Treyvaud v Transport for New South Wales; Jervis Bay Stockfeeds Pty Ltd v Transport for New South Wales

[2025] NSWLEC 61

Land and Environment Court

New South Wales

Medium Neutral Citation:

Treyvaud v Transport for New South Wales; Jervis Bay Stockfeeds Pty Ltd v Transport for New South Wales [2025] NSWLEC 61

Hearing dates:

11 June 2025

Date of orders:

17 June 2025

Decision date:

17 June 2025

Jurisdiction:

Class 3

Before:

Beasley J

Decision:

(1) The Motion filed in the JB Stockfeeds Proceedings (matter number 2023/00091290) is dismissed.

(2) The Applicant is to pay the Respondent’s costs of that motion on the ordinary basis.

(3) In relation to the Treyvaud Proceedings (matter number 2023/00091258):

(a) leave is granted to the Applicants to rely on the expert report of Owen Allsopp dated 8 May 2025;

(b) leave is granted for Owen Allsopp to confer and prepare a joint valuation report with the Respondent’s valuation expert in these proceedings.

(4) The Applicants are to pay the Respondent’s costs on the motion on the ordinary basis.

(5) Both proceedings are adjourned to 9:30am on 3 July 2025 before me for case management orders to be made. By 5pm 2 July 2025 the parties are to send to my Associate agreed orders, or their own set of proposed orders.

(6) Liberty for the parties to apply for further directions in both the Treyvaud and JB Stockfeeds Proceedings on 48 hours notice.

Catchwords:

NOTICE OF MOTION — Expert evidence — Whether leave should be granted pursuant to r 31.19 of the Uniform Civil Procedure Rules (2005) — Alleged “expert shopping” — Claim for privilege — Indemnity costs

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 59, 60

Evidence Act 1995(NSW) ss 119, 122

Land Acquisition (Just Terms Compensation) Act 1991(NSW) ss 55, 59, 66

Uniform Civil Procedure Rules 2005 Pt 31, Div 2, rr 31.17, 31.19

Cases Cited:

Australian Securities and Investments Commission (ASIC) v Rich [2004] NSWSC 934

Campbelltown-Minto Merchants Association Inc v Campbelltown City Council [2009] NSWLEC 70

D v S [2009] QSC 446

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46

ROI Properties Pty Ltd v Council of the City of Sydney [2010] NSWLEC 22

The Estate of Genevieve Bryan [2021] NSWSC 567

The Owners – Strata Plan No 76907 v Sydney Metro [2025] NSWLEC 6

Category:

Procedural rulings

Parties:

Darren James Treyvaud (First Applicant, 2023/91258)
Kim Maree Treyvaud (Second Applicant, 2023/91258)
Jervis Bay Stockfeeds Pty Ltd (Applicant, 2023/91290)
Transport for New South Wales (Respondent)

Representation:

Counsel:
A Hannam (instructed by T Sattler) (Applicant)
M Astill (instructed by P Ibbotson, A Cowley, A Wu) (Respondent)

Solicitors:
Sattler & Associates Pty Ltd (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2023/00091258 and 2023/00091290

Publication restriction:

Nil

JUDGMENT

1. Before the Court are two motions seeking identical orders in related proceedings. Those orders relevantly are:

“(1) That the Court grants Leave to the applicant to rely upon the expert report of Owen Allsopp, Certified Practicing Valuer… updated 8 May 2025.

(2) That the Court grants Leave for Owen Allsopp… [to] act on behalf of the applicants and engage, confer and prepare a Joint Report valuation [sic] in preparation for the Hearing of this matter.”

2. Until 29 July 2022 (Acquisition Date), the Applicants in proceedings 2023/0091258 (Treyvauds) were the registered proprietors of Lots 1, 2 and 3 of DP 244495, and the “beneficial owners” of Lot 2, DP 557598. Together these Lots were known as 5933 Princes Highway, Falls Creek (Parent Parcel). I will refer to these proceedings as the “Treyvaud Proceedings”.

3. On the Acquisition Date, the Respondent acquired Lots 24 and 25 of DP 1275933 (Acquired Land), being part of the Parent Parcel. That acquisition is said to be for the purposes of the “construction and operation of the upgrade to the intersection between Jervis Bay Road and Princes Highway”. [1]

   1. Amended Points of Claim at [6].

4. The Treyvauds have brought their proceedings under s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act) as the dispossessed landowners of the Acquired Land, objecting to the amount of compensation determined to be payable to them for the compulsory acquisition.

5. The Applicant in proceedings 2023/0091290, Jervis Bay Stockfeeds Pty Ltd (JB Stockfeeds), was at the Acquisition Date a lessee and occupier of Lots 1, 2 and 3 of DP 244495, and a lessee and occupier (under a separate lease) of Lot 2 DP 557598. It occupied the Parent Parcel for purposes that included that of a pet and rural supply business and fuel retail business, and was also the trustee of the Treyvaud Family Trust. It also brings its proceedings under s 66 of the Just Terms Act objecting to the determination of compensation payable to it as a dispossessed lessee (although the nature of its claims is discussed further below). I will refer to these proceedings as the “JB Stockfeeds Proceedings”.

6. At the hearing of the Notices of Motion, the Applicants in both proceedings were represented by Mr A Hannam of Counsel. The Respondent was represented by Mr M Astill of Counsel. The parties provided the Court with written submissions to assist the determination of the motions.

