Murray v Valaire - [2001] NSWLEC 57

Land and Environment Court

of New South Wales

CITATION: Murray v Valaire [2001] NSWLEC 57

PARTIES:
APPLICANT:
Craig Murray
RESPONDENT:
Trevor Valaire

FILE NUMBER(S): 40152 of 2000

CORAM: Lloyd J

KEY ISSUES: Evidence :- admissibility - application for costs - proceedings not determined - evidence going to merits inadmissible

LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 15 r 7

CASES CITED: Beilby v Viney Pty Limited [2000] NSWLEC 93;
Hayden Theatres Pty Limited v Penrith City Council (1998) 105 LGERA 230;
Joanou v Randwick City Council (1998) 105 LGERA 237;
Port Stephens Shire Council v Grivas & Ors [1999] NSWLEC 135;
Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622;
Thomson v Mosman Council [1999] NSWLEC 86

DATES OF HEARING: 29/01/2001

EX TEMPORE
JUDGMENT DATE :
01/29/2001

LEGAL REPRESENTATIVES:
APPLICANT:
Mr P R Clay (Barrister)
SOLICITORS:
Blake Dawson Waldron
RESPONDENT:
Mr D R Parry (Barrister)
SOLICITORS:
Abbott Tout

JUDGMENT:

Craig Murray

Applicant
v
Trevor Valaire
Respondent

EXTEMPORE JUDGMENT

ON ADMISSIBILITY OF TENDER

HIS HONOUR:

1. This is an application by the applicant for costs made pursuant to the Land and Environment Court Rules 1996, Part 15 Rule 7 which provides as follows:

The Court may order the respondent to pay the costs of the proceedings where a respondent satisfies or causes to be satisfied the claim of the applicant after the proceedings have been commenced.

2. The applicant seeks to tender a bundle of documents which bundle contains a large amount of material to which objection is made by the respondent. No objection is made to the development consent DA24396, to the Class 4 application No. 41052 of 2000 (being the originating process in this proceedings), to the applicant’s Points of Claim or to the respondent’s Points of Defence.

3. The respondent objects, however, to the tender of other material in the bundle, which includes the various affidavits filed in the proceedings by the applicant and certain other material.

4. The tender of the documents is made presumably for the purpose of reading the material, including the affidavit material to which I have referred.

5. The principal proceedings have not continued to a conclusion. Following the commencement of those proceedings, the local council, Leichhardt Municipal Council, commenced separate proceedings against the respondent arising out of the same facts. The proceedings brought by Leichhardt Municipal Council were ultimately settled by the filing of consent orders on 30 November 2000 in which it was agreed between those parties that the Council’s application be dismissed and the injunction be extinguished upon the issue of a new construction certificate relating to work being done on the respondent’s land. The orders made in the proceedings brought by Leichhardt Municipal Council also had the consequence of effectively resolving the present proceedings.

6. The present question is the admissibility of the material in the bundle to which objection is made and in particular the affidavits which were filed in the matter. The leading authority relied…

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.

Continue reading Murray v Valaire

Details

AGLC: Murray v Valaire [2001] NSWLEC 57
Case: [2001] NSWLEC 57
Decision Date: 01/29/2001

CaseChat Overview and Summary

The matter before the court in Murray v Valaire was an application for costs by the applicant, Craig Murray, against the respondent, Trevor Valaire. The case arose from proceedings that had been initiated by Craig Murray, which were subsequently settled following separate proceedings brought by Leichhardt Municipal Council against Trevor Valaire. The court was required to determine whether the tender of certain documents, specifically affidavits and other material, should be admitted as evidence in the context of the costs application.

The key legal issue was the admissibility of the tendered material. The court was guided by the principles set forth in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin, which emphasize that in cases where proceedings are settled or resolved without a hearing on the merits, the court should not speculate on the likely outcome of the case. Instead, the court must focus on whether the parties acted reasonably throughout the litigation process. The court also considered whether the tendered material, particularly the affidavits, was relevant to the application for costs under Part 15 Rule 7 of the Land and Environment Court Rules 1996, or whether it should be excluded as prejudicial.

In its judgment, the court held that the tendered material, including the affidavits, was irrelevant and potentially prejudicial. The court ruled that it should not examine the affidavits to assess the merits of the case, as doing so would involve speculating on the outcome of a hypothetical case. Instead, the court should focus on whether the respondent satisfied the applicant's claim after the proceedings were initiated. Since the material was deemed irrelevant and prejudicial, the court rejected the tender of the objected documents. The court also noted that the principles governing costs applications in settled cases applied equally under the general jurisdiction to order costs under section 69 of the Land and Environment Court Act 1979.

The court concluded that the application for costs should not proceed on the basis of the tendered material. The judgment underscored the importance of adhering to the established legal principles when determining the admissibility of evidence in costs applications, particularly in cases where the proceedings have been settled or resolved without a full hearing.

Orders