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Roads Corporation v Love (No 2)

Roads Corporation v Love (No 2)

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Case Copied 23 April 2010 37 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 10147 of 2005

ROADS CORPORATION	Plaintiff
v
THOMAS JAMES LOVE	Respondent

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February 2010
DATE OF JUDGMENT:	23 April 2010
CASE MAY BE CITED AS:	Roads Corporation v Love
MEDIUM NEUTRAL CITATION:	[2010] VSC 154

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LAND COMPENSATION – Costs of disputed claim – General principles – Non-applicability of rules relating to offers of compromise – Potential relevance of Calderbank offer – Issues based awards of costs – Costs consequent upon refusal of Calderbank offer – Special award of costs – Incidental questions of costs – Three counsel – Reserved costs – Costs of transcript – Mediation order – Section 91 Land Acquisition and Compensation Act 1986.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr C. J. Delany SC with
Mr P. Chiappi and

Mr S. Goubran

Garland Hawthorn Brahe

For the Defendant

Mr D. O’Brien with

Mr A. Fraatz

McCluskys Lawyers

TABLE OF CONTENTS

Introduction........................................................................................................................................ 2

General principles............................................................................................................................. 6

The relevance of ‘secret offers’........................................................................................................ 8

Should each of the parties receive an award of costs in the present case and, if so, in respect of what aspects of the proceeding?.................................................................................................... 16

Should costs be awarded on a special basis?.............................................................................. 19

Further submissions of counsel.................................................................................................... 24

Incidental questions of costs......................................................................................................... 25

HIS HONOUR:

Introduction

I have given judgment in this matter assessing compensation in the sum of $444,334.92 calculated having regard to the following components:

(a)

market value

$310,000

(b)

special value

$72,655

(c)

disturbance

$782

(d)

solatium

$30,000

Total

Say

$413,437

$414,000

Plus agreed professional expenses

$30,334.92

TOTAL

$444,334.92

Interest has been agreed in the sum of $188,020.64 as at 26 February 2010 and thereafter until payment of the principal sum at the daily rate of $50.44.

The remaining issue is the question of costs. The Corporation seeks orders that the Corporation pay Mr Love’s costs of the proceeding up to 15 November 2007 on the party‑party scale and that Mr Love pay the Corporation’s costs of the proceeding from 16 November 2007 on the solicitor‑client scale. It seeks a further order that the Corporation’s costs include three counsel, transcript and all reserved costs. It also seeks an order for the Corporation’s costs of, and incidental to, the application for costs heard on 26 February 2010 on the party‑party scale.

Mr Love submits that he should receive his costs of the proceeding up until 17 April 2009 on a party‑party basis but because:

(a) Mr Love’s success at trial was, when compared to the Corporation’s offer of 17 April 2009, only marginal; and

(b) Mr Love failed in the very substantial claims which were, in effect, the reasons for the matter proceeding to trial;

Mr Love ought to pay on a party‑party basis 80 per cent of the costs of the Corporation for the trial of the proceeding and the Corporation ought pay on a party‑party basis 20 per cent of Mr Love’s 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: [2010] VSC 154
Decision Date: 23 April 2010

CaseChat Overview and Summary

The Roads Corporation, an instrumentality of the state government responsible for managing and maintaining roads, initiated proceedings against Love, a property owner, over compensation for land acquired for road works. The dispute involved the valuation of Love's land and the entitlement to costs associated with the protracted litigation. The case was heard in the Supreme Court of Victoria.

The primary legal issues before the court were the principles governing the costs of a disputed compensation claim, specifically whether the rules concerning offers of compromise could be applied in this context. Additionally, the court considered the potential relevance of a Calderbank offer, a well-known legal principle allowing parties to make offers without prejudice to avoid costs if the offer was ultimately accepted. The court also examined the appropriateness of an issues-based award of costs, the consequences of rejecting a Calderbank offer, and the special award of costs for the proceedings' complexity and the involvement of three counsel. The court further deliberated on the costs of the transcript, the impact of a mediation order, and the application of section 91 of the Land Acquisition and Compensation Act 1986.

In its reasoning, the court held that the general principles governing offers of compromise did not apply to the compensation claim. However, it acknowledged the potential relevance of a Calderbank offer in assessing costs. The court awarded costs based on the issues raised in the case, highlighting the significant refusal of a Calderbank offer as a factor. The special award of costs recognised the complexity of the proceedings and the need for three counsel. The court also addressed the costs of the transcript, the mediation order, and the applicability of section 91 of the Act. Ultimately, the court made an order in favour of Love, awarding costs under the outlined principles.

The final orders included a detailed breakdown of costs, reserving certain aspects for future determination, and addressing the incidental questions of costs, including those related to the transcript and mediation. The court also confirmed the applicability of section 91 of the Act in the context of the proceedings.

Orders