7. As the motions concern related proceedings, I directed that evidence in one motion be evidence in the other.

Description of Parent Parcel and Acquired Land

8. As a number of different land lots are the subject of these proceedings, it is helpful to describe them in more detail. As mentioned above, the Acquired Land consists of Lots 24 and 25 of DP 1275933, located east of the current Princes Highway. Lots 17 and 18 in DP 1275933 are the Residue Land east of the Acquired Land that remain in the freehold ownership of the Applicants as joint tenants. Prior to the acquisition, these lots (with the Acquired Land) comprised Lots 2 and 3 in DP 244495, which are referred to as the Eastern Land.

Figure 1: Diagram of relevant Lots [2]

2. Respondent’s Written Submissions (RWS) at [5].

9. The Eastern Land was leased to JB Stockfeeds for a term of 5 years from 9 July 2019 to 8 July 2024, with an option to renew for another 5 years. On 7 March 2022, JB Stockfeeds purported to sublet the land to the Applicants as partners in As Good As It Gets, with a sublease on similar terms.

10. Lots 1 in DP 244495 and Lot 2 in DP 557598 are located west of the existing highway. At all material times, both the Treyvaud Applicants have been the owners of Lot 1, and Mr Treyvaud has been the owner of Lot 2. Lot 2 was also leased by Mr Treyvaud to JB Stockfeeds for a term of 5 years from 7 March 2022 to 6 March 2027, with an option to renew for another 5 years, and JB Stockfeeds, on 7 March 2022 purported to sublet that land to As Good As It Gets for the same term. These lots are referred to as the Western Lands.

Applicants’ Evidence

11. The Applicants relied on affidavits of Tony Sattler, dated 12 May 2025 (filed in the Treyvaud Proceedings – the First Sattler Affidavit), 16 May 2025 (filed in the JB Stockfeeds Proceedings – the Second Sattler Affidavit), 30 May 2025 (the Third Sattler Affidavit), and 5 June 2025 (the Fourth Sattler Affidavit). Mr Sattler is the solicitor for the Applicants, and in his affidavits he seeks to explain the reasons why the orders in the Notices of Motion are sought.

12. In the Applicants’ Written Submissions in chief (AWS) at [9], I am informed that Mr Sattler had instructed Mr Staniforth, another valuer, to prepare a valuation report of the Parent Parcel on 27 September 2024, following which Mr Staniforth produced two reports which were filed on 1 October 2024 (Staniforth Reports). In the First Sattler Affidavit he attests to the following:

1. Mr Allsopp prepared a valuation report in relation to the market value of the Acquired Land dated 9 June 2022;

2. Mr Allsopp has “republished his valuation report”, which is now dated 8 May 2025 (Allsopp Report), which is Annexure A to the First Sattler Affidavit; and

3. the Applicants now wish to rely on the Allsopp Report in lieu of the Staniforth Reports.

13. Mr Sattler proceeds in his First Affidavit to attest to the fact that in his view, Mr Staniforth did not value the Acquired Land based on its highest and best use. To do this, Mr Sattler asserts, involves giving “consideration of the land on the west side of the Princes Highway [the Western Lands] as benefitting from existing use rights for the land uses of service station and retail shop”. Contrary to the approach of Mr Staniforth, Mr Allsopp has included “sales evidence relating to retail and light industry sites and also rural lifestyle lands” as part of his analysis for reaching his determination of market value. Mr Staniforth however is said to have reached his determination of market value by “primarily focus[ing] on the value of the subject lands as rural lifestyle lots”. [3]

    3. See the First Sattler Affidavit at [9]-[10].

14. What I take from all of this is that the assertion is made that Mr Staniforth has adopted an approach to his market value determination which is not based on the Acquired Land’s highest and best use, as distinct from the asserted better approach of Mr Allsopp.

15. The Second Sattler Affidavit in the main merely seeks to rely on the First Sattler Affidavit for the purposes of the JB Stockfeeds Proceedings. In the Third Sattler Affidavit, he attests to the following:

1. a “strained relationship has developed between the applicants and Mr Staniforth”; [4]

2. Mr Staniforth was instructed not to attend the adjourned s 34 conciliation conference (although it appears he did attend on the first of the four separate days of that conference);

3. that “the Applicants had lost confidence in Mr Staniforth and did not wish for him to be advocating on their behalf”. [5] I pause to indicate that I interpreted the word “advocating” to be a reference to a desire by the Applicants to no longer engage Mr Staniforth;

4. Mr Staniforth has two outstanding tax invoices and as a consequence “he was not minded to attend the section 34 conciliation conference in any event or undertake any further work for the applicants” until he was paid; [6] and

5. a request has been made to the Respondent’s solicitors for payment of Mr Staniforth’s invoices. [7]

   4. Third Sattler Affidavit at [4].

   5. Third Sattler Affidavit at [6].

   6. Third Sattler Affidavit at [6].

   7. Third Sattler Affidavit at [7]-[8].

16. In the Fourth Sattler Affidavit, other than addressing an issue concerning an objection to part of the Respondent’s evidence on the grounds of legal professional privilege (dealt with below), he states that he made three phone calls between 19 and 30 May 2025 to Mr Staniforth, but has been unable to reach him on the phone, nor has he been able to obtain a reply to an email he has sent asking Mr Staniforth whether he was prepared to continue as the Applicants’ expert valuer. [8]

