Johnston v Roads and Traffic Authority of New South Wales

[2000] NSWLEC 226

Land and Environment Court

of New South Wales

CITATION:

Johnston v Roads and Traffic Authority of New South Wales [2000] NSWLEC 226

PARTIES:

APPLICANT
Johnston

RESPONDENT
Roads and Traffic Authority of New South Wales

FILE NUMBER(S):

30443 of 1998

CORAM:

Cowdroy J

KEY ISSUES:

Costs :- award of compensation for land acquisition exceeding assessment of respondent but less than the compensation claimed - respondent increasing valuation assessment during hearing - applicant awarded disturbance items - applicant deemed successful - apportionment of costs not justified

LEGISLATION CITED:

Valuation of Land Act 1916
Land and Environment Court Act 1979 s 69

CASES CITED:

Cretazzo v Lombardi (1975) 13 SASR 4 ;
Cummings v Lewis (1993) 113 ALR 285;
Dodds Family Invesments Pty Limited v Lane Industries Pty Limited & Ors 26 IPR 261 ;
Haig v The Minister Administering the National Parks and Wildlife Act 1974 (unreported 1996, NSWLEC 58) ;
Hughes v Western Australian Cricket Association (Inc) (1986) 8 ATPR 40-748;
J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers, Western Australian Branch & Anor (No 2) [1992] 46 IR 301 ;
Latoudis v Casey (1990) 170 CLR 534 ;
Pastrello v Roads and Traffic Authority of New South Wales [2000] NSWLEC 209 ;
Queensland Wire Industries Pty Limited v BHP Co Limited (1987) 17 FCR 211;
In re Elgindata Ltd [No 2] [1992] 1 WLR 1207 ;
Rukavina & Robertson v Wagga Wagga City Council (1993) 80 LGERA 8

DATES OF HEARING:

19/10/00

DATE OF JUDGMENT:

10/27/2000

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Webster (Barrister)

SOLICITORS
Stone & Partners

RESPONDENT
Mr J Maston (Barrister)

SOLICITORS
Crown Solicitors

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 30443 of 1998
CORAM: Cowdroy J
DECISION DATE: 27/10/00

Robert James Johnston

Applicant

v

Roads and Traffic Authority of New South Wales

Respondent

JUDGMENT [No 2]

1. By notice of motion dated 31 July 2000 the applicant seeks an order that the respondent pay the costs of these proceedings in which this Court delivered judgment on 16 June 2000.

2. The total compensation claimed by the applicant pursuant to s 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (“the Act”) was $778,500, plus disturbance amounting to $192,934, making a total of $971,434. The respondent calculated the applicant’s entitlement to compensation as $419,675, and $18,750 for disturbance, making a total of $438,425. Accordingly the difference between the parties was $533,009.

3. The Court determined that the applicant was entitled to receive the sum of $464,175 by way of compensation as representing the value of the land pursuant to s 55(a) of the Act and $149,142 for disturbance pursuant to s 55(d) of the Act totalling $613,217.

The applicant’s submissions

4. The applicant contends that it was successful in these proceedings. Although the applicant did not succeed in the full amount of its claim it is submitted that it was necessary to litigate the claim to achieve the judicial award of compensation which exceeded the amount offered by the respondent. It was only on the third day of the six day hearing that Mr Bewes, the expert valuer for the respondent, acknowledged that the quantum of compensation should be increased from $419,675 to $464,175 being the amount which the Court awarded for compensation pursuant to s 55(a) of the Act.

5. In addition the applicant says that it was successful in obtaining compensation for disturbance items being the costs of the removal of the existing house of $129,600 and re-location expenses of $8,250 which required both the hearing of evidence and argument. A claim for road extensions of $2,035 and valuation expenses of $3,657 were also only agreed upon during the hearing.

