Sharp v Western Australian Planning Commission
[2000] WASC 7
•31 JANUARY 2000
SHARP & ANOR -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2000] WASC 7
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 7 | |
| Case No: | CIV:1076/1998 | 19 NOVEMBER, 17 DECEMBER 1999 | |
| Coram: | COMMISSIONER PRINGLE QC | 31/01/00 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Rulings made allowing or disallowing ancillary claims, quantifying claims allowed, and providing for solatium, interest and costs | ||
| PDF Version |
| Parties: | ROBERT SHARP FRANCES LINCA SHARP WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Further consideration of ancillary orders in a resumption case Turns on own facts |
Legislation: | Supreme Court Act 1935, s 142 Rules of the Supreme Court, O 24A r 10(4) |
Case References: | Brewarrana Pty Ltd v Commissioner of Highways (1973) 32 LGRA 170 Corse v Robinson, unreported; FCt SCt of WA; Library No. 970669; 8 December 1997 Cretazzo v Lombardi (1975) 13 SASR 4 Hughes v WA Cricket Association (Inc) [1986] ATPR 40-748 Mok v Minister for Immigration Local Government and Ethnic Affairs (1993) 47 FCR 81 Re Elgindata (No.2) [1992] 1 WLR 1207 Spargo v Haden Engineering Pty Ltd (1993) 60 SASR 39 Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201 Westgold Resources NL v St George Bank Ltd, unreported; SCt of WA; Library No 980717; 9 December 1998 Bergman v Holroyd Municipal Council (1988) 66 LGRA 68 Brown Brothers (Marine) Holdings Pty Ltd v NSW Land & Housing Corporation (1991) 72 LGRA 50 Commonwealth v Milledge (1953) 90 CLR 157 Crisp & Gunn Co-operative Ltd (1963) 110 CLR 538 Dell Holdings Ltd v Toronto Area Transit Operating Authority (1995) 55 LCR 1 Harvey v Crawley Development Corporation [1957] 1 QB 485 Knowalow v Minister for Works [1961] WARW 40 Kontos v Roads & Traffic Authority (1992) 75 LGRA 218 Rosenbaum v The Minister (1965) 114 CLR 424 Wilson v Carter [1893] AC 638 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : SHARP & ANOR -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2000] WASC 7 CORAM : COMMISSIONER PRINGLE QC HEARD : 19 NOVEMBER, 17 DECEMBER 1999 DELIVERED : 31 JANUARY 2000 FILE NO/S : CIV 1076 of 1998 BETWEEN : ROBERT SHARP
- FRANCES LINCA SHARP
Plaintiffs
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Defendant
Catchwords:
Further consideration of ancillary orders in a resumption case - Turns on own facts
Legislation:
Supreme Court Act 1935, s 142
Rules of the Supreme Court, O 24A r 10(4)
Result:
Rulings made allowing or disallowing ancillary claims, quantifying claims allowed, and providing for solatium, interest and costs
(Page 2)
Representation:
Counsel:
Plaintiffs : Ms L E Rowley
Defendant : Ms J H Smith
Solicitors:
Plaintiffs : McLeod & Co
Defendant : State Crown Solicitor
Brewarrana Pty Ltd v Commissioner of Highways (1973) 32 LGRA 170
Corse v Robinson, unreported; FCt SCt of WA; Library No. 970669; 8 December 1997
Cretazzo v Lombardi (1975) 13 SASR 4
Hughes v WA Cricket Association (Inc) [1986] ATPR 40-748
Mok v Minister for Immigration Local Government and Ethnic Affairs (1993) 47 FCR 81
Re Elgindata (No.2) [1992] 1 WLR 1207
Spargo v Haden Engineering Pty Ltd (1993) 60 SASR 39
Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201
Westgold Resources NL v St George Bank Ltd, unreported; SCt of WA; Library No 980717; 9 December 1998
Case(s) also cited:
Bergman v Holroyd Municipal Council (1988) 66 LGRA 68
Brown Brothers (Marine) Holdings Pty Ltd v NSW Land & Housing Corporation (1991) 72 LGRA 50
Commonwealth v Milledge (1953) 90 CLR 157
Crisp & Gunn Co-operative Ltd (1963) 110 CLR 538
Dell Holdings Ltd v Toronto Area Transit Operating Authority (1995) 55 LCR 1
Harvey v Crawley Development Corporation [1957] 1 QB 485
Knowalow v Minister for Works [1961] WARW 40
Kontos v Roads & Traffic Authority (1992) 75 LGRA 218
Rosenbaum v The Minister (1965) 114 CLR 424
Wilson v Carter [1893] AC 638
(Page 3)
1 COMMISSIONER PRINGLE QC: On 15 November 1999 I published reasons for judgment, in which the major issues in the case were dealt with. Some issues required further consideration, and the questions of interest and costs needed to be addressed.
