Future Space Pty Limited v Ku-ring-gai Council
[2009] NSWLEC 15
•16 February 2009
Land and Environment Court
of New South Wales
CITATION: J & M Mir & Others v Valuer General [2009] NSWLEC 15 PARTIES: FIRST APPLICANT
RESPONDENT
John and Marie Mir
SECOND APPLICANT
Mir Bros (Hollywood Creations) Pty Ltd
THIRD APPLICANT
Mirco Finance Pty Ltd
FOURTH APPLICANT
Mir Bros Trading Co Pty Ltd
FIFTH APPLICANT
Mir Bros High Rise Apartments Pty Ltd
SIXTH APPLICANT
Mir Bros Industries Pty Ltd
Valuer GeneralFILE NUMBER(S): 30129 of 2007 CORAM: Sheahan J KEY ISSUES: PRACTICE AND PROCEDURE :- review of decision of Registrar; leave to adduce additional evidence; vacation of hearing dates CASES CITED: Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Tomko v Palasty (No.2) [2007] NSWCA 369DATES OF HEARING: 12 February 2009
DATE OF JUDGMENT:
16 February 2009LEGAL REPRESENTATIVES: APPLICANTS
Mr P Tomasetti, SC
SOLICITORS
Storey & GoughRESPONDENT
Mr J Maston
SOLICITORS
Crown Solicitors Office
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESSheahan J
16 February 2009
JUDGMENT30129 of 2007 J & M Mir & Others v Valuer General
1 His Honour: The Applicants in this Class 3 valuation appeal seek leave to adduce further evidence.
2 If leave is granted, the hearing fixed for 23-26 February will need to be vacated, and a new timetable set. Those dates were set on 10 October 2008 when the then Registrar appears to have expressed concern at how long the matter had been in the court’s list. The initiating application was filed on 16 February 2007, and there was unsuccessful s 34 conferencing during June 2008.
3 The Acting Registrar refused the relevant application for leave on 6 February 2009, and the Applicants have sought a review of her decision, by Notice of Motion filed on 9 February 2009. The Respondent is opposed to the grant of leave.
4 The Applicant relies on the principles enunciated by the High Court in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146. Both parties rely on the Court of Appeal decision in Tomko v Palasty (No.2) [2007] NSWCA 369 (“Tomko”). I heard the Notice of Motion late on Thursday afternoon 12 February, and reserved my decision until Monday 16 February at 9.30am.
5 The Notice of Motion seeks a review “pursuant to Rule 51.59 of the Uniform Civil Procedure Rules 2005”, but the correct rule in this case is 49.19, and I have considered the application as if the correct rule was cited in the Notice of Motion. It is not an appeal. Rule 49.19 says:
- “ If in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise as the court thinks fit ”.
6 The Applicants ask that leave be granted for them to “file, serve and rely on a Town Planning Report prepared by Paul A Grech of Don Fox Planning dated January 2009”. The Applicants’ solicitor, Mr Christopher Gough, has sworn an affidavit dated 11 February in support of the Notice of Motion. I allowed the Applicants to rely on this later affidavit as it provided additional information regarding how and on what timeline the Applicants’ case had been conducted following the setting of the hearing dates, notably the involvement of senior counsel and the nature of his advice on evidence.
7 The Grech report is dated 16 January 2009 and is attached to Mr Gough’s earlier affidavit dated 23 January (as attachment “A”), which affidavit was filed in support of the original Notice of Motion for leave heard by the Acting Registrar. The report was provided to the Respondent on 19 January 2009.
8 Mr Gough filed his appearance in the matter on 15 August 2008. He states that he became involved in the matter only on or about 4 August 2008, after the engineers involved on both sides had prepared their joint report (dated 3 March 2008). Shortly afterwards, the respective valuers’ reports were received. The valuers relied on an indicative plan of subdivision (203 lots) prepared by the Respondent’s engineer Mr Hams.
9 The joint engineering report reflects four areas of disagreement, three of which involve “riparian corridor” and a bridge proposed to cross it, while the fourth disagreement concerns an acoustic barrier to address noise from the adjacent freeway.
