Bloom v Lepre [2008] NSWSC 79 | Case summary

(8) The result of the case. 33 (1) Section 88K was introduced into the Conveyancing Act by the Property Legislation Amendment (Easements) Act 1995. 34 The Attorney-General's Second Reading Speech which is in evidence (DX131) indicates that the focus was on the problem of lack of access in closely settled areas to building activities on neighbouring land. It is clear from the cases before 1995 that in closely settled areas one could not even repair a defective outer wall if the only way one can get to it is through a neighbour's land unless one agreed to a neighbour's harsh terms. The present Act and certain ancillary legislation enabled the court to deal with that situation. 35 However, the authorities decided since the enactment of s 88K show that it has a wider operation than merely in that situation. 36 Mr Grieve and Mr Moschoudis kept saying in their submissions that the legislation was a remedial legislation. So it is, and indeed, in one of the leading cases, Khattar v Wiese (2005) 12 BPR 23,235 at [45], Brereton J adopted the construction of s 88K based on its remedial nature. 37 However, one must be very careful with remedial legislation conferring benefits on a section of the community, that one does not forget the rights of other members of the community. 38 It may be fair enough to prevent a neighbouring owner from "blackmailing" his neighbour when all the neighbour wants to do is to gain access to repair a building on his land or erect a new building. However, where (which is not quite this case), there is an indefinite appropriation of part of a person's land in the sense that that land will be sterilised in so far as the person's own building is concerned, the court is not necessarily quite so favourable to the application. 39 It must be remembered that the attitude of the court to modification of easements and covenants, is that it is reasonable for a person who has a property right and who wishes to preserve his or her benefits of sunlight, view and privacy, to insist that these non-proprietary rights continue even though the economic use of neighbouring land may be diminished. If there are such non-proprietary rights ancillary to rights of property, then their owner is entitled to protection; see eg Re Parimax (SA) Pty Ltd (1954) 56 SR (NSW) 130. 40 These matters come to be taken into account when considering matters of discretion which will be dealt with in section (6) later. 41 (2) The cases have now quite clearly established that the words "reasonably necessary" do not mean that there be absolute necessity but the need must go beyond mere desirability (see Tregoyd Gardens Pty Ltd v Jarvis (1997) 8 BPR 15,845; 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1988) 8 BPR 15,917 at 15,920; Hanny v Lewis (1998) 9 BPR 16,205 at 16,207 and Owners Strata Plan 13635 v Ryan (2006) 12 BPR 23,485 at [28]). Furthermore, Hanny and Ryan at least are authority for the proposition that what must be reasonably necessary is the development or use of the land itself, not the personal enjoyment by a person who for the time being is a proprietor of the land. 42 There appears to be little need to discuss cases where what is claimed by the plaintiff is reasonably necessary for the development of its land. As far as my memory goes, the cases that have come before the court have not involved situations where anyone has ever challenged the development proposed by the plaintiff. However, questions may arise where the plaintiff's claim is that the proposed easement is reasonably necessary for the use of his or her land. 43 Mr Grieve puts that "development" covers any improvement of the plaintiff's land by some means including the erection of buildings and that "use and development" is a conjoint phrase. 44 He puts that cases such as Durack v de Winton (1998) 9 BPR 16,403 show that a wide reading of the words "use or development" is justified in this remedial legislation. 45 I generally agree with that submission, but I do not consider that "use" in the sense it is employed in this section can descend to connote situations that are specific to a particular person currently on the land such as, for instance, that the premises are currently being used as a nursing home and access for ambulances is required. 46 In Ryan, Rein AJ at [49] and [58] appears to have accepted the proposition that facilities for parking was something which was reasonably necessary to the use of land even though nothing to do with the use of a residential building. 47 The question of what is reasonably necessary for the use of land is a question of degree and needs to be considered in light of all the circumstances of the case. In Etwell v Newcastle City Council (2006) 151 LGERA 64, Palmer J said that in working out reasonable necessity one determines it objectively; necessary meant sometime more than desirability or preferability over alternatives, but it was always a matter of degree. 