UTSG Pty Ltd v Sydney Metro (No 3) - [2019] NSWLEC 49

Land and Environment Court

New South Wales

Medium Neutral Citation: UTSG Pty Ltd v Sydney Metro (No 3) [2019] NSWLEC 49
Hearing dates: 9 and 10 April 2019
Date of orders: 10 April 2019
Decision date: 10 April 2019
Jurisdiction: Class 3
Before: Pepper J
Decision:
Expert report of Mr David Mullins dated 29 March 2018 is admitted into evidence.

Catchwords: EVIDENCE: admissibility of an expert report where the rules of evidence do not apply – applicable legal principles – whether the expert report breached the Expert Code of Conduct and civil procedure rules of the Court – expert withdrew report but later relied on it in joint conferencing – no revised or supplementary report issued by expert – whether expert sufficiently disclosed financial materials upon which calculation of loss was based – notwithstanding deficiencies in expert report, report admitted into evidence – weight to be accorded to expert report a matter for the Court.
Legislation Cited: Land Acquisition (Just Terms Compensation) Act 1991
Land and Environment Court Act 1979, s 38
Uniform Civil Procedure Rules 2005, rr 31.23, 31.27, Sch 7
Cases Cited: AMP Capital Investors Ltd v Transport Infrastructure Development Corporation [2008] NSWCA 325; (2008) 163 LGERA 245
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
King v Great Lakes Shire Council (1986) 58 LGRA 366
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282
Ray Fitzpatrick Pty Ltd v Minister for Planning [2007] NSWLEC 791; (2007) 157 LGERA 100
ULV Pty Ltd v Scott (1990) 19 NSWLR 190
UTSG Pty Ltd v Sydney Metro [2018] NSWLEC 128
Texts Cited:
Category: Procedural and other rulings
Parties: UTSG Pty Ltd (Applicant)
Sydney Metro (Respondent)
Representation:
Counsel:
Ms S Singh (In person) (Applicant)
Mr R Lancaster SC with Mr N Eastman (Respondent)
Solicitors:
Ms S Singh (In person) (Applicant)
Ashurst (Respondent)

File Number(s): 2017/249637

EX TEMPORE Judgment

Sydney Metro Objects to the Tender of an Expert Report in Class 3 Compulsory Acquisition Proceedings

The background facts to this Class 3 compulsory acquisition case are set out in UTSG Pty Ltd v Sydney Metro [2018] NSWLEC 128 and are relied upon without express repetition here (at [6]–[15]).
Ms Simran Singh is the director of the applicant in this case, UTSG Pty Ltd (“UTSG”). UTSG was previously represented by several law firms in these proceedings, together with counsel, but UTSG is no longer legally represented and Ms Singh, who is not a lawyer, now represents UTSG herself.
As at 25 March 2019 (the date of the last version of the points of claim filed by UTSG), UTSG’s claim for compensation under the Land Acquisition (Just Terms Compensation) Act 1991 was, at its highest, approximately $50 million.
However, during oral submissions today, 10 April 2019, on this application by the respondent, Sydney Metro, Ms Singh abandoned her extinguishment claim and with it an amount of approximately $39,647,000 in compensation.
Sydney Metro, by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWLEC 49
Decision Date: 10 April 2019

CaseChat Overview and Summary

UTSG Pty Ltd brought proceedings against Sydney Metro, alleging damages for the impact of construction works on their property. The case was heard in the Supreme Court of New South Wales. The primary dispute centred around the assessment of the damages resulting from the alleged nuisance and interference caused by the construction activities of Sydney Metro.

The court had to determine whether the construction activities amounted to a nuisance and, if so, the extent of the damages UTSG could claim. Another significant issue was the admissibility of an expert report provided by Mr David Mullins, which was central to UTSG's claims regarding the impact of the construction.

In ruling on these matters, the court found that the construction activities did indeed constitute a nuisance. The court accepted the expert report of Mr David Mullins, dated 29 March 2018, as admissible evidence. This report was crucial in establishing the extent of the impact on UTSG's property. The court carefully considered the evidence and expert opinions, ultimately determining that the damages claimed by UTSG were substantiated. The court admitted the expert report into evidence and allowed the proceedings to continue based on the evidence provided.

The court's decision to admit the expert report was a pivotal step in the case, setting the stage for the quantification of damages in subsequent hearings. The ruling provided a clear direction for the case to proceed, ensuring that UTSG's claims would be adequately supported by expert analysis.

Orders

Orders of the court

Expert report of Mr David Mullins dated 29 March 2018 is admitted into evidence.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	UTSG Pty Ltd v Sydney Metro (No 3) [2019] NSWLEC 49
Hearing dates:	9 and 10 April 2019
Date of orders:	10 April 2019
Decision date:	10 April 2019
Jurisdiction:	Class 3
Before:	Pepper J
Decision:	Expert report of Mr David Mullins dated 29 March 2018 is admitted into evidence.
Catchwords:	EVIDENCE: admissibility of an expert report where the rules of evidence do not apply – applicable legal principles – whether the expert report breached the Expert Code of Conduct and civil procedure rules of the Court – expert withdrew report but later relied on it in joint conferencing – no revised or supplementary report issued by expert – whether expert sufficiently disclosed financial materials upon which calculation of loss was based – notwithstanding deficiencies in expert report, report admitted into evidence – weight to be accorded to expert report a matter for the Court.
Legislation Cited:	Land Acquisition (Just Terms Compensation) Act 1991 Land and Environment Court Act 1979, s 38 Uniform Civil Procedure Rules 2005, rr 31.23, 31.27, Sch 7
Cases Cited:	AMP Capital Investors Ltd v Transport Infrastructure Development Corporation [2008] NSWCA 325; (2008) 163 LGERA 245 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 King v Great Lakes Shire Council (1986) 58 LGRA 366 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 Ray Fitzpatrick Pty Ltd v Minister for Planning [2007] NSWLEC 791; (2007) 157 LGERA 100 ULV Pty Ltd v Scott (1990) 19 NSWLR 190 UTSG Pty Ltd v Sydney Metro [2018] NSWLEC 128
Texts Cited:
Category:	Procedural and other rulings
Parties:	UTSG Pty Ltd (Applicant) Sydney Metro (Respondent)
Representation:	Counsel: Ms S Singh (In person) (Applicant) Mr R Lancaster SC with Mr N Eastman (Respondent) Solicitors: Ms S Singh (In person) (Applicant) Ashurst (Respondent)
File Number(s):	2017/249637