    8. Fourth Sattler Affidavit at [12].

17. Mr Hannam also read an affidavit of Darren James Treyvaud (Treyvaud Affidavit) dated 5 June 2025, in which Mr Treyvaud (the First Applicant in the Treyvaud Proceedings) attests to the following matters:

1. Mr Allsopp was initially engaged by the Applicants’ first solicitors, Stacks Law Firm;

2. as a result of criticism made of Mr Allsopp’s valuation report, a second opinion was sought from Mr David Newhouse, solicitor, who gave certain advice, and then recommended another valuer (Mr Kent Wood);

3. Mr Newhouse required payment of $40,000 into his trust account which the Applicants were unable to pay, resulting in the Applicants instructing a new solicitor (Flo Mitchell). Ms Mitchell instructed a further valuer, Mr Scott Sharman;

4. Ms Mitchell required $200,000 to be paid into her trust account by the Applicants, which they were unable to pay. By this time, both Mr Newhouse and Stacks Law Firm had started legal action against the Applicants in relation to unpaid legal fees. Ultimately, in July 2024, the Applicants engaged their current solicitor Mr Sattler;

5. Mr Sattler attempted to engage various valuers (including Mr Wood again), but it appears he had no success. At this time, Mr Staniforth was instructed;

6. for reasons that cannot be explained, the Applicants thought they had reached a settlement with the Respondent at the 10 December 2024 s 34 conciliation conference (which Mr Staniforth attended as their valuer). Although also not able to provide me with any details, Mr Astill told me in address that the Respondent also thought that a settlement had been reached at the s 34 conciliation conference. For unknown reasons, settlement however did not crystallise;

7. at a date shortly prior to the 10 December 2024 s 34 conciliation conference (which was adjourned to 23 January 2025, 13 February 2025, 3 March 2025, and 14 April 2025), the First Applicant (other attendees are unknown) had a Teams meeting with Mr Staniforth during which his valuation report was discussed, including the issue of “existing use rights”, and an offer that had been made to purchase the Western Lands. The result of the Teams meeting was that the First Applicant lost confidence in Mr Staniforth as an expert valuer, and did not wish to continue to engage him; and

8. since the s 34 conciliation conference terminated (on 14 April 2025), contracts have been exchanged for the sale of the Western Lands, which in the Applicants’ view supports the valuation approach taken by Mr Allsopp in his report.

Respondent’s Evidence

18. The Respondent relies on an affidavit of Alessandro Stefano Cowley dated 27 May 2025 (Cowley Affidavit). Mr Cowley is the solicitor for the Respondent with carriage of these proceedings. In his affidavit, he provides a chronological history of the proceedings. Set out below is a summary of the relevant aspects of his affidavit, together with other relevant aspects of the history of the proceedings from other sources:   

1. the Applicants initially retained Mr Digby Dunn of Stacks Law Firm, who instructed Mr Allsopp on 21 May 2021 to prepare a valuation report;

2. on 29 July 2022, as outlined at [3] above, the Respondent acquired Lots 24 and 25 of DP 1275933 by compulsory process;

3. on 20 March 2023, the Applicants commenced the Class 3 proceedings in this Court objecting to the amount of compensation. At this time, Mr Newhouse was the solicitor acting for the Applicants;

4. on 8 May 2023, Mr Wood of K.D Wood Valuations gave preliminary valuation advice to Mr Newhouse for the Applicants;

5. on 16 May 2023, Mr Newhouse withdrew his services. The Applicant cited issues with legal costs as the reason: see [17(c)] above;

6. on 5 June 2023, Ms Mitchell of FM Legal was appointed as the Applicants’ solicitor;

7. prior to engaging Mr Staniforth, on 26 June 2023, Moore J granted leave to the Applicants to rely on the evidence of Mr Sharman, a valuation expert; on 18 October 2023, Mr Sharman attended the s 34 conciliation conference that had been set down for both matters. That conference was terminated;

8. the Applicants claim that Mr Wood had refused to continue acting for them once Mr Newhouse (who had instructed Mr Wood) was gone. [9] However, the Respondent contends that Mr Wood was dismissed as the Applicants were dissatisfied with his valuation figure; [10]

   9. Treyvaud Affidavit at [15] and [18].

   10. Cowley Affidavit at [53]-[56].

9. on 9 July 2024, Ms Mitchell withdrew her services. The Applicants state that it was also over issues with legal costs: see [17(d)] above. Two days later, Tony Sattler of Sattler & Associates was appointed solicitor;

10. on 30 July 2024, the Court granted the Applicants leave to adduce valuation evidence from Mr Staniforth, and ordered that he prepare a joint report with the Respondent’s valuation expert, Mr Peter Adlington;

11. through a subpoena process, the Respondent obtained a letter from Mr Sharman, who up to that point had been the expert valuer, dated 7 May 2025, to the solicitor on record for the Respondent in which he outlines his involvement with the Applicants:

“By way of context, I remained active in the matter until the end of 2023. From early 2024, I became increasingly concerned about outstanding fees, and most of the correspondence during that period relates to this issue.