6. The applicant therefore says that the usual rule should apply which provides that a successful party should be entitled to costs unless there are special circumstances to justify a departure therefrom: see Haig v The Minister Administering the National Parks and Wildlife Act 1974 (Bignold J NSWLEC 6 March 1996, unreported); see also Queensland Wire Industries Pty Limited v Broken Hill Proprietary Co Limited (1987) 17 FCR 211 at 222. The applicant submits that no exceptional circumstances were shown to exist in this case. Other authorities are relied upon by the applicant, for example Pastrello v Roads and Traffic Authority of New South Wales ([2000] NSWLEC 209 at [17] ) in which Talbot J determined that special circumstances were required if an order for costs were to be made the effect of which would deprive an owner of the full benefit of compensation. The applicant also relies upon the broad discretion provided pursuant to s 69(2) of the Land and Environment Court Act 1979 (NSW) as discussed in Rukavina & Robertson v Wagga Wagga City Council (1993) 80 LGERA 8 at 9.

The respondent’s submissions

7. The respondent acknowledges its obligation to pay a proportion of the applicant’s costs of these proceedings. However the respondent submits that the applicant’s claim for compensation in respect of the land acquisition was found by the Court to have been calculated using an unorthodox method. The respondent submits that it was successful in opposing the quantum of such claim.

8. In respect of other items such as the cost for road extensions, no claim for such item had been made until the hearing. When apprised of such costs the respondent says that it promptly agreed to their payment. The disturbance claims relating to the costs of removal of the house and relocation expenses could, the respondent submits, have been determined in a matter of less than one day. Accordingly the respondent submits that a proportion of one-fifth of the applicant’s cost should be paid by the respondent.

The finding

9. The claim for compensation in respect of the subject land was formulated by the applicant on a basis which was unsuccessful. However during the hearing the respondent conceded that adjustments needed to be made to its own assessment of the value of such land. In this respect the applicant’s claim could not be said to have been wholly unsuccessful, for without it, the respondent would not have increased its compensation payment. Further, the mere fact that the Court did not adopt the method of calculation proposed by the applicant does not lead to the conclusion that the claim was baseless. The applicant was entitled to have its claim considered and the conduct of the applicant was not unreasonable.

10. In respect of the major items of disturbance namely costs of removal of the house and relocation costs the applicant was successful. However the applicant was unsuccessful in respect of a minor claim for loss of rental amounting to approximately $8,000.

11. Authority exists for the proposition that apportionment for costs against a successful plaintiff should only be made in exceptional circumstances, lest the ultimate ends of justice be prevented if the party is dissuaded by the risk of costs from canvassing all issues: see Cretazzo v Lombardi (1975) 13 SASR 4 at 16; Hughes v Western Australian Cricket Association (Inc) (1986) 8 ATPR 40-748 at 48, 136; Dodds Family Invesments Pty Limited & Anor v Lane Industries Pty Limited & Ors 26 IPR 261 at 271, 272; J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers, Western Australian Branch & Anor (No 2) [1992] 46 IR 301 at 302-303. If the conduct of that party was such as to reasonably prolong the proceedings the usual rule may be varied: see Latoudis v Casey (1990) 170 CLR 534 at 565 ; In re Elgindata Ltd [No 2] [1992] 1 WLR 1207 at 1214 - 1218; Cummings v Lewis (1993) 113 ALR 285 at 324-329.

12. It was necessary for the applicant to bring the proceedings in order to achieve the increased amount awarded pursuant to s 55(a) of the Act and also compensation in respect of the disturbance items for which no compensation had been offered. The Court concludes therefore that the applicant should be regarded as successful.

13. The Court also takes into consideration the principle that compensation awarded to an applicant for a public acquisition should not be diminished by costs incurred to achieve such compensation. The Court also finds that there is no unreasonable conduct on the part of the applicant such as to justify an apportionment.

Orders

14. The Court therefore orders:-

1. The respondent pay the costs of the applicant.

2. The respondent pay the costs of this motion.