Newman v Valuer General

[2005] NSWLEC 134

Land and Environment Court

of New South Wales

CITATION:

Newman v Valuer General [2005] NSWLEC 134

PARTIES:

APPLICANT
Philip M Newman

RESPONDENT
Valuer General

FILE NUMBER(S):

30459 of 2004

CORAM:

Hussey C

KEY ISSUES:

Costs :- arising from valuation appeal

LEGISLATION CITED:

Land and Environment Court Act 1979

CASES CITED:

Moodley v Botany Bay CC Appeal No. 11438 of 2003

DATES OF HEARING:

11/10/2004

 
DATE OF JUDGMENT: 

03/30/2005

LEGAL REPRESENTATIVES:

APPLICANT
N/A

RESPONDENT
I V Knight (Crown Solicitor's Office)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

6 December 2004

30459 of 2004 Philip M Newman v Valuer General

JUDGMENT

Background.

1 The applicant initially lodged an appeal against the disallowance of an objection that the land value at 9 Denison Street, Manly was too high.

2 The matter was set down for hearing on 26 July 2004 and commenced with a view. A detailed statement of evidence by valuer, Mr M. Bishenden was tendered on behalf of the respondent.

3 No appearance or substantive evidence was submitted by the applicant. Although, a brief interview was undertaken with the tenant of the property, who allowed a site inspection to be undertaken.

4 Consequently, Mr Bishenden’s statement was considered and his analysis and conclusion accepted, and in the absence of any challenge, resulted in orders confirming the V G Valuation.

5 From this the respondent has made an application for costs. This detailed cost application has been made by the Crown Solicitor on behalf of the Valuer General. The applicant was notified of this costs application and given the opportunity to respond but has not done so in respect of the cost application. Instead the applicant has made brief submissions regarding merit considerations previously determined in the original appeal.

6 The respondent's submissions contain a comprehensive chronology of events, which includes correspondence advising the applicant of details of procedures involved in undertaking an appeal. On 20 May the applicant was informed as follows :

(a) that the applicant bore the onus of proof;
(b) the respondent would engaged an expert valuer;
(c) the respondent would brief a barrister to appear at the hearing;
(d) the Land and Environment Court had a standard direction for expert evidence;

7 Following this, there was an exchange of correspondence endeavouring to refine the particular valuation issues. Then on 29 June 2004, the Registrar gave directions in relation to a timetable for filing of evidence and listed the matter for hearing on 24 August 2004.

8 However, the applicant did not comply and did not attend the hearing or give notice of the need for an adjournment. Consequently, the basic thrust of the cost application is that the applicant, after having initiated proceedings, did not take them seriously because:

• he failed to attend the callover,
• he did not respond to the Registrar's timetable direction,
• he filed no statement,
• he made no attempt for adjournment of the hearing when he knew that he would be overseas on that date.

9 Notwithstanding this lack of presentation of a case by the applicant, the respondent has incurred expenses in responding to the appeal application. In making the costs application, the respondent refers to a number of cases where costs have been awarded. In this case, the application is that in these particular circumstances is it is fair and reasonable for the Court to make a costs order in favour of the respondent as the respondent:

• went to great expense to understand and meet the applicant's case despite the applicant's lack of particulars and specificity;
• prepared the matter to comply with a timetable and the hearing as listed on 24 August 2004; and
• incurred costs of attending the on-site hearing when the applicant did not attend.

10 In my assessment of this situation, I am satisfied that the respondent has made more than reasonable efforts to confer with the applicant and resolve the matter, subject to some supporting case from the applicant. In the absence of this, I am therefore persuaded to accept the respondent’s submissions that "the applicant did not take the matter seriously “.

11 With reference to the applicant's response to the costs application, no reasonable submissions have been made, which in my opinion would result in this cost application being dismissed. Instead the applicant makes reference only to issues previously determined in merits hearing.

12 Under these circumstances then, I note that the Chief Judge has concurred with costs being awarded in some circumstances. In the matter of Moodley v Botany Bay CC (Appeal No. 11438/03), the Chief Judge stated:

"Accordingly, by making an application for costs Mr Moodley has caused Council to expend money in defending the application which it would otherwise not have incurred. In those circumstances I am satisfied that the order, which the Commissioner proposed is appropriate and accordingly I should concur with the making of such an order."

13 I am therefore satisfied that the applicant has shown little commitment to presenting a reasonable case, in accordance with the Court procedures, which have been made known to him. This has caused the VG to expend monies in defending the application, which it probably otherwise would not have incurred. Therefore I consider it reasonable to award costs against the applicant in this case subject to the concurrence of the Chief Judge.

14 With the concurrence of the Chief Judge, pursuant to s 69(8) of the Land and Environment Court Act 1979, the orders of the Court are:

1. The applicant pay reasonable costs to the respondent for the costs incurred in this appeal.

___________________________

R. Hussey

Commissioner of the Court

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