I was formally terminated from the matter in mid-April 2024 … My recollection is that Flo Mitchell called to advise that the landholder no longer wished to engage my services. I have not received written confirmation of my termination. I do not recall the specific reasons given, but understand it related to dissatisfaction with the compensation figure I had assessed”;

12. the Applicants have stated that “Mr Sharman removed himself for his own reasons”; [11]

    11. Treyvaud Affidavit at [20].

13. Mr Staniforth’s valuation reports were served on 1 October 2024 (which incidentally annexed planning and traffic expert reports for which leave to rely on had not been granted by the Court, but subsequently was);

14. on 12 November 2024, the Applicants served an updated valuation report of Mr Staniforth for which the Court granted leave to the Applicants to rely upon in both proceedings;

15. a further s 34 conciliation conference commenced on 10 December 2024, which Mr Staniforth and Mr Adlington attended. After various adjourned dates, the s 34 conference was terminated on 14 April 2025;

16. at a directions hearing before Registrar Froh on 29 April 2025, Counsel for the Applicants indicated that the Applicants proposed to change their valuation expert because Mr Staniforth had “indicated he no longer wishes to be involved in the matter”; and

17. Mr Cowley had a phone conversation with Mr Staniforth on 6 May 2025 in relation to a subpoena the Respondent’s solicitor had served upon him. Mr Cowley’s file note of that conversation is in the following terms:

“I explained to him [Mr Staniforth] that Mr Treyvaud was proposing to switch valuers and we needed to understand why. He said that’s the first he heard of him no longer being involved. He said it’s probably because Mr Treyvaud was unhappy with the advice / opinion given by him. He said that Mr Treyvaud had his own views about the compensation and was unwilling to listen. I told him that the reason given to us by the Treyvaud’s legal team was that he was unwilling to proceed as an expert in the matter. Mr Staniforth said this was not the case”. [12]

12. Cowley Affidavit at [44].

Claim for Privilege: Objection to Part of the Cowley Affidavit

19. When the Cowley Affidavit was read, objection was taken by Mr Hannam to [54] of the Affidavit, which set out the text of an email of 15 October 2024 from the Treyvaud Applicants to Mr Sattler (over which the Applicants claim legal and professional privilege). The email was copied to Mr Staniforth, and was produced to the Court by him in response to a subpoena served on him by the Respondent’s solicitors. The email forms Tab 20 of Exhibit AC-1 to the Cowley Affidavit (Court Book p 543), and is in the following form:

“Tony this is what I want to discuss in a teams meeting

I was very clear from the start im looking just to match the VG s valuation

I was very clear I had other valuations and asked im [sic] to stop if the number where not right as I have other valuations emails sent on the 6^th month how do we get here after 4 months

18.06.24

Hi Mitch thanks for the talk

The herron white my first valuation was claiming 2 million Flo said it was unreasonable, but that valuation was 1million and fifty thousand

But flo’s valuer had my land valued at less than the VG I couldn’t except [sic] that

So don’t be fixed on his number if you can do better than flo’s valuer that’s great I truly believe if you set your valuation correctly the matter will settle TNSW will have to except [sic] the lands are connected.

Sun 23/06/2024 10:32AM

Hi Mitch

As you know the court case is a appeal against the VG valuation Sun 23/06/2024 10:32AM

Are we on track to match even better increased value above the VG value for all 3 lots 2,315,000 plus shop

While I agree lot 1 2 and 3 should be valued together

Lot 1 does have a higher value as it can be used in conjunction with the adjoining business Every valuer has agreed

Put it this way if TNSW was to take lot 1 and not the other side i would claim lot 1 more valuable then the 2 lots across the road

With the shop highest and best use can be as is but include fuel sales

Thanks

Darren and Kim Treyvaud”

20. Mr Astill conceded that the email is a confidential communication between the Applicants and their solicitor which ordinarily could not be adduced in evidence if objection was taken: s 119(a) Evidence Act 1995 (NSW) (Evidence Act). However, the submission was made that there had been a waiver of privilege. For the following reasons, I agree.

21. In an email exchange between Mr Sattler and Mr Cowley of 15 May 2025, Mr Sattler agreed that a “general access” order should be granted to the parties once the subpoena material was produced to the Court. No mention was made of any claim or potential claim for privilege in respect to any documents at the time. [13] However, once the documents produced by Mr Staniforth were inspected by him (and the Respondent’s solicitors), Mr Sattler sought to claim privilege over the email objected to. [14]

    13. Tab 15 to Exhibit AC-1; Court Book p 536.

    14. Emails Sattler to Cowley 27 May 2025 and 4 June 2025, Annexure A to the Fourth Sattler Affidavit.

22. For the purposes of his objection, Mr Hannam relied on s 122 of the Evidence Act (and in particular subsections 122(3)(a), (4) and (5)(a)(iii)) which are relevantly in the following terms:

122 Loss of client legal privilege: consent and related matters

(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.

(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.

(3) Without limiting subsection (2), a client or party is taken to have so acted if—

(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or

(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.

(4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.

(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because—

(a) the substance of the evidence has been disclosed—

(i) in the course of making a confidential communication or preparing a confidential document, or

(ii) as a result of duress or deception, or

(iii) under compulsion of law, or

(iv) if the client or party is a body established by, or a person holding an office under, an Australian law—to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held, or

(b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or

(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.