48 In Woodland v Manly Municipal Council (2003) 127 LGERA 120 at 128-129, Hamilton J usefully set out the approach that a court must make when dealing with an application under this section. His Honour listed 10 steps setting out both the gateways that must be passed through before relief can be given as a matter of law and also discretionary factors. I will apply these steps, though without much further reference to this authority. 49 It is clear that when the court is determining what is reasonably necessary for the use or development of the plaintiff's land, the court considers that question in the light of the reasonable use of the surrounding land. 50 Hamilton J's fifth to ninth propositions in Woodland deal with reasonable necessity. His Honour's point 7 was that in considering reasonable necessity the court takes into account whether and to what extent use with the easement is preferable to use or development without the easement. That use with the easement is preferable or, a fortiori, substantially preferable to use or development without the easement, will conduce to a finding of reasonable necessity, but it is not a necessary precondition to that finding. 51 In the plaintiff's submissions it was put that: · the plaintiff's land is landlocked as there is no front access to a street; · in 1936 when the easement was created cars were smaller and it was intended that Lot C have access by motor vehicle; · off-street parking is reasonably necessary use of any land in the 21st century; · there is no evidence that Booker Bay has any houses which have no off-street parking. 52 In my view, the propositions stated in the bullet points are too wide. It may well be that under some circumstances, off-street parking is reasonably necessary for the proper use of land. However, there are a whole host of older suburbs in inner Sydney where off-street parking is just not possible. Furthermore, there is authority that land which is only accessible by water is not landlocked; see eg Parish v Kelly (1980) 1 BPR 9394. 53 I do not consider that I can take judicial notice of the size of cars from 1936 to date. If I could, I would venture to suggest community standards have regularly changed. 54 It would be vain to say that facilities for parking were not reasonably necessary for the use of land in the abstract. However, where cases such as Khattar and Ryan do speak in these terms, and indeed the same could be said of Einstein J's decision in Durack v de Winton, the judges are very careful to say that whilst reasonable necessity is to be determined objectively in the light of the facts, an order under s 88K is not to be made lightly. 55 Thus, one must, when working out the reasonable necessity for the plaintiff, not close one's eyes to the effect on the proper use of the defendant's land and pay proper respect to the defendant's present rights of property. If this were not so, and if the court were permitted merely to focus on the reasonable necessity of the use of the plaintiff's land, then almost any advantage to the plaintiff would be allowed notwithstanding the effect on other people. That was not supposed to be the prime focus on this remedial law. Most of these matters, however, can be dealt with under discretion rather than under what is reasonably necessary as a matter of law or construction. 56 Mr Insall submits that in any event Mr Bloom's request merely shows a case of desirability rather than necessity. He says that Mr Bloom has an existing right of way which enables him to drive a small car on to his property and park within his property, for which the car must be able to carry shopping and other household goods which need to be transported on a routine basis. Further, the north/south section of the right of way permits access by much larger vehicles including a removal van to a position about 12 metres away from Mr Bloom's house. It may very well be desirable to have a wider easement running along the east/west section right up to Mr Bloom's door, but desirability is not the statutory test. The facts show that the property Lot C has been effectively used without grant of any wider easement for perhaps 80 years. Widespread individual vehicle ownership has been the norm, at least for the 50 years since the Second World War. 57 Mr Moschoudis seeks to answer these submissions by saying that a bigger vehicle than the Bambino (and a few other models) cannot park on Lot C and that means that it needs to be parked in the street where it is at risk of being damaged by vandals. This point has some validity, but its validity was affected by the evidence which suggested that it was possible for vehicles to be parked on nearby property by payment of a licence fee. 58 The point was further diminished by the fact that no car longer than 4.5 metres can park in the rear yard of Lot C in any event. 59 Mr Insall also puts that when one is working out reasonable necessity one must view the degree of burden on the proposed servient tenement and the greater the burden, the stronger is the case needed to justify a finding of reasonable necessity as he refers to the decision of the Land and Environment Court in Property Partnership Pacific Pty Ltd v Owners of Strata Plan 58482 [2006] NSWLEC 709 at [27] and Khattar at [27]. 