Moyle v Sutherland Shire Council - [2007] NSWLEC 243

Land and Environment Court

of New South Wales

CITATION: Buchanan; Kapanke; Moyle v Sutherland Shire Council [2007] NSWLEC 243

PARTIES:
30290 of 2005
APPLICANTS:
Kerrie Jane Buchanan and Tony Charles Buchanan
RESPONDENT:
Sutherland Shire Council
30291 of 2005
APPLICANTS:
Traudel Kapanke and Manfred Kapanke
RESPONDENT:
Sutherland Shire Council
30292 of 2005
APPLICANTS:
Trudie Leonie Kathleen Moyle and Gregory John Moyle
RESPONDENT:
Sutherland Shire Council

FILE NUMBER(S): 30290; 30291; 30292 of 2005

CORAM: Biscoe J

KEY ISSUES: Compulsory Acquisition of Land :- settlement agreement - construction - alternatively whether applicant entitled to withdraw offer of compromise

LEGISLATION CITED: Land Acquisition (Just Terms Compensation) Act 1991, ss 55(d), 59(a) and (b)
Land and Environment Court Rules 1996 Pt 13 r 27
Supreme Court Rules 1970 [as in force immediately prior to the commencement of the Supreme Court Rules (Amendment No 405) 2005 ] Pt 22 rr 1, 3(6) , Pt 52A r 22

CASES CITED: Associated Confectionary (Aust) Ltd v Mineral and Chemical Traders Pty Ltd (1991) 25 NSWLR 349;
Halloran and Sealark Pty Ltd v Shoalhaven City Council [1999] NSWLEC 259;
Roberts v Rodier [2006] NSWSC 1084

DATES OF HEARING: 19 April 2007

DATE OF JUDGMENT:
2 May 2007

LEGAL REPRESENTATIVES:
APPLICANTS:
Mr J Webster SC
SOLICITORS
Burrell Solicitors
RESPONDENT:
Mr J Ayling SC
SOLICITORS
Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

2 May 2007

30290 of 2005

BUCHANAN v SUTHERLAND SHIRE COUNCIL

30291 of 2005

KAPANKE v SUTHERLAND SHIRE COUNCIL

30292 of 2005

MOYLE v SUTHERLAND SHIRE COUNCIL

JUDGMENT

INTRODUCTION

1 HIS HONOUR: In these three related matters the applicants lodged objections with the Court against the amount of compensation offered by the respondent council for its compulsory acquisition of their lands under the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act). Now before the Court are competing motions for entry of judgment pursuant to a settlement agreement in each matter. The first issue is whether, on the proper construction of each settlement agreement, the applicant is entitled to recover legal and consultants costs which constitute loss attributable to disturbance under ss 55(d) and 59(a) and (b) of the Just Terms Act. If not, the applicants alternatively seek leave, which is opposed, to withdraw their offers of compromise notwithstanding their acceptance.

2 The relief sought is illustrated by the applicants’ amended notice of motion in the Buchanan case:

Offers of Compromise

3 The contentious words in paragraph 1 are “such costs…

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] NSWLEC 243
Decision Date: 2 May 2007

CaseChat Overview and Summary

The applicants, Kerrie Jane Buchanan, Tony Charles Buchanan, Traudel Kapanke, Manfred Kapanke, and Trudie Leonie Kathleen Moyle and Gregory John Moyle, challenged the amount of compensation offered by the Sutherland Shire Council for the compulsory acquisition of their lands under the Land Acquisition (Just Terms Compensation) Act 1991. The primary issue before the court was whether the applicants were entitled to recover legal and consultant costs, which constituted losses attributable to disturbance under sections 55(d) and 59(a) and (b) of the Just Terms Act. The applicants sought judgment for the compensation amount plus their legal and consultant costs. Alternatively, they sought leave to withdraw their offers of compromise, which they had accepted based on a mistaken belief about the inclusion of these costs.

The court found that the applicants' solicitor had mistakenly believed that the offers of compromise included legal and consultant costs as losses attributable to disturbance under the Just Terms Act. However, upon proper construction, the court determined that the words "all legal and consultants costs" in the offers of compromise meant those costs allowable as costs of the proceedings as well as those allowable under the Just Terms Act as items of disturbance under sections 55(d) and 59(a) and (b). Consequently, the court ruled that the applicants' claim for such costs was limited to the items in the schedule attached to the solicitor's letter dated 16 April 2007. The court also concluded that the applicants' alternative claim for leave to withdraw their offers of compromise would fail, as the offers of compromise did not comply with the formal requirements of Pt 22 Div 1.

The court made declarations and orders to the effect that the respondent council was liable to pay the applicants' legal and consultant costs under sections 59(a) and (b) of the Just Terms Act, as agreed or assessed. The court also ordered that the respondent pay the applicants' costs of the proceedings as agreed or assessed, excluding the costs specifically relating to hypothetical development scheme option 3. The court granted liberty to apply on five days' notice for the purpose of seeking the court's assessment of the legal and consultant costs if they were not agreed.

Orders