Sales v Transport for NSW

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…