2 I should mention at the outset that I raised with counsel the question whether in the reasons for judgment I ought to have decided what the value of the subject land was to the plaintiffs before dealing with the question of special circumstances, explaining that I dealt with the alternative bases of compensation in what seemed to be the descending order with respect to amounts of compensation (cf T2258). Counsel for the defendant submitted, and I accept, that judgment should be entered for the plaintiffs on the footing most favourable to them (T2260).
3 On p 72 of the reasons for judgment I stated that the parties had agreed that the value of the plant and equipment in the tavern was $75,000. In fact it was the defendant's case that it had agreed that the value of the plant and equipment was $75,000 in situ, but that if the highest and best use of the subject land were to be held (as in the event I found) to have been as a development site the value of the plant and equipment was $32,206.30. Having overlooked that point, I shall reconsider this aspect of the case.
Value of the plant and equipment
4 After 15 November 1999 I was provided with a copy of Collier Jardine's valuation dated 29 March 1996 of the plant and equipment in the tavern. The valuation was prepared for the defendant, but a copy was provided to the plaintiffs' representatives before any agreement or consensus was reached as to the value of the plant and equipment. In their valuation Collier Jardine placed two different values on the plant and equipment; firstly a value of $74,940 in situ for the continued existing use of the subject land as a tavern, and secondly a value of $20,650 being an estimate of what would be realised on sale by auction of the plant and equipment. The plant and equipment was auctioned and the net amount realised was $32,206.30.
5 It was argued on behalf of the plaintiffs that the defendant is estopped from disputing the contention that the defendant had agreed that the value of the plant and equipment was $75,000 in all circumstances. On 29 June 1999 the defendant's response to the plaintiffs' statement of issues was filed and served. It embodied a statement that the value of the plant and equipment was $32,206.30 if the highest and best use of the subject
(Page 4)
- land were to be held to have been as a development site. The plaintiffs' case was closed on 5 July 1999. The hearing was completed on 29 July 1999 (subject to provision of further arguments in writing). No application has been made on behalf of the plaintiffs to adduce evidence as to the value of the plant and equipment.
6 Agreement or consensus was reached in correspondence as to Colliers Jardine's valuation of $75,000 (cf T2240-2246). Counsel for the plaintiffs said that there had been a misunderstanding (T2289). In my opinion, as the valuation of Colliers Jardine had been read and debated in the negotiations leading to agreement, the defendant cannot be held to have represented that the value of $75,000 would be applicable even if the highest and best use of the land was as a development site.
7 I find that the value of the plant and equipment was $32,206.30 in circumstances where the highest and best use of the subject land was redevelopment.
8 I would add that I have not overlooked the facts that the valuers and counsel were in agreement that compensation should be paid for the tavern building. Why that should be so did not emerge clearly from the evidence. Mr Christie and Mr McMahon seem to have had in mind possible incorporation of the tavern building into redevelopment of the site. In that event plant and equipment used for the tavern would presumably have been sold off.
Leasehold interest of Seapeak
9 It was contended on behalf of the plaintiffs in written submissions dated 6 December 1999 that the plaintiffs were entitled to be paid compensation for Seapeak's leasehold interest as well as for their own freehold estate in the subject land, and that I had erred in failing to make provision for the value of the leasehold interest. I allowed this point to be argued on 17 December 1999. (I declined to allow other aspects on which findings had been made in the reasons for judgment to be revisited).
10 I mentioned at p 6 of the reasons for judgment that the parties had agreed that the plaintiffs could include Seapeak's claims in their claims. On 17 December 1999 counsel agreed that the best evidence of the terms of the agreement was afforded by the amended pleadings filed pursuant to the order of Registrar Martin dated 23 July 1998.
