Sales v Transport for NSW

[2020] NSWLEC 145

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sales and Anor v Transport for NSW [2020] NSWLEC 145

Hearing dates:

12 October 2020

Date of orders:

14 October 2020

Decision date:

14 October 2020

Jurisdiction:

Class 3

Before:

Robson J

Decision:

Leave to file and rely upon further evidence is refused

Catchwords:

EVIDENCE — Leave sought to rely upon report — Where rules of evidence do not apply — Lateness — Evidence not reasonably required to resolve the issues in the proceedings — Leave refused

Legislation Cited:

Land and Environment Court Act 1979 (NSW) s 37

Land and Environment Court Rules 2007 (NSW) r 3.1

Uniform Civil Procedure Rules 2005 (NSW) r 31.19

Cases Cited:

Shellharbour City Council v Minister for Planning [2011] NSWCA 195; (2011) 189 LGERA 348

Category:

Procedural and other rulings

Parties:

Nancy Eileen Sales (First Applicant)
Paul Howard Roots (Second Applicant)
Gail Elizabeth Borg (Third Applicant)
Transport for NSW (Respondent)

Representation:

Counsel:
P Tomasetti SC with A Pearman (Applicants)
L Waterson with T Poisel (Respondent)

Solicitors:
MJO Legal (Applicants)
Hunt & Hunt Lawyers (Respondent)

File Number(s):

2018/00387274

Publication restriction:

Nil

Judgment

1. Before the Court is an application to rely upon further evidence made on the first day of the hearing of these Class 3 proceedings, in which Nancy Eileen Sales, Paul Howard Roots and Gail Elizabeth Borg (collectively ‘applicants’) seek compensation arising from the acquisition by Transport for NSW (‘respondent’) on 23 February 2018 of an area of land of approximately 3.5ha at Luddenham for the purpose of the realignment of The Northern Road.

2. During opening submissions, Mr P Tomasetti of senior counsel, who appears with Ms A Pearman of counsel for the applicants, sought leave to rely upon a report dated 9 October 2020 prepared by Chris Pope, a director of a property consultancy company that provides strategic property advice and property development services. Mr Pope opines as to whether the parties’ valuation experts, being Grahame Hollinshead (retained for the respondent) and Paul Dale (retained for the applicants), have each used a computer program known as “EstateMaster” in accordance with best practice.

3. Mr L Waterson of counsel, who appears with Mr T Poisel of counsel for the respondent, objects to the tender.

4. After opening addresses, I heard detailed submissions in relation to the further evidence from both Mr Tomasetti and Mr Waterson and I informed the parties that I intended to provide judgment when the hearing resumed in Court on 14 October 2020 after the conduct of a scheduled all-day view of the subject land and various comparable sale sites on 13 October 2020.

5. For the reasons that follow, I reject the report of Mr Pope.

Background

6. These proceedings were commenced on 17 December 2018. Points of claim and points of defence (subsequently amended) were filed and expert evidence was subsequently marshalled. Relevant to the present application in relation to expert valuation evidence, the applicants filed a statement of Paul Dale dated 31 January 2020 and the respondent filed a statement of Grahame Hollinshead dated 26 February 2020. Thereafter, a joint valuation report prepared by Messrs Hollinshead and Dale dated 26 August 2020 was filed and, consequent upon the filing of a supplementary statement of Mr Hollinshead dated 18 September 2020, a further joint valuation report dated 1 October 2020 was filed.

7. In summary, the applicants submit:

1. The further joint report prepared by the valuers dated 1 October 2020 was the first occasion on which the workings and inputs in regard to Mr Hollinshead’s use of the well-accepted hypothetical development approach in his determination of land value (and, relevantly, the way in which Mr Hollinshead used certain inputs within the EstateMaster program) was provided.

2. While Mr Dale, adopting the hypothetical development approach, consistently includes inputs for both “internal rate of return” and “profit and risk” (referred to as “hurdle rates” in the evidence and submissions) in his calculations of land value, Mr Hollinshead on a number of occasions in his material includes an adjustment of 20% for “internal rate of return”, but fails to include any specific adjustment for “profit and risk”.

3. The evidence of Mr Pope, who is an “expert modeller” (Tcpt, 12 October 2020, p 28(10)) and works with the EstateMaster program “every day in the industry”, is therefore sought to be relied upon to resolve a “controversy” existing between Mr Dale and Mr Hollinshead as to the correctness of how each has carried out the “specialist task of using the EstateMaster program to generate a residual land value”.

