Bezzina Developers Pty Limited v Leichhardt Municipal Council

The alternative schemes 14 The applicant identified various alternative schemes for the development of the land and by reference to which it supported that part of the claim for compensation assessed as market value of the land at the date of acquisition. These schemes were also modified in several ways during the course of the proceedings. 15 The hearing commenced on 13 February 2006 on the basis that the applicant no longer relied on any scheme other than the scheme referred to as the Amended Scheme. The plans for this hypothetical development were generated under instruction from the applicant in early 2006 and formally adopted at a pre-trial hearing on 9 February 2006. 16 It is important to realise that the land had the benefit of the grant of a development consent made on 14 May 1999. The development consent was subsequently modified but never relevantly commenced. The respondent argued that the consent had lapsed at the date of resumption. 17 A later development application involving use of the subject land and the adjoining Illoura Reserve was undetermined at the date of resumption. The respondent contended that subject to the adjustment of the proposed use of the building known as Bell's Store the latest proposal was the one most likely to be favourably considered by the council. 18 The Amended Scheme and the scheme the subject of the extant development application, as modified, ultimately formed the basis for the respective arguments between the parties. The valuers took cognisance of each scheme. 19 I found the Amended Scheme would have been the most likely to have been adopted by a prospective developer purchaser on the basis that it had the most likely expectation of obtaining development consent. 20 Although I adopted one scheme as preferable to the others nevertheless it was necessarily to consider each of the alternatives to place myself in the position of the hypothetical purchaser who would undoubtedly seek to achieve the highest and best yield from the land. In that respect the parties to the theoretical transaction would have been aware of and taken into account the history of proposed developments and the reaction of the council in each case. On the basis of that history and looking at the practicalities I was able to assess the expectation of the hypothetical purchaser having regard to all the relevant circumstances. 21 In my view, therefore it was appropriate for the valuers and other experts to give consideration to the various alternative schemes to enable the court to have the necessary opinion evidence for the purpose of assessing the development potential of the land and hence its value to a prospective purchaser at the date of the compulsory acquisition. The cost of providing and adducing that evidence should be included in the costs awarded to the successful applicant.

Conclusion 22 The making of a cost order is in the discretion of the Court. The discretion must be exercised judicially. It is the practice to award costs in favour of the successful party. However, in special circumstances where particular issues that have been raised by the successful party either unnecessarily or in a way that has unreasonably increased the costs of the proceedings the Court may make a special order in respect of those issues, particularly where the party has been unsuccessful in relation to them. 23 Notwithstanding the overall opposition to the applicant's claim for disturbance it is reasonable and just, in my opinion, that a special costs order be made in respect of the expense incurred by dealing with the claim for interest and mortgage costs, including the particular directions hearings referred to above at [13]. It is appropriate that the costs in relation to the issue of the claim for interest and mortgage costs be excluded from the order for costs in favour of the applicant and included in a costs order in favour of the respondent. 24 The respondent has been unsuccessful in seeking a special costs order in relation to the evidence of the alternative schemes. The result is that both parties have been successful in respect of the costs argument to approximately the same degree. It is reasonable therefore, that each party pay their own costs in relation to the notice of motion of the applicant dated 13 June 2006 and the notice of motion of the respondent dated 18 July 2006.

1. That the respondent pay the applicant's costs of the proceedings except costs: a. In respect of directions hearings on: 5 April 2005, 25 May 2005, 29 August 2005, 29 September 2005, 28 October 2005 and 2 November 2005; and b. In relation to the claim for loss attributable to disturbance in respect of mortgage costs and interest.

2. That the applicant pay the respondent's costs: a. In respect of directions hearings on: 5 April 2005, 24 May 2005, 29 August 2005, 29 September 2005, 28 October 2005 and 2 November 2005; and b. In relation to the claim for loss attributable to disturbance in respect of mortgage costs and interest.

3. That each party pay their own costs in relation to the applicant's notice of motion 13 June 2006.

4. That each party pay their own costs in relation to the respondent's notice of motion 18 July 2006.

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