(Page 5)
11 The relevant parts of pars 2 and 14 of the amended statement of claim filed on 31 July 1998 read as follows –
"2. The plaintiffs at all material times prior to 27 October 1995 were:
2.2 the proprietors of Seapeak Pty Ltd ACN 009 286 757 a company wholly owned by the plaintiffs which was the lessee of the land and the plaintiffs' trading vehicle in respect of the carrying on of a business of a tavern on the Land.
14. The plaintiffs claim an entitlement on their own behalf and on behalf of the compensible rights of Seapeak Pty Ltd which vested in them to compensation as follows:
(b) Disruption of business pursuant to par (aa)(ii) of s 63 of the Act comprising
(i) Goodwill $233,415
(ii) Plant and Equipment $80,000
(iii) Stock $37,500
(iv) Consequential losses (purchase
of alternative property) $40,000".
"Other than admitting the beneficial interest and rights held in Seapeak Pty Ltd …".
13 Those statements remain in the pleadings substantially as pleaded in 1998.
14 The plaintiffs have never pleaded that the leasehold estate had any particular value, nor have they claimed any amount as representing the value of the leasehold estate. No witness was asked to place a value on the leasehold estate. Counsel for the plaintiff explained (T2277, 2280) that no evidence was led as to the value of the leasehold estate because the rent was below market rent and the evidence would have had a detrimental effect on the value of the freehold estate.
(Page 6)
15 At pp 69 - 70 of the reasons for judgment I rejected the claim for loss of goodwill, which claim was pleaded and the subject of evidence. However, I did take goodwill into account in relation to value to the plaintiffs of the subject land and the business (p 76) and in assessing additional compensation to meet the special circumstances of the case (p 73).
16 I decline to award compensation in respect of the leasehold estate. Such a claim was not pleaded and was not supported by evidence. Moreover, on the pleadings, it is questionable whether it was open in this case for compensation to be awarded in respect of the leasehold estate as well as the freehold estate although in principle such claims are ordinarily open.
To sum up so far
17 I shall now review the figures in the reasons for judgment and the figures discussed above. In relation to the best result for the plaintiffs, there was a "slip" on my part in including in par 268 on p 76 of the reasons for judgment $75,000 for plant and equipment. Separate payment for the plant and equipment seems to me to be inconsistent with par 267 and also with par 263. When preparing the reasons for judgment I thought that compensation for the market value of the subject land, for the building, for plant and equipment and for additional compensation of $75,000 in the special circumstances of the case provided a higher total than compensation based on value of the subject land (and improvements) to the plaintiffs. That could have been so only if there was to be no separate compensation for plant and equipment. I shall allow counsel to see these reasons prior to the motion for judgment and am prepared to hear submissions on this point, to which par 31 of the defendant's submissions dated 10 December 1999 and a submission at T2266 are relevant. I shall assume in the meantime that the plaintiffs are entitled to the following amounts:
Market value of the land $720,000.00
Tavern building 85,500.00
Additional compensation 75,000.00
Plant and equipment 32,206.20
Stock 6,500.00
Removal expenses 3,030.00
(Page 7)
18 The plaintiffs should also recover the amounts of stamp duty and conveyancing costs (as to which see below). The plaintiffs should also be paid the sums of $173.78 and $2,089 referred to on p 72 of the reasons for judgment.
Stamp duty and conveyancing costs
19 It is common cause that stamp duty should be allowed at rates applicable in October 1995. The applicable amount seems to be $29,759. The point at issue is whether conveyancing fees should be allowed on the basis that a legal practitioner would have been engaged (as contended on behalf of the plaintiffs) or a settlement agent (as argued on behalf of the defendant). True it is that in acquiring the subject land the plaintiffs were represented by a settlement agent. However, this seems to me an instance where the doubt should be resolved in favour of the plaintiffs. The relevant amount seems to be $2,595; see p 46 of the plaintiffs' submissions dated 6 December 1999. The parties should endeavour to agree the amount of conveyancing costs prior to the motion for judgment.
Accountant's fees
20 The evidence is rather skimpy. The documentation is at pp 138 - 148 of vol 1 of the agreed bundle. Post-resumption accountancy fees (which is the period to which most of the accountancy fees relate) may be recoverable as part of the plaintiffs' taxed costs. I am not persuaded that reasons for recovery of the fees as compensation have been established by the evidence. Indeed, there is a lack of evidence about the actual work done and the connection between the incurring of all the fees and the taking of the subject land. Section 79C of the Evidence Act does not seem to be applicable.