8. In summary, the respondent submits:

1. Mr Pope is not a valuer and it would be inappropriate for his report, which is at a “high level” in any event, to be allowed at the “heel of the hunt” (Tcpt, 12 October 2020, p 57(39)), primarily because the issue regarding “internal rate of return” and “profit and risk” inputs has been in dispute since the commencement of the valuation process. The fact that Mr Hollinshead has declined to use the “profit and risk” hurdle rate parameter has been known to the applicants since the receipt of his first statement.

2. Mr Hollinshead’s primary statement dated 26 February 2020 noted that the EstateMaster program, which he used as a secondary or check method, was industry standard and that there were two different methods through which residual land value could be calculated using EstateMaster. He then justifies his particular method by explaining that the “internal rate of return” hurdle rate takes into account the time value of money.

3. The issue concerning which inputs ought to be used was specifically raised in the first joint valuers report dated 26 August 2020, in which Mr Dale noted that Mr Hollinshead had not disclosed his “profit and risk” margins. Mr Dale then discussed the approach adopted by Mr Hollinshead over a number of pages in the joint report, including calculating the “profit and risk” margins which he considered Mr Hollinshead had used.

4. Mr Pope’s report does not assist the Court in resolving the dispute between experienced valuers which, in any event, is a matter for adjudication by the Court.

5. The admission of Mr Pope’s report would prejudice the respondent as – Mr Pope will be required for cross-examination; additional evidence will need to be adduced in response; and the two valuation experts will need to be cross-examined on “effectively the same issue”.

Consideration

9. Although the rules of evidence do not strictly apply to proceedings in Class 3 of the Court’s jurisdiction, it is obvious that matters of fairness and justice and the well-known principles of case management must still be considered.

10. Further, r 31.19 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’), which applies to proceedings in Class 3 of this Court’s jurisdiction by the application of r 3.1 of the Land and Environment Court Rules 2007 (NSW) and pars (23) and (26) of the Court’s Practice Note Class 3 Compensation Claims dated 15 March 2019, requires parties to seek directions from the Court before they will be permitted to adduce expert evidence.

11. Mr Pope states that his instructions were to review and advise whether or not the valuers “appeared to have used the EstateMaster program in accordance with best practice”. He concludes, in my view, without detailed reasoning that Mr Hollinshead appears not to have used the program “strictly in accordance with industry best practice…”. In passing, and not determinative in my present consideration, he does not indicate with any specificity what constitutes “industry best practice”.

12. Having read the material to which I was directed, and having heard detailed submissions, I refuse leave to rely on, and therefore reject the tender of, the further evidence. My reasons may be shortly stated.

13. First, there has been no persuasive explanation for the lateness of the provision of the report of Mr Pope. Having looked closely at the various references to the adoption and use of the EstateMaster program in the valuation evidence, and in particular the two joint valuation reports, it is clear that each of the valuers has adopted a different approach and has sought to respond to the other valuer’s approach. As such, I consider that it remains for the Court to consider their evidence and, to the extent that there is conflict, to determine which, if any, is to be preferred. I also accept that Mr Hollinshead did refer to the EstateMaster “User Guide” and did not adopt a “profit and risk” parameter for the reasons stated in his original statement.

14. Second, in Shellharbour City Council v Minister for Planning [2011] NSWCA 195; (2011) 189 LGERA 348 at [26], in considering the giving of directions under r 31.19 of the UCPR, Giles JA commented that the primary purpose of the rule is to control the calling of expert evidence and to restrict it to that “which is reasonably required to resolve the proceedings having regard to the admonition of just, quick and cheap”. His Honour also stated “That evidence may be relevant and admissible is not enough, let alone that it is possible to argue that it is relevant and admissible.” In the circumstances, I do not consider that the report of Mr Pope is reasonably required to resolve the issues in the proceedings given the competing approaches of the valuers, both in relation to the appropriate methodology they adopt and the manner in which each has used the EstateMaster program.

15. In summary, I consider that the receipt of Mr Pope’s report at this late stage, with the consequence that additional time will most likely be occupied in relation to cross-examination of Mr Pope, and that additional evidence is likely to be adduced by the respondent in the circumstances where each of the valuation experts has already explained his position, leads me ineluctably to the view that it is inappropriate that leave be given, or directions made, to allow the admission of the further evidence.

Decision

16. Leave to file and rely upon further evidence is refused.

**********

Decision last updated: 16 October 2020