23. As I understood Mr Hannam’s submissions, it was alternatively based on the following:

1. the email had not been knowingly or voluntarily disclosed, as the Applicants had not consented to waiver, and Mr Sattler had not intended to waive privilege (s 122(3)(a));

2. Mr Sattler was not authorised by the Applicants to waive privilege (s 122(4)); and

3. the email was produced under compulsion of law (s 122(5)(iii)).

24. I do not see how any of these submissions help the Applicants in their objection to the email. This is not a case where through a mistake or inadvertence, documents were provided to a party in circumstances where there was an intent to claim privilege over them: see Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 (Expense Reduction). Instead, Mr Sattler agreed to allow the Respondent’s solicitors to inspect all of the material produced by Mr Staniforth without raising any claim for privilege, or giving any consideration to doing so. That he misunderstood the process by which the documents produced on a subpoena would be made available for inspection, and sought to claim privilege later, does not in my view alter the fact that the conduct here in relation to the documents produced by Mr Staniforth is “plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect”: Expense Reduction at [30] per French CJ, Kiefel, Bell, Gageler and Keane JJ (see also Australian Securities and Investments Commission (ASIC) v Rich [2004] NSWSC 934).

25. Accordingly, the claim for privilege cannot be maintained.

General Principles Relating to the Motions

26. Rules relating to expert evidence are provided for in Div 2 of Pt 31 of the Uniform Civil Procedure Rules 2005 (UCPR). Rule 31.17 relevantly provides:

31.17   Main purposes of Division

The main purposes of this Division are as follows—

(a)  to ensure that the court has control over the giving of expert evidence,

(b)  to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings,

(c)  to avoid unnecessary costs associated with parties to proceedings retaining different experts,

(d)  if it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a single expert engaged by the parties or appointed by the court,

(e)  if it is necessary to do so to ensure a fair trial of proceedings, to allow for more than one expert (but no more than are necessary) to give evidence on an issue in the proceedings,

(f)  to declare the duty of an expert witness in relation to the court and the parties to proceedings.

27. Rule 31.19 relevantly provides as follows:

31.19 Parties to seek directions before calling expert witnesses

(1) Any party—

(a) intending to adduce expert evidence at trial, or

(b) to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial,

must promptly seek directions from the court in that regard.

(2) Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore.

(3) Unless the court otherwise orders, expert evidence may not be adduced at trial—

(a) unless directions have been sought in accordance with this rule, and

(b) if any such directions have been given by the court, otherwise than in accordance with those directions.

(4) This rule does not apply to proceedings with respect to a professional negligence claim.

28. Of relevance also to the orders sought in the motions are the “Guiding Principles” set out in sections 56 to 60 of the Civil Procedure Act 2005 (NSW) (CPA), in particular the following provisions:

56 Overriding purpose

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

…

57 Objects of case management

(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects—

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

58   Court to follow dictates of justice

(1)  In deciding—

(a)  whether to make any order or direction for the management of proceedings, including—

…

(iii)  any other order of a procedural nature, and

…

(b)  the terms in which any such order or direction is to be made,

the court must seek to act in accordance with the dictates of justice.

(2)  For the purpose of determining what are the dictates of justice in a particular case, the court—

(a) must have regard to the provisions of sections 56 and 57, and

(b)  may have regard to the following matters to the extent to which it considers them relevant—

(i)  the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii)  the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

…

(vi)  the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

…

59   Elimination of delay

In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial.

60   Proportionality of costs

In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.

Parties Submissions

Applicants’ Submissions

29. Although the Applicants rely on a number of the provisions of sections 56 to 60 of the CPA referred to above, the heart of their claim is that they would suffer a substantial degree of injustice if the orders sought in the motions are not made. The submission is grounded in the differences between the valuation approach of Mr Allsopp, and that of Mr Staniforth. As alluded to above, in essence it would seem that Mr Staniforth has largely expressed an opinion in relation to the compensation owing to the Applicants as being based on s 55(f) of the Just Terms Act which relevantly provides:

55   Relevant matters to be considered in determining amount of compensation

In determining the amount of compensation to which a person is entitled, regard must be had to the following matters only (as assessed in accordance with this Division)—

…

(f)  any increase or decrease in the value of any other land of the person at the date of acquisition which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired.

30. Further, Mr Staniforth’s assessment of market value (s 55(a) Just Terms Act) was based primarily on the Parent Parcel’s RU2 Rural Landscape zoning. By contrast, Mr Allsopp (whose report is Annexure A to the First Sattler Affidavit; Court Book pp 13-398) for the purposes of his valuation opinion has noted that Lot 2 of DP 557598 “enjoys continuing use rights including for the purposes of a general store and service station”. [15] In his report Mr Allsopp has expressed the opinion that the market value of the Parent Parcel prior to the acquisition of the Acquired Land was $4,623,000 (before valuation), with an “after value” of the Residue Land being $3,700,000 with the market value of the Acquired Land therefore being $923,000. In his report, Mr Allsopp notes that “the Lot 2 (west) property has existing use rights dating back decades”, and states that:

“Those rights include but are not limited to, general store, pet and animal food store and stall, service station, car sales, workshop, signage’s, dwelling, approval to operate a sewage management facility, use of shed in conjunction with Jervis Bay Stock Feeds”. [16]