Solatium
21 A solatium of 10 per centum will be payable in respect of all but the excepted items of $75,000, $173.78 and $2,089.
Interest
22 It is common cause that the plaintiffs served their claim on 12 February 1996 and that the ruling rate of interest on judgment debts under s 142 of the Supreme Court Act 1935, on 27 October 1995, was 8 per centum per annum. See s 63(e) of the LAPW Act. On 15 May 1996
(Page 8)
- the defendant made an advance payment of $710,000 plus $8,069.94 in respect of interest. So s 63(f)(i) also applies. Interest at 8 per centum per annum is payable on the full amount of the compensation from 12 February 1996 to 15 May 1996 and thereafter on the full amount of the compensation less the sum of $710,000 paid.
Costs
23 On p 60 of the plaintiffs' submissions dated 6 December 1999 the following appears –
"The Plaintiffs made an Order 24A offer on 27 October 1998 in the sum of $1,100,000 plus interest. The other condition contained in the offer as to costs is immaterial in the light of Order 24A Rule 10(2) of the Rules of the Supreme Court".
- The defendant's counsel quoted the terms of the offer which read –
"All claims under s63(a), (aa), (c) of the
Public Works Act $1,100,000
Legal and valuation costs $26,824
Interest at 8% per annum on $1,100,000 but taking into account and deducting the sum of $8,069.94 interest paid on 25 March 1996".
25 However, I am prepared to hear counsel further on this aspect on the motion for judgment. In what follows, I shall assume that indemnity costs will not be payable under O 24A r 10(4).
26 It was also argued on behalf of the plaintiffs that costs on an indemnity basis should be awarded on the basis of impropriety on the part of the defendant, and my findings and comments in pars 69, 138, 146,
(Page 9)
- 148, 149, 150, 218, 279 and 280 of the reasons for judgment were referred to. I have considered the authorities in par 66.1.9 of the Red Book and generally pars 66.1.5 to 66.1.10. Paragraphs 69 and 148 - 150 concerned dealings between Main Roads and other claimants. The documentation revealing what had happened was quite properly discovered. As to pars 138 and 218 Mr Richmond was frank about what had occurred, and he did not mislead Mr McMahon. Paragraph 279 reiterates some of the criticisms of Main Roads in its dealings with other claimants, and in relation to the impeding of Mr McMahon makes the point that that did not happen deliberately. Paragraph 280 is neutral.
27 I did not form the impression during the trial that the defendant was withholding documents or information with a view to concealing relevant facts, and some of the attacks on the defendant's conduct and those associated with it were not made out or were only partly made out.
28 On the whole I am not disposed to make an order for payment of costs by the defendant on an indemnity basis.
29 The plaintiffs were clearly substantially successful. However, the defendant contends that the plaintiffs should be awarded only half their costs, as they were unsuccessful in relation to significant issues and the raising of those issues resulted in the incurring of substantial costs of preparation and extended significantly the length of the trial.
30 The thrust of the argument for the plaintiffs resisting the making of an order apportioning costs was that such an order should be made only in exceptional circumstances, or only when the issues on which the successful party failed and which prolonged the hearing had been raised unreasonably. See Spargo v Haden Engineering Pty Ltd (1993) 60 SASR 39, 57-8; Re Elgindata (No.2) [1992] 1 WLR 1207, 1214; Mok v Minister for Immigration Local Government and Ethnic Affairs (1993) 47 FCR 81; Cretazzo v Lombardi (1975) 13 SASR 4, 12; Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201, 208 and Brewarrana Pty Ltd v Commissioner of Highways (1973) 32 LGRA 170, 206. It was also urged that valuers should not be discouraged from ventilating fully their views about the highest and best use of resumed land.
31 Counsel for the defendant directed my attention to Corse v Robinson, unreported; FCt SCt of WA; Library No. 970669; 8 December 1997 at 18 - 21; Westgold Resources NL v St George Bank Ltd, unreported; SCt of WA; Library No 980717; 9 December 1998 and
(Page 10)
- Hughes v WA Cricket Association (Inc) [1986] ATPR 40-748 at 48136 - 48137.