10 The joint valuation report was due on 9 February, but was not before the court when the Registrar and I respectively heard the motions.
11 Mr Hams’ primary expertise is engineering, but his CV indicates he has also undertaken “short courses” in Development Control and “Soil and Water Management for Developments”. It is not suggested that he is an expert town planner, and it is not suggested that he is devoid of relevant expertise or experience in subdivisions. His employer John M Daly & Associates Pty Ltd also does not appear to possess formal town planning expertise. (Both the CV and a company profile appear in Mr Hams’ incomplete and unfiled primary report or statement of evidence, as attached to Mr Gough’s later affidavit, as Annexure “B”).
12 Mr Grech is an expert town planner of 25 years standing, with special knowledge of the Campbelltown area. His engagement by the Applicants commenced during November 2008 and involved substantial work during December 2008. (His invoices are attached to the same affidavit, as Annexure “C”). Mr Grech has identified constraints on the land not evident from a reading of the engineering and valuation reports.
13 The proceedings concern valuations, with base dates 1 July 2000 and 1 July 2003, of lands owned by the related applicants in Badgally Road Blairmount (near Campbelltown). The Applicants contend that the constraints upon which Mr Grech has reported are relevant to the appropriate valuation of the various properties involved.
14 There are four relevant and adjacent parcels of land owned by the Mir Group (of individuals and their companies), having areas of 2.868, 7.372, 7.378, and 41.538ha respectively. The local planning regime relevantly changed between the two base dates with which the appeal is concerned, mainly due to the commencement of the Campbelltown (Urban Area) Local Environmental Plan 2002 and the application of various Development Control Plans.
15 Mr Grech opines that even his expert opinion needs to be supplemented by “further detailed assessment by specialist consultants”, whose studies could impact on the potential of the land, within its highest and best use (residential subdivision and a small neighbourhood shopping centre), and so on price and value – steepness, flood risk, stormwater, etc, as well as riparian corridors.
16 Mr Grech considered Mr Hams’ subdivision layout. While not very critical of it, he considers that the further work he outlined is necessary before the full lot yield and likely development costs can be established, and that Mr Hams’ indicative lot yield is “unlikely to be achieved”. He points in detail to several issues affecting each parcel.
17 The Respondent’s position is that:
(i) the application for leave is simply too late;
(ii) some of the many directions given to the Applicant have not been complied with, so they should not be given this indulgence;
(iii) increased costs will be incurred (as the four experts currently involved will need to consider, report on, and confer on the town planning evidence), eroding the court’s performance of finding “ just, quick and cheap ” resolutions of real issues; and
(iv) the four currently engaged experts adequately address the issues the court needs to consider, including town planning.
18 The Acting Registrar correctly summarised the history of the proceedings and the issue she had to determine (see p3 LL22-29 of her written judgment). She correctly noted that Mr Hams had not set out the possible constraints facing implementation of his suggested layout, that the engineers had assumed that that layout was viable, and that the Respondent’s valuer did not canvass the viability of Mr Hams’ layout, whereas the Applicants’ valuer does question it to some extent (p3 L31- p4 L22). She concluded that town planning issues are legitimate issues for these proceedings, and she acknowledged how the Grech report might assist the court (p4 LL30-34). She then noted that it was not conclusive, and not really inconsistent with the other expert evidence (p5 LL1-11). (The Applicants submit that this passage of the judgment oversimplifies what Mr Grech said at pp26-31 of his report and amounts to error).
19 The Acting Registrar then proceeded to weigh the report’s utility against the delay that will flow from agreeing to the Applicants’ request. She acknowledged that it might be seen as “ideal” to have town planning evidence, but determined that the Respondent was correct in saying that the evidence of the four engineering and valuation experts was sufficient for resolution of the real issues in the appeal.
20 The JL Holdings principles acknowledge that only in extreme circumstances (namely significant prejudice to the other side) should the Court shut a party out of litigating an issue. The difficulty here is that there is evidence on the issue (town planning) already before the court, but it is neither the “best” nor expert evidence.
