Graham Trilby Pty Ltd v Valuer-General (No 2)

[2008] NSWLEC 141

Land and Environment Court

of New South Wales

CITATION:

Graham Trilby Pty Ltd v Valuer-General (No 2) [2008] NSWLEC 141

PARTIES:

APPLICANT
Graham Trilby Pty Ltd

RESPONDENT
Valuer-General

FILE NUMBER(S):

31195 of 2006; 31199 of 2006; 31200 of 2006

CORAM:

Jagot J

KEY ISSUES:

Costs :- whether appeal under s 37(1) of Valuation of Land Act where Court determined that there was no valid objection and thus no appeal right - whether presumption of no costs order displaced - each party to pay its own costs

LEGISLATION CITED:

Civil Procedure Act 2005
Land and Environment Court Act 1979
Valuation of Land Act 1916

CASES CITED:

Graham Trilby Pty Ltd v Valuer-General (2007) 156 LGERA 1
Port Stephens Council v Sansom (2007) 156 LGERA 125
Terrence P Williams v Valuer General’s Department, Land and Environment Court of New South Wales, Appeal No. T00095/1992, 3 March 1992

DATES OF HEARING:

27 March 2008

EX TEMPORE JUDGMENT DATE:

27 March 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr Mark Seymour
SOLICITORS
Hunt & Hunt

RESPONDENT
Ms A Pearman
SOLICITORS
Crown Solicitor's Office

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

27 March 2008

31195 of 2006
31199 of 2006
31200 of 2006

GRAHAM TRILBY PTY LTD
Applicant

VALUER-GENERAL
Respondent

JUDGMENT

Jagot J:

1 In proceedings 31195, 31199 and 31200 of 2006, the respondent seeks an order that the applicant pay its costs.

2 Both parties have helpfully provided short written submissions setting out their competing arguments. The parties have agreed at the outset that there is no particular difference between the statutory regime that applied under s 69 of the Land and Environment Court Act 1979 and Pt 16 r 4 of the Land and Environment Court Rules 1996, both now repealed, compared to the regime now in place under s 98 of the Civil Procedure Act 2005 and r 3.7 of the Land and Environment Court Rules 2007.

3 However, the respondent submits that whether it be Pt 16 r 4 or r 3.7, the rules do not apply because these proceedings should not be characterised as relevantly “appeals under s 37(1) of the Valuation of Land Act 1916” within the meaning of either rule. In order to understand that submission, it is necessary briefly to record some of the circumstances relating to the appeals.

4 In summary, the applicant lodged appeals under s 37(1) of the Valuation of Land Act accompanied by a notice of motion relating to both these proceedings and other proceedings. Insofar as relevant to these proceedings, paragraph 1 of the notice of motion sought leave to proceed under s 38(2) of the Valuation of Land Act, that is for an extension of time within which to appeal. However, in the event, the respondent raised an issue about the competence of the appeals and accordingly the capacity of the Court to grant any extension of time under s 38(2).

5 That issue of competency or jurisdiction of the Court was dealt with in Graham Trilby Pty Ltd v Valuer-General (2007) 156 LGERA 1 in which Talbot J ultimately determined that the appeals were incompetent, with the consequence that the applications must be dismissed. The appeals were incompetent because there was no valid objection founding the appeals within the meaning of the Valuation of Land Act.

6 This has led the respondent to submit as follows:

(1) As noted, the rule, whether it be Pt 16 r 4 or r 3.7 does not apply because the proceedings were not appeals under s 37(1).

(2) The appeals were incompetent.

(3) There was no novel point relating to the appeals because Bignold J determined the same issue in favour of the respondent in Terrence P Williams v Valuer General’s Department, unreported, Land and Environment Court of New South Wales, Appeal No. T00095/1992, 3 March 1992.

(4) In circumstances where the appeals were incompetent on the ground of the lack of a valid objection, it was unreasonable of the applicant to commence and maintain the proceedings.

7 For its part the applicant maintains that:

(1) The appeals were appeals under s 37(1) of the Valuation of Land Act, albeit ultimately found to be incompetent.

(2) The decision of Bignold J in Terrence P Williams was not determinative as it related to proceedings under the Act before its amendment to introduce ss 35A and 35B, being the subject of Talbot J’s determination.

(3) The arguments about the object, scope and purpose of the Valuation of Land Act presented to Talbot J were quite different from those considered by Bignold J in Terrence P Williams .

(4) Accordingly the presumption in the rules against any order of costs unless it be fair and reasonable in the circumstances applies. This presumption is not displaced having regard in particular to the observations of Spigelman CJ in Port Stephens Council v Sansom (2007) 156 LGERA 125 so that one of the incidents of the scheme established by the Valuation of Land Act must be resolution of questions such as that raised by the applicant in these proceedings.

8 I am satisfied that these were proceedings to which either Pt 16 r 4 or r 3.7 apply because the applicant instituted appeals under s 37(1) of the Valuation of Land Act accompanied by a notice of motion seeking an extension of time. In the event, those appeals were determined to be incompetent but it was the institution of the appeals which enabled the Court to determine its own lack of jurisdiction to hear and resolve the appeals on the merits. In my view that does not change the essential character of the proceedings as instituted before the Court from appeals under s 37(1) to some other form of proceedings. So much is reflected in [15] of Talbot J’s decision where he describes the appeals as having been brought under s 37(1) of the Valuation of Land Act.

9 It follows in my view that the presumption applies that there shall be no order as to costs in these proceedings unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances. As Spigelman CJ explained in Sansom at [48], the starting point must be the presumptive rule that there will be no order as to costs. The criteria of fair and reasonable operate in the broadest of terms so that there is no restriction other than rationality on the scope of the considerations relevant to the formulation of that judgment. However, those considerations must be in the opinion of the first instance judge of sufficient weight to overcome the presumptive rule.

10 Accordingly, the relevant question here is, are the circumstances to which the respondent has pointed of sufficient weight to overcome the presumptive rule recognising of course, that the rationale for any costs order is compensatory in order to reimburse the successful party, in this case the respondent, and not to punish the unsuccessful part, being the applicant.

11 It is true that, having regard to the current form of the rule, that is r 3.7, these proceedings involved a question of law relating to the jurisdiction of the court which was determinative of the proceedings within the meaning of r 3.7(3)(a). It is also, as the respondent has pointed out, a relevant matter under that rule whether the proceedings had been unreasonably instituted and unreasonably maintained.

12 However I am not satisfied that the circumstances to which the respondent has pointed are sufficient to displace the presumptive rule for these reasons. The Act was relevantly amended after the decision in Terrence P Williams. Accordingly this decision was not determinative of the issues in this case. I also accept the applicant’s submissions that the arguments which were put before the Court in relation to its jurisdiction were different from those considered in Terrence P Williams. Moreover, the argument about the jurisdiction of the Court in my view related to an important incident of the scheme of the legislation, being a matter about which in one sense the Valuer-General would have as much interest in a court determination as the applicant. The fact that the applicant was unsuccessful and the appeals were determined to be incompetent does not mean that the applicant acted unreasonably in commencing the proceedings, maintaining the proceedings and ultimately running the argument (albeit unsuccessfully) before Talbot J.

13 The proceedings on their face were regularly instituted as appeals under s 37(1) where in the particular circumstances of the case it turned out that the applicant did not have a right to maintain the appeal. That is insufficient in my view to displace the presumptive rule. It is not fair and reasonable in the particular circumstances of the case that there be any order for costs. Accordingly each party should pay its own costs of proceedings 31195, 31199 and 31200 of 2006 (including the costs of the costs hearing on 27 March 2008).

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