Waters v Leichhardt Municipal Council [2]
[2006] NSWLEC 31
•02/01/2006
Land and Environment Court
of New South Wales
CITATION: Waters v Leichhardt Municipal Council [2] [2006] NSWLEC 31 PARTIES: APPLICANT
RESPONDENT
Peter W Waters
Leichhardt Municipal CouncilFILE NUMBER(S): 10167 of 2005 CORAM: Hoffman C KEY ISSUES: Costs :- Court appointed expert's fees LEGISLATION CITED: Environmental Planning and Assessment Act 1979
The Land and Environment Court Act 1979
Supreme Court Procedure (NSW)DATES OF HEARING: 29-30/06/2005 and 02/11/2005
DATE OF JUDGMENT:
02/01/2006LEGAL REPRESENTATIVES: APPLICANT
Mr C Leggat, SC
Instructed by: Mr C Shaw, solicitor
Of: Shaw ReynoldsRESPONDENT
Mr G Green, solicitor
SOLICITORS
Pike Pike & Fenwick
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHoffman C
1 February 2006
JUDGMENT10167 of 2005 Peter W Waters v Leichhardt Municipal Council
1 This was a Class 1 Appeal No. 10167 of 2005 between Waters and Leichhardt Municipal Council. Findings were published on the 30th June 2005 and after amended plans were produced and considered at the 2nd November 2005, final judgment was handed down on 24th January 2006.
2 The parties had contested costs and that is the subject of this decision. The disagreement on costs is related to the fees billed by the Court-appointed expert Mr Dickson.
3 The Acting Chief Judge his Honour Justice Talbot delegated power for me to deal with the fixing of a Court-appointed experts fees under the Supreme Court Rules Pt 39 and The Land and Environment Court Rules at the time being Pt 13 Div 2 r 2 (2).
4 The applicant submitted that the initial indication of fees partly on which the parties nomination of Mr Dickson was based, foreshadowed $5,000 to $7,000 in fees for reports plus appearance in Court of approximately $1,300. The amounts billed by Mr Dickson approached $20,000.
5 The respondent submitted that whilst the other experts considered for appointment had quoted a fixed hourly rate and a maximum fee Mr Dickson had quoted an hourly rate and undertook to give a maximum fee after seeing the documents related to the proposal. Both the respondent and the applicant accepted this but never asked for the foreshadowed maximum fee.
6 The total amount billed is $19,901.34. The amount paid to date is $14,390.72.
7 The applicant sought the Court to use its power to reduce the amount outstanding to zero.
8 The respondent said it may not be appropriate for it to act as a contradictor on behalf of Mr Dickson. The respondent’s position is that if the Court reduces the amount owed by the applicant, the respondent should not become liable for the whole of the amount outstanding. Reducing it to zero may be the only way to avoid the respondent becoming liable.
9 The parties advised the Court the full amount of the bills was held in trust depending on the Court’s decision.
10 Mr Dickson was requested to attend Court to give evidence.
11 The applicant made the point that at the stated rate of $245.00 per hour it equated to about 94 hours work time which was equivalent to two weeks for one person at 5 days per week and 8 hours per day. The applicant did not contest the bill of 7 June 2005 for approximately $12,000 for Mr Dickson’s first report nor did the applicant contest the bill of approximately $1,300 for attendance at the on-site hearing. It was the account for the remainder related to the amended plans prior to the on-site hearing that was thought excessive.
Following the on-site component of the hearing, Mr Dickson had not been required by the parties to consider the plans amended on the direction of the Court.
12 The respondent said from its experience during the pre-hearing and hearing attendances of Mr Dickson:
1. Mr Dickson was given an almost impossibly tight timetable by the parties to do his report initially.
2. One reason he was appointed related to his having the staff to be able to meet the timetable.
3. Mr Dickson is both architect and urban designer, so he covers two disciplines where quite often it was necessary to have two Court experts instead of one. Two sets of experts would result in fees totalling about the same as had been billed.