15. Applicants’ Outline of Submissions at [23](i).

16. Annexure A to the First Sattler Affidavit p 14; Court Book p 26.

31. In determining his “before” valuation of the Parent Parcel, Mr Allsopp also claimed:

“The ‘before’ value of the property is determined considering its highest and best use being consistent with the zoning objectives under the LEP and acknowledging that one title has existing use rights”. [17]

17. Annexure A to the First Sattler Affidavit p 64; Court Book p 76.

32. Ultimately, the Applicants submit that this is not a case of “expert shopping”. In contrast, they seek leave to rely on a valuation opinion they say has been prepared on a correct basis rather than a valuation opinion they say has been determined without giving proper consideration to the highest and best use of the relevant land. Further, reliance is also placed on what would appear to be a breakdown in the relationship between the Applicants and Mr Staniforth, that seems to be founded on two matters: first, the non-payment of Mr Staniforth’s invoices; and secondly, the discussion at the Teams conference between the First Applicant and Mr Staniforth. To these matters can be added the confidence the Applicants now have in the Allsopp report as a result of the potential sale of the Western Lands, referred to above at [17(g)].

Respondent’s Submissions

33. The Respondent submits that what the Applicants are seeking from the Court is a “clear instance of expert shopping”. This, it submits, should not be countenanced, particularly given that Mr Staniforth and not Mr Allsopp participated at the s 34 conciliation conferences on the Applicants’ behalf.

34. The Respondent placed particular reliance on a number of decisions where parties had sought leave from the Court to rely on additional expert evidence, in particular The Estate of Genevieve Bryan [2021] NSWSC 567 (Estate of Bryan); D v S [2009] QSC 446; and Campbelltown-Minto Merchants Association Inc v Campbelltown City Council [2009] NSWLEC 70.

35. However, as Mr Hannam noted in his submissions seeking to distinguish these authorities, common to each of these cases is that the Applicant for leave was seeking to rely on further expert evidence in circumstances where they had previously agreed to there being a parties single expert for the determination of an expert issue. That is different to the applications here, where the order sought is for the replacement of one expert valuer for reliance on a different expert valuer. Of general relevance however are the observations of Hallen J in Estate of Bryan, where his Honour said:

“…it may be said that Court will be faced … with the clear task of balancing the interests of the parties, taking into account not only the overriding objective referred to in s 56 of the Civil Procedure Act, but also the interests of justice generally in seeing that cases are decided expeditiously, at proportionate cost and without undue inconvenience to other parties. All relevant circumstances should be taken into account, and a competing expert opinion is one such circumstance. The Court must have its eye on the overall justice to both parties. It is to that issue the existence of a competing expert opinion might be, principally, relevant”: Estate of Bryan at [73].

36. Mr Astill submits in his written submissions that were I to grant the orders sought, “the result would be a chilling effect on expert candour”. [18] He submits that the mere dissatisfaction the Applicants have with Mr Staniforth is not a proper ground for the substitution orders to be made, and doing so would “signal that litigants may “shop” for valuations until the numbers align with their commercial ambitions”, a “practice [that] would destabilise the administration of justice in this jurisdiction”. [19] It would cause experts to “feel subtle pressure, consciously or otherwise, to temper their conclusions” and “would risk degrading the impartiality and quality of expert evidence placed before it”. [20]

    18. RWS at [40].

    19. RWS at [39].

    20. RWS at [40].

37. Mr Astill also submitted that the granting of the orders sought by the Applicants would “subvert the s 34 conciliation process”. I took him to mean that Mr Staniforth had participated in at least part of the s 34 conciliation conferences, and that it should be inferred that he played a good faith role in attempting to resolve the dispute between the parties. That, it was submitted, would now be rendered nugatory if the Applicants are permitted to rely on a new expert. Some reliance was placed on Justice Pain’s decision in ROI Properties Pty Ltd v Council of the City of Sydney [2010] NSWLEC 22 (ROI Properties), however it seems to me that that case is addressing the different issue of where one party had not brought along to a conciliation conference any of their relevant experts, and thus the submission was made by the other party that it should be paid its costs that were thrown away for the failed conciliation conferences. For reasons expanded on shortly below, I am not convinced that there is a proper analogy between the circumstances of ROI Properties and the present proceedings.

Resolution

Treyvaud Proceedings Motion

38. Having considered the authorities referred to by the parties, and the relevant statutory provisions set out above, in my view the principal issues that need to be considered to resolve these two motions are:

1. what are the reasons behind the order sought to rely on Mr Allsopp as their expert valuer rather than Mr Staniforth? In particular, is what is sought “expert shopping”, or is there a legitimate reason or reasons to seek the change of experts?

2. Will granting the orders defeat the overriding purpose of ensuring a “just, quick and cheap resolution” of the real issues of the proceedings? More specifically, would granting the orders cause a significant delay and add significantly to the costs of the proceedings?

3. Will granting the orders sought subvert the obligations of the Expert Witness Code, the case management orders previously made in these proceedings, and the s 34 conciliation conference process that has taken place?

4. With consideration to all of the above, is it in the interest of justice and the just determination of the proceedings for the orders sought to be granted?

