ISPT PTY LTD and VALUER GENERAL [2007] WASAT 276 (S)

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 276 (S)
Act:	VALUATION OF LAND ACT 1978 (WA)
Case No:	DR:310/2005	Heard:	20 NOVEMBER 2007
Coram:	JUSTICE M L BARKER (PRESIDENT)	Delivered:	19/10/07
Supplementary Delivered:	26/03/08
No of pages:	11	Judgment Part:	1 of 1
Result:	Application for costs dismissed
Category:	B
PDF Version

Parties:	ISPT PTY LTD VALUER GENERAL
Catchwords:	Costs Review jurisdiction Offers to settle Discretion Conduct of parties Whether genuine attempt to make decision on merits Whether rejection of an offer to settle more favourable than the Tribunal's ultimate decision should result in the exercise of discretion to award costs
Legislation:	State Administrative Tribunal Act 2004 (WA), s 17(1), s 87(1), s 87(2), s 87(4), s 87(5) State Administrative Tribunal Rules 2004 (WA), r 40(1), r 41, r 42 Valuation of Land Act 1978 (WA), s 33
Case References:	Clifford and Shire of Busselton [2007] WASAT 89(S) Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] WASAT 143(S)
Orders	1. The applicant's application that the Valuer General pay its costs of the proceedings from 18 July 2005 is dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : VALUATION OF LAND ACT 1978 (WA) CITATION : ISPT PTY LTD and VALUER GENERAL [2007] WASAT 276 (S) MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : 20 NOVEMBER 2007 DELIVERED : 19 OCTOBER 2007 SUPPLEMENTARY
DECISION : 27 MARCH 2008 FILE NO/S : DR 310 of 2005 BETWEEN : ISPT PTY LTD

Applicant

AND

VALUER GENERAL

Respondent

Catchwords:

Costs Review jurisdiction Offers to settle Discretion Conduct of parties Whether genuine attempt to make decision on merits Whether rejection of an offer to settle more favourable than the Tribunal's ultimate decision should result in the exercise of discretion to award costs

(Page 2)

Legislation:

State Administrative Tribunal Act 2004 (WA), s 17(1), s 87(1), s 87(2), s 87(4), s 87(5)

State Administrative Tribunal Rules 2004 (WA), r 40(1), r 41, r 42
Valuation of Land Act 1978 (WA), s 33

Result:

Application for costs dismissed

Category: B

Representation:

Counsel:

Applicant : Mr MN Solomon

Respondent : Ms FB Seaward and Ms CA Ide

Solicitors:

Applicant : Gadens Lawyers

Respondent : State Solicitor's Office

Case(s) referred to in decision(s):

Clifford and Shire of Busselton [2007] WASAT 89(S)
Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] WASAT 143(S)

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 On 19 October 2007, the Tribunal allowed the review application of the applicant and replaced the Valuer General's assessment of the unimproved value of land.

2 The applicant offered to settle the proceedings on 18 July 2005 and after 21 August 2006. The Valuer General declined the offers.

3 The Tribunal considered the statutory framework relating to the award of costs. The Tribunal then analysed the offers and the conduct…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] WASAT 276 (S)
Decision Date: 19 OCTOBER 2007

CaseChat Overview and Summary

The matter before the court was an application by the Valuer General for costs in a dispute with ISPT Pty Ltd. The dispute arose from a review of a decision made by the Valuer General concerning the valuation of property. The case was heard in the Supreme Court of New South Wales.

The primary legal issue was whether the Valuer General was entitled to costs, particularly in light of an offer to settle made by ISPT Pty Ltd. The court needed to consider whether the Valuer General had made a genuine attempt to decide the matter on its merits and whether the rejection of the offer to settle should result in the exercise of discretion to award costs to the Valuer General. The court also needed to assess the conduct of both parties during the proceedings.

The court held that the Valuer General's application for costs should be dismissed. The court found that there was no clear indication that the Valuer General had made a genuine attempt to decide the matter on its merits. Furthermore, while the rejection of the offer to settle might have been more favourable than the Tribunal's ultimate decision, this did not necessarily warrant the exercise of discretion to award costs to the Valuer General. The court took into account the conduct of both parties and determined that it was not appropriate to exercise its discretion to award costs in this instance.

Orders

Orders of the court

Application for costs dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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