SPIROS EVAGELAKOS AND ANOR v ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR: This is the fourth day of the hearing of this compulsory acquisition matter. I was informed this morning that the applicants have accepted the statutory offer under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW). In my opinion, the acceptance of the statutory offer is effective: see my recent judgment in Niezabitowski v Roads and Traffic Authority of New South Wales [2006] NSWLEC 462.

2 The respondent was also the respondent in Niezabitowski and it formally submits that the decision in Niezabitowski was in error. The respondent has handed me some written submissions. However, I have been informed by counsel for the respondent that they do not significantly differ from the submissions that were put to me in Niezabitowski and that it is unnecessary for me to read them if I adhere - as I do - to what I said in Niezabitowski as to the effectiveness of an acceptance of a statutory offer at this stage of proceedings.

3 There remain for consideration only two matters. The first is the appropriate way of disposing of the proceedings. The second is the matter of costs.

4 The parties have had an opportunity this morning to consider what is the appropriate order for disposing of the proceedings and they are agreed that it is appropriate that the proceedings be dismissed. That is the order that I proposed in Niezabitowski.

5 That leaves for consideration the second issue of costs. In Niezabitowski, I expressed the view that where an applicant accepts a statutory offer after lodging an objection with the Court, and thereby abandons proceedings which it has commenced, there should usually be a costs order in favour of the respondent. In that case there were also some special circumstances which I considered justified making an indemnity costs order in favour of the respondent after a certain date.

6 In the present case it is not suggested that there are any circumstances which would warrant the making of an indemnity costs order in respect of any period.

7 The respondent seeks an order that the applicants pay its costs of the proceedings. The applicants accept that they should pay the costs of the proceedings up to 25 July 2006, but propose that they should only pay a proportion of those costs, which they suggest should be in the order of 75 to 80 percent, after that date. This is because it was on that date that the respondent formally communicated that it proposed to amend its points of defence to contend for compensation which was roughly in the order of half the statutory offer. The respondent’s points of defence had contended for a figure which was in the order of the statutory offer.

8 On the other hand, the lower figure for which the respondent contended has been on the table since about February of this year as a result of a report, which was served, by the respondent’s valuer. Indeed, the quantum of valuation for which both parties contended changed very substantially, and the methodology of valuation for which the applicants’ valuer contended also changed very substantially. There has, therefore, been evolution of a substantial kind on both sides in the approaches to the quantum of valuation and, on the applicants’ side, to the methodology. It is said, and I accept, that it is not atypical for valuation positions to change substantially over time in cases such as this as a result of changing perceptions as to the underlying facts and other matters.

9 There is also the further consideration that the matter has proceeded now for four days of hearing in which the applicants continued to contend for a very much greater figure than the statutory offer. In all the circumstances, I am not persuaded that I should depart from the ordinary rule that costs should follow the event. The event is that the applicants have decided, upon consideration, to abandon the proceedings by accepting the statutory offer.

10 Costs are not awarded to penalise the party who has to pay them. It was open to the applicants, in accordance with my judgment in Niezabitowski, to accept the statutory offer. No criticism is directed to the applicants for taking the course which was open to them. Nevertheless it has resulted in an abandonment of the proceedings and the costs order that will be made against them will not be for the purpose of penalising them for doing that which was open to them to do, but to compensate the party who has succeeded in the proceedings, that is, the respondent.

11 I make the following orders:

1. The proceedings are dismissed.
2. The applicants are to pay the respondent’s costs of the proceedings.
3. The exhibits may be returned.