39. Dealing with each of these issues, in my view, first, it is not accurate to describe the orders sought as a “clear instance of expert shopping”. While what is sought is far from a gold standard example of case management and compliance with court orders by the Applicants, this is not a case of, for example, a dispossessed landowner seeking to replace a valuer who has assessed a market value of land on the basis of $90 per square metre, with a valuer who, using the same methodology, assesses market value at $100 per square metre. That might be an example of “expert shopping”. However, the unchallenged evidence here is that:

1. the relationship between the Applicants and Mr Staniforth appears to have presently broken down. This seems in part because of a lack of confidence by the Applicants in Mr Staniforth’s approach to his determination of market value and compensation in his report (of which I of course make no finding or judgment other than as to the fact of the Applicants unchallenged assertion of loss of confidence), and in part because of unpaid fees;

1. Mr Staniforth is not currently communicating with the Applicants’ solicitor – although this recent conduct is at odds with what he said to Mr Cowley during a phone conversation on 6 May 2025: see [18(q)] above. There is conflicting but unchallenged evidence about Mr Staniforth’s willingness to be involved in this matter as the Applicants’ expert valuer. I accept the evidence of Mr Cowley at [44] of his Affidavit, but I accept too the evidence of Mr Sattler in his Third and Fourth Affidavits. I find in the circumstances that Mr Staniforth (who has not given evidence before me or been heard and so no criticism is made of him) is currently at least proving difficult to be contacted by the Applicants’ solicitor;

2. Mr Allsopp has adopted as relevant to his determination of market value of the land matters (existing use rights) that Mr Staniforth has not. This is of course merely one matter to consider, and is bound up with the complexity of determining market value here, which, while probably not the most complex valuation exercise, clearly does have some level of complexity beyond the straightforward.

40. Is it in the interests of justice for the Applicants to be required to rely on Mr Staniforth when they have, for reasons relating to his approach to assessing compensation – as distinct from his final market value sum – lost confidence in him, and when he is apparently refusing to communicate with their solicitor, or alternatively cannot be contacted? I think not, particularly when these matters are also added to the consideration:

1. the Allsopp Report has not suddenly come out of the blue. The Respondent has had it for some time;

2. the matter has not yet been listed for hearing, and no orders have yet been made for joint conferencing involving Mr Staniforth or the preparation of joint reports. These matters are by no means determinative, but the Respondent’s valuer has not yet wasted any time on joint conferencing with Mr Staniforth;

3. there might be some additional costs and time wasted if the orders are granted, but they should not cause a significant delay or significant extra costs. Both of these proceedings require further case management orders.

41. In short, for the reasons outlined above, in my view it would not be in the interests of justice in the Treyvaud Proceedings to deprive the Applicants from relying on the expert opinion of Mr Allsopp, and to require them to rely on the opinion of an expert who they (and their solicitor) are, at least currently, unable to communicate with. That might be a recipe for even further disruption closer to the hearing, and for the purposes of joint conferencing between the valuation experts.

42. In deciding to grant the orders sought in the Treyvaud Proceedings, I am conscious of the very strong submissions made by Mr Astill cautioning me not to do so, particularly in his written submissions: see [36] above. It is certainly not my intention to “destabilise the administration of justice in this jurisdiction” by granting the Applicants the leave they seek. Nothing in this judgment should be regarded as an endorsement of expert shopping. Rather, on the facts before me, which include unchallenged evidence of what the Applicants consider to be an approach to the valuation exercise by their current valuer that has failed to consider a relevant matter, and the fact that there is evidence of a relationship breakdown between Mr Sattler and the Applicants on the one hand, and Mr Staniforth on the other, I consider it is in the interests of justice to grant the leave sought. I do not see how this will have any impact on experts before this Court, or on their resolve to fulfill the obligations they have under the Expert Witness Code of Conduct.

43. Finally, I have considered the contents of the email the subject of the claim for privilege: see [19] above. Mr Astill submits it is evidence of the Applicants’ willingness to expert “shop”. [21] I am not sure it is. The second sentence (“I was very clear from the start…”) does not make much sense. The reference to “other valuations” in the third line is probably a reference to the valuers referred to above at [17(a)-(e)], but that is not absolutely clear. The words “asked him to stop if the number where [sic] not right” might be a reference to telling a valuer to stop work if a particular determination of value was not reached, but that is speculation. Whatever it all means, in my view this email does not fundamentally undermine the findings I have made based on the totality of the evidence before me in the affidavits.

    21. RWS at [27].

44. I am inclined then to make the orders sought in the motion in the Treyvaud Proceedings.

JB Stockfeeds Proceedings

45. I hold a different view in relation to the JB Stockfeeds Proceedings. This is principally for the reasons identified by Mr Astill in his written and oral submissions: there appears to be nothing in Mr Allsopp’s updated report that is evidence of an opinion relating to an “interest” in “land” held by JB Stockfeeds within the meaning of the Just Terms Act.

46. In its Amended Points of Claim, JB Stockfeeds, which claims to have leasehold interests in the relevant lands, makes the following claims for compensation under the Just Terms Act:

1. claims under s 55(a) (market value), s 55(b) (special value), s 55(c) (severance) and s 55(f) (decrease in value of other land), all seemingly based on a decrease in the market value of its leasehold interests as a result of the acquisition of the Acquired Land;

2. an alternative claim under s 59(1)(f) for financial costs incurred or likely to be incurred by it relating to its actual use of the Acquired Land; and

3. various disturbance losses pursuant to s 55(d).

