Vilro Pty Ltd (In Voluntary Liquidation) v Roads and Traffic Authority of NSW (No 4)

[2011] NSWLEC 81

Land and Environment Court

New South Wales

Medium Neutral Citation:	Vilro Pty Ltd (In Voluntary Liquidation) v Roads and Traffic Authority of NSW (No 4) [2011] NSWLEC 81
Hearing dates:	10 February 2011
Decision date:	12 May 2011
Before:	Pain J
Decision:	Judgment of 15 December 2010 varied
Catchwords:	Procedure:- whether discretion under the Uniform Civil Procedure Rules 2005 should be exercised to vary final judgment
Legislation Cited:	Civil Procedure Act 2005 s 4, Sch 1 Land and Environment Court Act 1979 s 22 Uniform Civil Procedure Rules 2005 Pt 1 r 1.5, Pt 36 r 36.16, Sch 1
Cases Cited:	Aktas v Westpac Banking Corporation Limited [2010] HCA 47 Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 De L v Director-General, New South Wales Department of Community Services (No 2) [1997] HCA 14; (1997) 190 CLR 207 Fokas v Kogarah Shire Council [2008] NSWCA 145 Smith v NSW Bar Association (No 2) (1992) 176 CLR 256 State Rail Authority of NSW v Codelfa Constructions Pty Ltd [1982] HCA 51; (1982) 150 CLR 29 Vilro Pty Ltd (In Voluntary Liquidation) v Roads and Traffic Authority NSW [2010] NSWLEC 234 Wentworth v Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672
Category:	Consequential orders
Parties:	Vilro Pty Ltd (In Voluntary Liquidation) (Applicant) Roads and Traffic Authority of NSW (Respondent)
Representation:	Mr T Hale SC with Mr R Beasley (Applicant) Mr P Tomasetti SC with Mr S Nash (Respondent) Minter Ellison (Applicant) Blake Dawson (Respondent)
File Number(s):	30369 of 2009

Judgment

1. The Roads and Traffic Authority of NSW (RTA) has filed a Notice of Motion dated 24 December 2010 seeking an order that the judgment in Vilro Pty Ltd (In Voluntary Liquidation) v Roads and Traffic Authority NSW [2010] NSWLEC 234 (determination of compensation for compulsory acquisition) delivered on 15 December 2010 be varied at [285] and [286] and a variation in the amount of compensation awarded. It relies on Pt 36 r 36.16 of the Uniform Civil Procedure Rules 2005 (the UCPR) in doing so. The Notice of Motion was filed within the 14 day period specified in r 36.16(3A).

1. Under s 22 of the Land and Environment Court Act 1979 the Court is to determine absolutely, or on such terms and conditions as the Court thinks just, matters in issue before it. The Civil Procedure Act 2005 (the CP Act) and the UCPR made pursuant to the CP Act, generally apply to civil proceedings in this Court, including those in Class 3: CP Act s 4 and Sch 1 and UCPR Pt 1 r 1.5 and Sch 1. Some exceptions to the application of the UCPR to Class 3 proceedings are listed in Sch 1 but these are not presently relevant. Under UCPR r 36.16 the Court can vary or set aside a judgment or order if a motion seeking to do so is filed within time. The Applicant accepts that the Court has jurisdiction to entertain the motion.

RTA's submissions

1. The RTA accepts the power to vary a judgment does not permit reopening of the case ( Smith v NSW Bar Association (No 2) (1992) 176 CLR 256 at 265). It is not generally exercised in favour of an applicant who was at fault in failing to raise the matter in issue at an earlier stage per Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300. In Fokas v Kogarah Shire Council [2008] NSWCA 145 the Court of Appeal applied De L v Director-General, New South Wales Department of Community Services (No 2) [1997] HCA 14; (1997) 190 CLR 207 at 215 where the High Court (Toohey, Gaudron, McHugh, Gummow and Kirby JJ) identified the limited circumstances where this could occur.

1. In De L , the Court also stated at 215 the need for courts to balance the principle of finality of litigation against the fact that "accidents and oversights can sometimes occur, which, unrepaired, will occasion an injustice". In Fokas at [27], the Court of Appeal held that to reopen a final order requires "exceptional circumstances".

1. The variation of the judgment sought is appropriate under r 36.16. It is not a matter which could have been raised earlier and arises from the terms of the judgment itself. In order to determine the amount of compensation that should be allowed, a statement of Mr Parker dated 3 February 2011 was sought to be relied on.

Applicant's submissions

1. The power to vary judgments should be used rarely: State Rail Authority of NSW v Codelfa Constructions Pty Ltd [1982] HCA 51; (1982) 150 CLR 29 per Mason and Wilson JJ at 38; Wentworth v Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672 at 694 and Autodesk per Mason CJ at 303. Most recently the High Court has emphasised that the power to vary a judgment should be exercised with great caution, having regard to the importance of the finality of litigation: Aktas v Westpac Banking Corporation Limited [2010] HCA 47 at [6] per French CJ, Gummow and Hayne JJ. The judgment is final and should not be disturbed. No fresh evidence should be lead through Mr Parker.

Variation of judgment appropriate

1. I agree with the RTA's submissions that the variation sought arises solely from the terms of the judgment and is not a matter the parties could have been expected to address in evidence or in submissions at the hearing. There is an inconsistency in my reasoning which arises from the terms of the judgment as a result of the determination of various issues raised by the parties.

1. In [278] I concluded that the after value of claim area D should be assessed on the basis that its shape and topography would prohibit any future potential for residential rezoning. I held in [269] and [274] that the claim areas A and C should be assessed on the basis that their shape and topography would allow residential development in the mid to long term (10 to 15 years) in the future. Claim area B was assessed in [273] on the basis that it had no residential potential. When I awarded compensation for injurious affection to include noise barriers due to the long term potential for residential use I included the claim areas A, B, C and D. I erred in including claim areas B and D given my earlier conclusion in the judgment that their future development potential did not include residential development. There is no logical basis for awarding compensation for noise barriers in relation to the claim areas B and D. Such a claim is maintainable only for claim areas A and C.

1. It is appropriate to vary the judgment under r 36.16 of the UCPR in these circumstances. While the authorities relied on by the Applicant confirm that this should be done in rare cases only, this is such a case. As submitted by the RTA, [285] of the judgment should be amended to delete the reference to claim areas A - D to refer to claim areas A and C, as identified in par 6 of Ms Li's affidavit.

1. It follows that there will need to be an adjustment of the amount awarded for noise barriers in [286] of the judgment as a smaller area benefits from that claim for injurious affection. An amount is identified in the affidavit of Ms Li. The RTA sought to rely on a further statement of Mr Parker at the hearing of the motion as to the amount of compensation for noise barriers if these were allowed next to the claim areas A and C, not A, B, C and D. The Applicant objected to this fresh evidence. While I allowed it to be read subject to relevance, on reflection I consider the Applicant should have the opportunity to decide if that is the appropriate approach. I will not specify a final amount of compensation which will be allowed for noise barriers in this judgment but require the parties to come to an agreement on what that amount should be in a short time frame. Whether Mr Parker's statement has any role to play is a matter for the parties to decide.

1. When the final amount has been agreed the orders awarding an amount of compensation made by me on 24 December 2010 will also be amended to reflect that agreement. The RTA's Notice of Motion is successful in part in relation to prayer 1.

**********

Decision last updated: 23 May 2011