21 Mr Maston of counsel for the Respondent, did not submit any particular element of prejudice, and Mr Tomasetti of Senior Counsel for the Applicants accepted that the Applicants would have to meet the costs of the motions, and the “costs thrown away” in the event that the hearing is vacated and the Respondent is put to the expense of dealing with Mr Grech’s evidence.
22 Mr Gough came into the matter only in August 2008,18 months after it was commenced and after the failure of the s 34 conference to bring the parties to agreement. After the valuers’ reports were filed (on 13 August and 2 September) and the hearing dates were set, Mr Gough took his clients to confer with Mr Tomasetti on 20 October, and senior counsel recommended they obtain a town planning report. Mr Grech was then retained.
23 Prior to August 2008 Mr John Mir was conducting the proceedings himself. By consent five family companies were added as Applicants on 21 September 2007. Mr Mir chose to rely on his expert engineer, his expert valuer and the expertise within his family and its group of companies. He lodged an amended application on 7 July 2008, following the s 34 proceedings. For some reason the five family companies filed “submitting appearances” on 8 July 2008.
24 Tomko makes clear that on an application under Rule 49.19 the court can intervene to review the Acting Registrar’s “direction, order or decision” as it “thinks fit”, in the interests of justice. Consistent with Mr Maston’s submissions, I have refrained from dealing with this matter as an appeal or as a hearing de novo. It is not necessary for me to find an error of law on the part of the Acting Registrar, but there is some substance in Mr Tomasetti’s submission that the comments on Mr Grech’s conclusions (at p5 of her judgment) understate the degree of his disagreement with Mr Hams and could itself amount to a failure to take into account a relevant consideration.
25 However, there appears to be another relevant matter not considered by the Acting Registrar in this case, namely that, had Mr Mir and his companies taken appropriate legal (as well as valuation and engineering) advice at an earlier stage, town planning advice would almost certainly have been sought in a more timely fashion.
26 It is not compulsory for valuation appellants to have legal representation, but the price to be paid for the failure on the Applicants’ part, in the absence of retaining competent legal representation, to obtain town planning advice sooner is the liability for the costs involved on both sides in these interlocutory proceedings. The Applicants are prepared to pay that price. It would not be “in the interests of justice” for the court to insist on the Applicants going to hearing without evidence their advisors have now recommended be put before the court.
27 In Tomko the Registrar’s decision involved refusing an extension of time for a cross-appeal to be filed in the Court of Appeal on appeal from the District Court. The principal appeal had already been determined, without knowledge of the aggrieved party’s intention and the delay on the Applicant’s part in that case was not satisfactorily explained.
28 If any of the Respondent’s circumstances in this present case can be seen to amount to prejudice, it can be and will be adequately addressed by the order for costs which Mr Maston asked for, and to which Mr Tomasetti agreed.
29 The court’s attention to the Mir group’s interests and those of the Respondent must be “just” as well as “cheap” and “quick”. Any failure of the Applicants in respect of timely attention to directions given while they were not legally represented should not preclude the exercise of judicial discretion in their favour on this important aspect of their appeal.
30 I have decided to exercise my discretion to reverse the Acting Registrar’s decision in this instance, in the interests of justice, and I am satisfied that such a decision is not in any conflict with the Court of Appeal’s decision in Tomko.
31 The Applicants’ Notice of Motion dated 9 February is upheld and the Orders of the Court will be as follows:
1. The decision of the Registrar of 6 February 2009 is discharged.
2. Leave is granted for the Applicant to file, serve and rely on a Town Planning Report prepared by Paul A Grech of Don Fox Planning dated January 2009.
3. The hearing dates of 23, 24, 25 and 26 February 2009 are vacated.
4. The Applicants are ordered to pay the Respondent’s costs on the motion before the Acting Registrar and the motion before the Duty Judge, and all costs thrown away in consequence or Orders 1, 2 and 3, including any costs of expert witnesses to review and/or supplement evidence already filed and served.
5. The matter is returned to the Registrar for the making of further directions, the setting of new hearing dates, and referral to the List Judge as required.
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