47. The problem I have with the orders sought in the JB Stockfeeds motion is that the Allsopp Report does not seem to address any of these asserted claims for compensation. In the Allsopp Report, the assessment of market value in relation to JB Stockfeeds is expressed to be “of the Going Concern Business Jervis Bay Stock Feeds Pty Ltd”. It purports to be a value of the JB Stockfeeds “business goodwill”. This is confirmed by the Applicants in their written submissions, which state that “Mr Allsopp opined that compensation was payable to the Applicants… for… the going concern business ($243,000)”. [22] Further, the opinion of value is not that of Mr Allsopp in any event, but is based on an accountant’s report which is Annexure 7 to his report (Accountant’s Valuation). That is a valuation of JB Stockfeeds as a business, rather than a valuation of any interest in land such as JB Stockfeeds’ leasehold interest.

    22. AWS at [23(vi)].

48. It might be that JB Stockfeeds has claims that can be maintained under the sections of the Just Terms Act pleaded in its Amended Points of Claim. I do not know. However, there is nothing in the Allsopp Report, or the attached Accountant’s Valuation (which might not be admissible at a final hearing in any event if objection is taken), that is evidence in support of a claim relating to compensation associated with an interest in land, or to the Amended Points of Claim. For that reason, there is no utility I can see in granting the orders sought in the motion relating to the JB Stockfeeds Proceedings. That motion should be dismissed with costs.

Costs

49. As to costs, the Respondent submits that whatever orders I make (including granting the orders sought in the motions) the Applicants should be ordered to pay the Respondents costs, and on an indemnity basis. It is submitted that the Applicants should pay the Respondents costs of:

“(a) attendance at the two s 34 conferences;

(b) consideration of the Staniforth Report; and

(c) preparation of, and evidence for, [the] motion”. [23]

23. RWS at [50].

50. I am not inclined to make an order that the Applicants should pay the Respondent’s costs thrown away of the conciliation conferences. In my view granting the orders sought in the motion in the Treyvaud Proceedings has not subverted the s 34 conciliation conference process. I am not satisfied that the conferences involved a waste of time because a new valuer can be relied on now. The evidence before me does not establish that.

51. As to Mr Staniforth, it might be appropriate to make some form of specific costs order in relation to the Respondent’s consideration of his report, but the proper time for considering such a costs order is at the conclusion of these proceedings, not now.

52. I am however inclined to order the Applicants to pay the Respondent’s costs of both motions. The JB Stockfeeds motion has been dismissed. In relation to the motion in the Treyvaud Proceedings, an indulgence has been granted of the kind that warrants the Applicants having to pay some price by the means of a costs order.

53. In relation to the submission that an order should be made for indemnity costs, Mr Astill relied on the decision of Duggan J in The Owners – Strata Plan No 76907 v Sydney Metro [2025] NSWLEC 6 (Strata Plan No 76907). In that case, her Honour made orders granting the Applicant leave in a Just Terms Act proceeding to rely on expert evidence in circumstances where it had lost the right to rely on such evidence because of non-compliance with orders of the Court. That is not quite the circumstances involved here. Further, in Strata Plan No 76907, her Honour was addressing some fairly brazen non-compliance with orders of the Court which she described as “inexcusable”, and for which the Applicants had failed to provide adequate reasons for the non-compliance: Strata Plan No 76907 at [11] and [16]. I agree with Justice Duggan’s approach in Strata Plan No 76907, but the circumstances in this case in my view are distinguishable from those before her.

54. Here, the unchallenged evidence is that the Applicants lost confidence in Mr Staniforth in about December of 2024. They proceeded with the conciliation conference process in the hope of reaching settlement, with the conference being terminated in April of 2025. After that they filed the motions now before me. In the meantime, their solicitor has not been able to communicate with Mr Staniforth. What has occurred here is not an example of anything approaching perfect management of their claim before the Court, but the Applicants have explained the reasons for seeking the orders that they do in a relatively frank manner. The indulgence granted warrants an order of costs against them in relation to the motion they have been successful in, but not on an indemnity basis.

55. Finally, both of these matters require further case management orders to be made promptly, and to be set down for hearing. I have ordered that they be relisted before the Court for those purposes at 9:30am on 3 July 2025. The parties should agree to short minutes before this, or, if they cannot, they should provide the Court with their own proposed case management orders at the adjourned date, including for joint conferencing of experts and orders consistent with the Court’s relevant practice note. Proposed short minutes of order should be provided to my Associate by 5pm on 2 July 2025.

Orders

1. The Motion filed in the JB Stockfeeds Proceedings (matter number 2023/00091290) is dismissed.

2. The Applicant is to pay the Respondent’s costs of that motion on the ordinary basis.

3. In relation to the Treyvaud Proceedings (matter number 2023/00091258):

1. leave is granted to the Applicants to rely on the expert report of Owen Allsopp dated 8 May 2025;

2. leave is granted for Owen Allsopp to confer and prepare a joint valuation report with the Respondent’s valuation expert in these proceedings.

4. The Applicants are to pay the Respondent’s costs on the motion on the ordinary basis.

5. Both proceedings are adjourned to 9:30am on 3 July 2025 before me for case management orders to be made. By 5pm 2 July 2025 the parties are to send to my Associate agreed orders, or their own set of proposed orders.

6. Liberty for the parties to apply for further directions in both the Treyvaud and JB Stockfeeds Proceedings on 48 hours notice.

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Endnotes

Decision last updated: 17 June 2025