Hoy v Coffs Harbour City Council (No 2)

[2015] NSWLEC 182

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hoy v Coffs Harbour City Council (No 2) [2015] NSWLEC 182
Hearing dates:	23 November 2015
Date of orders:	26 November 2015
Decision date:	26 November 2015
Jurisdiction:	Class 3
Before:	Pain J
Decision:	Applicant’s Notice of Motion dated 17 November 2015 is dismissed
Catchwords:	PROCEDURE – notice of motion seeking stay of costs determinations in Class 3 proceedings and appeal under s 56A of the Land and Environment Court Act 1979 pending resolution of leave to appeal in Court of Appeal dismissed
Legislation Cited:	Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 59 Land and Environment Court Act 1979 (NSW), ss 56a, 57 Civil Procedure Act 2005 (NSW), ss 56-58, 66
Cases Cited:	Brock v Roads and Maritime Services (formerly Roads and Traffic Authority of NSW) (No 3) [2012] NSWCA 404; (2012) 191 LGERA 267 Hoy v Coffs Harbour City Council [2014] NSWLEC 1217 Hoy v Coffs Harbour City Council [2015] NSWLEC 128
Category:	Procedural and other rulings
Parties:	Iris May Hoy (Applicant) Coffs Harbour City Council (Respondent)
Representation:	Counsel: Mr N Eastman (Applicant) Mr M Seymour (Respondent)   Solicitors: MBT Lawyers (Applicant) HWL Ebsworth (Respondent)
File Number(s):	30426 of 2013; 30941 of 2014

Judgment

1. Two notices of motion concerning costs in this appeal under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (JT Act) following the acquisition of land have been filed by the Applicant Mrs Hoy and set down for hearing on 26 November 2015. One was filed on 28 August 2015 in relation to the completed substantive Class 3 proceedings in Hoy v Coffs Harbour City Council [2014] NSWLEC 1217 (30426 of 2013) and seeks an order that the Applicant’s costs of those proceedings be paid by the Respondent Council, the acquiring authority. The second Notice of Motion filed 27 August 2015 seeks the Applicant’s costs of the cross-appeal in relation to the appeal under s 56A of the Land and Environment Court Act 1979 (NSW) (LEC Act) heard by me and dismissed in Hoy v Coffs Harbour City Council [2015] NSWLEC 128 (30941 of 2014).

2. The Applicant has applied by way of a Notice of Motion dated 17 November 2015 to stay the two motions for costs and vacate the hearing listed on 26 November 2015. I am presently dealing with that Notice of Motion. I indicated at the hearing on 23 November 2015 that I would dismiss the Applicant’s Notice of Motion and provide my reasons at the hearing on 26 November 2015.

3. An affidavit in support of the Notice of Motion dated 17 November 2015 was sworn by Mr Langler solicitor. He identifies that a summons has now been filed seeking leave to appeal under s 57(4) of the LEC Act in relation to the s 56A appeal and the timeframe for doing so is explained. Nothing ultimately hangs on this material.

4. The Council read the affidavit of Ms Hewitt solicitor dated 19 November 2015, which outlines steps taken in relation to the two costs motions filed by the Applicant’s solicitor and lodgement of a Notice of Intention to Appeal and later the Summons commencing an appeal in relation to the s 56A judgment.

5. Under s 66 of the Civil Procedure Act 2005 (NSW) (CP Act) the Court has power to adjourn proceedings at any stage. Sections 56, 57 and 58 of the CP Act apply. Section 56 identifies the overriding purpose of the Act is the just, quick and cheap resolution of the real issues in the proceedings. Case management objectives in s 57 must have regard to the just determination of proceedings and the Court must follow the dictates of justice pursuant to s 58.

6. The Applicant submitted that the principles in ss 56, 57 and 58 would be best served by staying its two costs motions pending the outcome of the appeal in the Court of Appeal. If successful on either of the two grounds of appeal concerning the adjustment of comparable sales and the value of the residue lot the matter is likely to be remitted to the Court for further determination with an increase in the amount of compensation owed to the Applicant likely. This is likely to affect any determination of costs heard this week because the amount may then well exceed the amount determined by the Valuer-General. If the third ground which relates to the construction of s 59(a) of the JT Act is successful there would also be an important change in the costs outcome in that the amount of compensation awarded would exceed at least one offer of compromise made by the Council. Success on appeal would be likely to result in a variation of any costs order made as a result of the costs hearing on 26 November 2015. The Applicant’s approach of delaying costs could result in there being no need for any costs argument. If there is a costs hearing on 26 November 2015, and the Applicant’s appeal succeeds in whole or part then there may have to be a further costs hearing.

7. The motion is opposed by the Council on the basis that it is preferable that matters are resolved finally before any appeal is determined, the usual presumption is that the findings in the s 56A appeal are correct and there is a false economy in the Applicant’s argument because if the appeal is successful and the matter remitted to the Land and Environment Court it will be necessary to reconsider the matter in any event including on costs. There will be no avoidance of two costs hearings.

Finding

8. This application is unusual in the sense that generally costs are finally determined at the end of proceedings in the Land and Environment Court so that the matter is finalised before an appeal in the Court of Appeal is determined. The Applicant submitted these proceedings are different because the first instance decision was by two commissioners followed by a s 56A appeal to a judge, which results in two separate proceedings. The circumstances are unlike Brock v Roads and Maritime Services (formerly Roads and Traffic Authority of NSW) (No 3) [2012] NSWCA 404; (2012) 191 LGERA 267 for example, where the first instance decision including in relation to costs was by a judge. Secondly, leave to appeal under s 57(4) of the LEC Act is necessary so that the usual requirement that the matter be finalised before an appeal can be made does not arise.

9. I do not consider these procedural differences from other cases requiring the finalisation of proceedings before an appeal suggest that the usual and preferable approach of finally resolving all matters in issue in this Court should not be applied. The dictates in ss 56, 57 and 58 of the CP Act support such an approach in terms of the efficient disposal of proceedings. If the appeal is unsuccessful and costs have been determined there will be no need for any further hearing in the Court. It is unknown whether leave to appeal will be granted and, if granted, when an appeal will take place but it will potentially take most of next year if leave is granted. It is undesirable that any costs argument on the original matters take place so far after the determination to which the costs arguments relate. I otherwise agree with and adopt the submissions of the Council set out above at par 7.

Order

10. The Applicant’s Notice of Motion dated 17 November 2015 is dismissed.

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Decision last updated: 27 November 2015