Maloney v Cowra Shire Council
[2000] NSWLEC 107
•06/08/2000
Land and Environment Court
of New South Wales
CITATION: Maloney v Cowra Shire Council [2000] NSWLEC 107 PARTIES: APPLICANTS:
RESPONDENT:
Gregory Ross Maloney and Pamela Irene Maloney
Cowra Shire CouncilFILE NUMBER(S): 30032B of 1997 CORAM: Talbot J KEY ISSUES: Costs :- claim for compensation for land resumed - special order where applicant not wholly successful
Compensation :- special order for costs where applicant not wholly successfulLEGISLATION CITED: Land Acquisition (Just Terms Compensation) Act 1991 CASES CITED: North Albury Shopping Centre Pty Ltd v Albury Municipal Council (1983) 49 LGRA 215;
Rukavina and Robertson v Wagga Wagga City Council (1993) 80 LGERA 8DATES OF HEARING: 31/05/2000 DATE OF JUDGMENT:
06/08/2000LEGAL REPRESENTATIVES: RESPONDENT:
APPLICANTS:
Mr J B Maston (Barrister)
SOLICITORS:
Coode and Corry
Mr J A Ayling (Barrister)
SOLICITORS:
Pike Pike & Fenwick
JUDGMENT:
IN THE LAND AND Matter No. 30032B of 1997
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 8 June, 2000
Respondent
1. In a judgment delivered on 29 February 2000 the Court awarded compensation in a total sum of $43,560 to the applicants following the compulsory acquisition of a formed road forming part of the property “Glenbrook”, Kangarooby Road, Gooloogong on 25 October 1996.
2. Following mediation after the commencement of the proceedings the parties were able to reach agreement in regard to some aspects of the compensation payable.
3. The remaining issues, litigated over three days, 14, 15 and 16 February 2000, related to the value of road improvements, the adjoining owner influence in determining added value to market value and the costs to be incurred by the owner for a new fence along the road alignment. The claim for added value of the improvements on the land, being roadworks, constructed by the council was entirely unsuccessful.
4. The cost of fencing on each side of the road was allowed as a financial cost that the applicant might reasonably incur as a direct and natural consequence of the acquisition. Although the council resisted this claim the evidence of the cost of fencing and support for this aspect of the claim came almost entirely from the applicants’ witnesses whereas the council’s opposition rested principally on the contention that no fence was required.
5. Mr Ayling argues on behalf of the council that because it was the successful party in respect of the major issue in contention it should not have to bear the burden of costs, at least from any date after the consent orders were made following mediation. Furthermore, he says if the applicant had not pursued the claim for road improvements, it might have been reasonably expected that as a matter of practicality the council would not have seriously contested the claim for fencing in the sum of $17,060, or at least would have been prepared to compromise that claim. The Court is asked to take into account the prospect of a settlement under those circumstances in determining the question of costs.
6. Mr Maston, on the other hand, contends on behalf of the applicant that it was necessary for the matter to proceed to a hearing in order to recover the additional compensation, being $17,060 for fencing and $500 to represent an addition to the market value of the land taking into account the adjoining owner influence. He says that s 68(1) of the Land Acquisition (Just Terms Compensation) Act 1991 requires that compensation shall be awarded as a lump sum and that as his clients achieved a result over and above the amount the council was prepared to pay then they should be regarded as the successful party. Even if there was no added value by virtue of the road improvements, nevertheless the applicants were successful by increasing the market value of the land in the sum of $500.
7. The Court agrees with Mr Maston’s assessment that if there had been no question of the value of the roadworks the hearing would not have extended beyond one day. He makes the submission that as, prima facie, the acquisition referred to the land as a “formed road”, the applicants’ were justified in pursuing a claim for the value of the roadworks particularly where the issues were complex, the point was novel and the contention was not frivolous, vexatious or capricious.
9. Speaking in the context of the cost of proceedings before a Local Land Board, Cripps J, as he then was, made the following observation in North Albury Shopping Centre Pty Ltd v Albury Municipal Council (1983) 49 LGRA 215 at 221:-8. There is no evidence of any offer of settlement or compromise by either party. Mr Ayling told the Court that if there had been an offer of compromise from the council it would have been forthcoming only in respect of the fencing issue.
- The resumption of land is a serious matter. It is not apparent to me why a person who has had his land taken by a government or some other statutory authority should, in addition to losing his land, bear his own costs of seeking what in fact turns out to be just compensation.
10. There are a number of decisions which reiterate the well established principle that costs in compensation proceedings are, as always, discretionary and that there can be no hard and fast rule (see, for example, the cases cited by Pearlman J in Rukavina and Robertson v Wagga Wagga City Council (1993) 80 LGERA 8 at 9.
11. It is clearly open to the Court to have regard to the circumstances in each case and make such order as may be warranted after taking into account relevant factors.
12. In Rukavina , her Honour was satisfied that in all of the circumstances of that case it was appropriate for a special order to be made in respect of costs because although the applicant was generally successful, he failed in respect of three important issues.
13. Notwithstanding the submission made by Mr Maston to the contrary and although the issue may be regarded in some respects as being a complex one, the rejection of the applicants’ claim for the added value of the roadworks was determined by relying on established principle applied to the facts of the case.
14. The Court is satisfied that the time spent at the hearing on the respective issues is a proper reflection of the manner in which costs should be apportioned.
15. A special order is justified in the circumstances of this case where a major plank of the applicants’ claim, being for an additional $164,000, was not accepted and the amount of compensation, in total, including the amounts previously agreed following mediation was $43,560.
16. It is appropriate that the applicants’ recover one third of the costs incurred after the date of the consent orders.
17. The respondent will be ordered to pay one third of the costs of the applicants after the mediation on 2 April 1998 and the whole of the applicants’ costs up to that date.
18. The Court makes the following orders:Orders
2. The respondent is ordered to pay one third of the applicants’ costs after 2 April 1998.1. The respondent is ordered to pay the applicants’ costs up to and including 2 April 1998.
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