Secretary to the Department of Business and Innovation v Murdesk Investments Pty Ltd (No 2)

In the case of Secretary to the Department of Business and Innovation v Murdesk Investments Pty Ltd (No 2), the dispute centred on the costs incurred in a land acquisition and compensation matter, as well as the application of the relevant legal principles governing the assessment of those costs. The case was heard in the Supreme Court of Victoria, presided over by Justice Beach. The central issue before the court was whether an offer of compromise made by the acquiring authority under the Supreme Court (General Civil Procedure) Rules 2005 could be considered as a Calderbank offer, and if so, what effect this would have on the assessment of costs. Additionally, the court had to determine whether the claims made by the claimant were excessive, and how factors such as delay in providing valuation evidence and improper interference in the preparation of expert reports should be taken into account when assessing costs.

The court began by examining the nature of the offer of compromise made by the acquiring authority. It was noted that the offer, while not explicitly stated to be a Calderbank offer, could still be considered as such if it met the necessary criteria. The court held that the offer could indeed be regarded as a Calderbank offer, and thus, the acquiring authority was entitled to costs from the date of the offer up until the time of settlement, as per the relevant provisions of the Land Acquisition and Compensation Act 1986 (Vic). Furthermore, the court found that the claimant's claims were excessive, and that this was a significant factor to consider when assessing costs. The court also took into account the delay in the provision of valuation evidence by the claimant, as well as improper interference in the preparation of expert reports, which further supported the acquiring authority's application for costs.

In light of these findings, the court exercised its discretion under section 91 of the Land Acquisition and Compensation Act 1986 (Vic) and ordered that the acquiring authority be awarded costs from the date of the Calderbank offer up until the time of settlement. The court also noted that the claimant's excessive claims, along with the delay in providing valuation evidence and improper interference in the preparation of expert reports, warranted the awarding of costs in favour of the acquiring authority. This decision was in line with the principles established in Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435 and Love v Roads Corporation [2011] VSCA 434.

The court's final orders in this matter were that the acquiring authority be awarded costs from the date of the Calderbank offer up until the time of settlement, and that the claimant bear its own costs in relation to the claim. This decision serves as a reminder of the importance of making reasonable and proportionate claims, as well as the need to provide necessary evidence and cooperate with the opposing party in a timely and appropriate manner.