The Owners of Habitat 74 Strata Plan 222 v Western Australian Planning Commission
[2004] WASC 23 (S)
THE OWNERS OF HABITAT 74 STRATA PLAN 222 -v- WESTERN AUSTRALIAN PLANNING COMMISSION & ORS [2004] WASC 23 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 23 (S) | |
| Case No: | PWA:2/2001 | 22 JANUARY & 27 FEBRUARY 2004 | |
| Coram: | EM HEENAN J | 27/02/04 | |
| 2/09/04 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Directions as to amount to be retained in fund in Court after interim distribution pending resolution of applicant's claim for costs | ||
| B | |||
| PDF Version |
| Parties: | THE OWNERS OF HABITAT 74 STRATA PLAN 222 WESTERN AUSTRALIAN PLANNING COMMISSION ANTHONY ARISTEI ROBERT BAKER JANET BAKER GRAEME BELTON DOROTHY BELTON BEVERLY JOY PASCOE FRANK EDWARD GEROVICH WENDY FRANCIS LITTLE BARRY COOK JOAN KABUS STELLA NEMETH |
Catchwords: | Real property Strata title Common property Compulsory acquisition Entitlement to compensation Costs Directions |
Legislation: | Nil |
Case References: | The Owners of Habitat 74 Strata Plan 222 v Western Australian Planning Commission & Ors [2004] WASC 23 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 2 SEPTEMBER 2004 FILE NO/S : PWA 2 of 2001 MATTER : A claim for compensation pursuant to s 249 of the Land Administration Act 1997 against the Western Australian Planning Commission BETWEEN : THE OWNERS OF HABITAT 74 STRATA PLAN 222
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
First Respondent
ANTHONY ARISTEI
ROBERT BAKER
JANET BAKER
GRAEME BELTON
DOROTHY BELTON
BEVERLY JOY PASCOE
FRANK EDWARD GEROVICH
WENDY FRANCIS LITTLE
BARRY COOK
(Page 2)
- JOAN KABUS
STELLA NEMETH
Second Respondents
Catchwords:
Real property - Strata title - Common property - Compulsory acquisition - Entitlement to compensation - Costs - Directions
Legislation:
Nil
Result:
Directions as to amount to be retained in fund in Court after interim distribution pending resolution of applicant's claim for costs
Category: B
Representation:
Counsel:
Applicant : Mr M Gregory
First Respondent : Mr C S Bydder
Second Respondents : Mrs L E Rowley
First-named Second Respondent : Mr B W Duckham
Solicitors:
Applicant : Minter Ellison
First Respondent : State Solicitor
Second Respondents : McLeods
First-named Second Respondent : B W Duckham & Co
(Page 3)
Case(s) referred to in judgment(s):
The Owners of Habitat 74 Strata Plan 222 v Western Australian Planning Commission & Ors [2004] WASC 23
Case(s) also cited:
Nil
(Page 4)
1 EM HEENAN J: This application for directions which has come before the court involves the working out of orders for costs which I made in these proceedings on 16 June 2004.
2 It is unnecessary for me on this occasion to repeat or summarise those orders other than to say that they included a provision that costs of a certain character, incurred by the applicant, should be paid out of the fund moneys constituted by the payment into court and accretions thereto by accruing interest; of costs of that character; that the order established a procedure for identifying the components and, in the absence of agreement between the parties, provided for them to be taxed.
3 The order also contemplated that there should be an early interim distribution, of the balance of the fund subject to the retention of a sufficient amount to secure the payment of costs which were properly payable from the fund to the various parties.
4 The application now before me concerns the amount which is to be retained in the fund in order to provide for the applicant's costs, following either agreement or taxation. There is considerable correspondence referred to in the affidavit of Ms Rowley, sworn 1 September 2004, showing a controversy between the second respondents and the applicant about the amount of costs and the applicant's alleged entitlement to various components of them.
5 In the result, the position has been reached - largely as a consequence of negotiation between the solicitors for the applicant and the solicitors for the majority of the second respondents - that the retention to provide for the applicant's costs should be in the range of $25,000 to $30,000. But, because agreement is not possible, the applicant seeks an order today that $35,000 should be set aside to provide for those costs, being the higher estimate plus an extra $5000 to cover the anticipated costs and expenses of a taxation of those costs.
6 In opposing the amount sought, the solicitors for the second respondents maintain their offer to allow $25,000 to be retained in the fund but contend that anything greater would be an overestimate of any proper allowance which the applicant could hope to recover on taxation and they point to a whole series of contentious matters which, no doubt, will be raised during any such taxation.
7 The resolution of this dispute is, in many respects, an attempt to forecast the probable result of the taxation, where these issues will be revisited and eventually decided by the taxing officer after a far more
(Page 5)
- thorough investigation than I can possibly conduct on this occasion. Nevertheless, it seems to me that the entitlement of the applicant to costs in these proceedings is, to a large extent, concessional because, in the events which have transpired, the applicant was never entitled to any portion of the moneys recovered or to speak for, or to represent, the second respondents, who are the persons truly entitled to the compensation moneys. Lest it be thought that that remark reflects adversely on the applicant, I hasten to add that the applicant's position was, at least to some extent, caused or contributed to by the actions of the first respondent in selecting it as the putative owner or person in possession of the resumed lands and so entitled to the payment of compensation. This is an error which seems to have been compounded by the enthusiasm subsequently developed by the applicant to maintain that position.
8 Be that as it may, the strict position at law, in accordance with my decision in this matter: The Owners of Habitat 74 Strata Plan 222 v Western Australian Planning Commission & Ors [2004] WASC 23, is that the applicant was never entitled to these compensation moneys. The orders which have been made in respect of costs are designed to ensure that the applicant obtains a fair reward for the value of work which it performed, without authority but, nevertheless, for the benefit of the second respondents, rather like - as I said in dialogue with counsel - the position of a claimant who is prepared to waive a tort and to take the benefit of advantages derived for him by a tortfeasor, who may have innocently trespassed upon or converted his property.
9 This being the case, I consider that the approach which I adopt should, if it is to be to the advantage of any of the parties, be of advantage to the second respondents, as they are persons truly entitled to the proceeds of the fund. For that reason, I will fix the amount to be retained in the fund at $25,000, appreciating that it is no more than a retention allowance, pending agreement upon or taxation of costs.
10 If the costs should tax out at more than that, then there will still be avenues for the applicant to pursue the recovery of these costs most probably out of the balance of the pending claim for compensation which is presently still being pursued. I appreciate that this involves a risk of some shortfall of costs for the applicant, but it seems to me that my risk of loss is better left with the applicant than with the second respondents, having regard to all features of this case.
(Page 6)
11 The order will be that the amount which should be retained in the fund to provide for anticipated costs of the applicant will be $25,000. However, that is not to be treated as indicative, or as any preliminary or other estimate, of the amount which may be eventually allowed on taxation.
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