32 I have found the cases cited by both counsel helpful.
33 The action was initially listed for five days. It ran for 22 days, in four discrete groups of 5, 3, 9 and 5 days respectively. Mr McMahon, the plaintiffs' expert witness, started his evidence on 11 March 1999 (T371). Mr Jackson's evidence was interposed (T388-407). Mr McMahon's evidence in chief then continued (with some submissions from counsel from time to time and also the brief evidence of other witnesses between T744 and T763) up to T782 on 29 June 1999. Mr McMahon's evidence in chief stretched from the fourth to the ninth day of trial. On 29 June 1999, Mr McMahon completed his evidence in chief in writing: vol 2A of the trial bundle. He was cross-examined up to T1189 on 2 July 1999, the twelfth day of trial.
34 Both Mr McMahon and Mr Christie gave a substantial amount of evidence in writing and viva voce about hotels and taverns, their profitability and turnover and about capitalisation rates, and analysed the figures from the Claisebrook Tavern. (I shall refer to this as "the hotel evidence"). They obviously did a lot of preparatory work. Counsel and solicitors must also have done considerable work on that part of the case, on which not only the plaintiffs' largest basis of claim for value of the subject land but also for the value of goodwill of the tavern business depended.
35 As a consequence of the plaintiffs' reliance on the hotel evidence in relation to the front portion of the subject land, much effort and time was devoted to the hypothetical development of the back part of the subject land. (Compare par 126 of the reasons for judgment).
36 As will be seen in pars 108 - 113 of the reasons for judgment, in my opinion there was a fatal flaw in the plaintiffs' case relating to the hotel evidence. I am bound to say that reliance on the evidence about the Northbridge Hotel to establish assumptions as to what would have been the turnover of the Claisebrook tavern was unreasonable. It was never going to be sufficient to show merely what might possibly have happened.
37 As to comparable sales, Mr McMahon relied initially on too many transactions, in my view. During the trial both experts reduced the number of transactions each relied upon so that a trial which threatened to become of inordinate length and cost should be completed more expeditiously.
(Page 11)
38 I am of the firm view that it would be unjust to the defendant for the plaintiffs to be awarded all their costs. Indeed, this seems to me to be a proper case for apportionment of costs, as a convenient way of giving effect to the plaintiffs' entitlement to the general costs of the action, but requiring them to bear a substantial part (not the whole) of the costs incurred by both sides in respect of claims or issues upon which the plaintiffs failed. My approach does not depend on the mere fact that on some issues the plaintiffs failed. Rather, there seems to me to have been an overlapping of over-elaboration of expert evidence and reliance on an approach (the hotel evidence) which was flawed both aspects being directly related to the important claims and issues on which the plaintiffs failed (cf T2299-2301).
39 In my view a fair and just apportionment of costs would be an order that the defendant do pay three-quarters of the plaintiffs' costs, to be taxed. The apportionment will apply to the orders and certificates referred to below.
(a) There should be a certificate for two counsel. However, I do not think that the relevant determinations (see pars 66.0.3A and 4556 and 4557 of the Red Book) authorise the grant of a certificate permitting recovery of counsel's fees pertaining to Queen's Counsel to a practitioner who is not a Queen's Counsel. In any event, I am disinclined to create a precedent in this respect.
I have not overlooked the point made at T2318. However, I think Ms Rowley in fact acted as junior counsel.
(b) There should be a certificate for the cost of the transcript.
(c) To the extent the taxing officer considers reasonable, there should be allowed –
(i) the fees of Mr McMahon and Mr Dix;
(ii) remuneration for Mr McMahon's attendance at trial to assist and advise counsel during the evidence of Messrs Christie, Richmond and Stewart.
I do not think fees of a third expert should be allowed.
(d) There should be reasonable allowances for conferences with counsel, Mr McMahon and Mr Dix.
(e) The scale maximum for the statement of claim should be increased to $5,000, and for getting up should be increased to $100,000. What fees should actually be allowed is a matter for the taxing officer.
(Page 12)
40 The matter should be re-listed for hearing in Court (not in chambers) for the motion for judgment on a convenient date at 9.15am. If possible an agreed minute of the judgment should be provided. If agreement cannot be reached each party should provide a minute. In the meantime, these reasons should be released to the parties' solicitors.
41 I have noticed that the reasons for judgment require some minor corrections. The years in the seventh-last line on p 36 should be 1990 to 1992. In par 150 on p 47 the reference should be to Mrs, not Mr, Bellos. The word "was" should be added at the end of the fifth-last line on p 68.
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