4. The respondent said the objection to Mr Dickson’s fees only appeared to arise when he altered his opinion at the on-site hearing when he saw the amended plans that the applicant tendered.
5. The initial quotes from all the likely experts were obtained in two minutes conversations over the phone. The quoteswere only ever indicative and given without knowledge of the range of issues and various amended plans that subsequently occurred.
6. The issues were complex involving:
- Visits to each objectors home;
- View line issues;
- Heritage/conservation issues;
- Streetscape issues;
- Competing landowners interests;
- Various amended plans.
13 Mr Dickson gave evidence that there was a tight timetable for his assessments and reports prior to the hearing. He agreed for a straight forward single assessment and single report on a house the average fee is in the range of $7,000-$10,000.
14 This appeal involved much more than that he said. On instructions from the parties:
- He received plans of the proposal and reports and statutes to read and understand;
- He attended each objector’s house, heard their concerns and made observations;
- He prepared a briefing paper after that and recommended changes to the proposal;
- He attended a meeting with both parties;
- That resulted in amended plans;
- He prepared his Statement of Evidence on those plans;
- As the first hearing date approached, he sought confirmation of which plans were to be at the Court;
- Just before the first hearing date he was advised it had been vacated and new plans were being prepared;
- Those plans became Exhibit A;
- He prepared a supplementary statement on the Exhibit A plans;
- During the preparation of that supplementary statement he was sent a landscape plan, a State Environmental planning Policy No. 1 Objection Report, and the comments made by the objectors to the amended plans, all to be commented upon as well;
- Mr Dickson said he was acting on Mr Shaw’s solicitor’s letter of 25 May 2005 saying in effect additional costs since the first Statement of Evidence would be paid by the applicant. That constituted a variation to the original contract in Mr Dickson’s opinion. Because the subsequent plans and documents came in for his assessment without any query on costs or types of reports, Mr Dickson proceeded on the hourly rate of whichever staff he needed to do the work and on the basis of reports needing to be in accordance with the Court’s Practice Directions.
15 The applicant said the amended plans had only minor changes.
16 Mr Dickson said they were crucial changes that needed careful assessment. They were height of roof, view lines, streetscape and floor space ratio. The applicant and the objectors had strongly contested the matter to protect their interests Mr Dickson said. As a result his assessment on each occasion had to be detailed. For instance the dispute of the actual floor space; in calculating the floor space ratio it required obtaining and checking CAD (computer aided drafting) files.
17 In regard to Mr Dickson forming a different opinion at the time of the on-site hearing compared to his conditional support of the proposal, in his statement of evidence, Mr Dickson said he had recommended a number of changes to the plans and only a few had been incorporated in the plans tendered at the on-site hearing. His Statement of Evidence was conditional on all the changes being done.
18 Overall it is my opinion that Exhibit 16, the fee confirmation letter, is the contract by which Mr Dickson was entitled to act. There is no query about his costs until such a late stage and without a request to set a fixed fee, he was entitled to proceed accordingly.
19 The work involved clearly exceeded the tasks normally required for a single assessment and a single report on a house.
20 It seems to me if the comparative quotes from the other experts considered for appointment were obtained on the basis of a two minute telephone call, then those other experts would be estimating fees only on the basis of a single assessment and a single report. Their final costs to do the more extensive tasks ultimately required in this appeal may have generated similar fees.
21 In view of the delegation to me by the Acting Chief Judge, there is no need for the concurrence of the Chief Judge to this decision.
22 Therefore the orders of the Court are:
1. The parties are directed to pay their accounts billed by Mr Dickson in the proportion set out by agreement between the parties during the course of pre-trial and trial events. The applicant agreed to pay Mr Dickson’s costs from 14 May 2005 up to but not including the hearing day costs.
2. The hearing day costs are to be split equally between the parties.
- ___________________
- K G Hoffman
Commissioner of the Court
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