60 Mr Insall points out that Proposal 2 involves demolition of part of Ms Lepre's garage. He submits that there is no jurisdiction to do this (I have already rejected this submission), but even if it is within jurisdiction, it is an unacceptable intrusion into the defendant's rights of ownership. Even Proposal 1 involves dismantling and relocation of the fence and shade structure that the defendant has erected. 61 Mr Insall also puts that in any event Proposal 1 and Proposal 2 would not give Mr Bloom what he wants, and accordingly, would be quite ineffective. Current standards for access to a piece of land require provision for a "85th percentile vehicle": see Mr Coady's affidavit and report. Neither Proposal 1 nor 2 accommodates an 85th percentile vehicle access. 62 I need to explain this matter by reference to the evidence. 63 The expert report from Messrs Brogan and Coady (Exhibit AX88) refer to appendix A in the Australian/New Zealand Standard AS/NZS2890.1:2004 - Parking Facilities Part 1: Off-Street Carparking. This Standard provides design vehicle characteristics and dimensions for three types of cars, namely, the B99 vehicle - the 99th percentile vehicle which has dimensions 5.2 metres long by 1.94 metres wide, the B85 vehicle - the 85th percentile vehicle which has dimensions 4.91 metres long by 1.87 metres wide, and the light car, the 35th percentile vehicle which has dimensions of 4.45 metres long and 1.7 metres wide. 64 Mr Coady gave evidence that the 85th percentile vehicle is the appropriate design vehicle for both public and private places. He accepts that the 35th percentile vehicle (such as the Bambino) is acceptable in circumstances where alternative access for larger vehicles is not practicable. 65 Mr Brogan considers that the Standard is directed for design purposes for parking at clubs and in public places and has little to do with parking such as the present situation. 66 In my view the Standard and the preference for an 85th percentile vehicle is what one would really look to when one is looking at the ordinary use of land, though a smaller vehicle may need to be used as the only possible option in smaller blocks. 67 An 85th percentile vehicle is 4.91 metres long and such a vehicle could not park within Lot C as the parking space on Lot C appears to be only 4.55 metres long. 68 It was this sort of submission that led the plaintiff to amend the summons to include Proposals 3 and 4 to accommodate an 85th percentile vehicle's travel as disclosed by computer modelling. 69 Proposals 3 and 4 were advocated late in the hearing. Mr Insall sought and was granted leave to put in further written submissions. In those submissions he puts that the evidence shows that Proposal 3 has a greater adverse impact than Proposal 1, and Proposal 4 is likely to be as severe as Proposal 1. The problem about parking an 85th percentile vehicle on Lot C has also not been addressed. 70 Mr Insall also puts that Proposals 3 and 4 even more than Proposal 1, affect the ability of Ms Lepre to park her second car at the rear of Lot A. Furthermore, there is nowhere else she can park it. Furthermore, the defendant would be in trouble with any future development application because of the open space requirements in Development Control Plan No 155. 71 As to the problem that no vehicle longer than 4.5 metres could be parked on the east/west axis of Lot C, the plaintiff tendered evidence that a turntable could be built on Lot C which could turn a vehicle up to 4.5 metres long. He also provided a list of a number of cars which were shorter than 4.5 metres in length. 72 The evidence was that Mr Bloom is seriously considering buying one of the Mercedes Benz short cars (the "Short Car") which evidently has recently come on the market and is only 2.5 metres long. 73 This partially answers the problem about whether the car can be garaged on Lot C in any event. However, curing that problem has opened up bigger problems as to whether any adjustment of the right of way is needed at all if an even shorter car is to be used by the plaintiff. 74 However, the major point is that planning instruments in the locality consider that it is appropriate that an 85th percentile car have parking space on the relevant lot and this just will not be met no matter what car Mr Bloom actually purchases. 75 So far as Ms Lepre's parking is concerned, at the moment she has her second car parked on Lot A under protective shade cloth. That shade cloth is supported by removable metal pillars. Ms Lepre says that if, for instance, Proposals 3 or 4 were adopted, she would have to redesign this. That is so, but it does not seem to me it is a particularly burdensome exercise and could be met by compensation. I am more concerned with the area that would remain for parking her second car. 76 However, the plaintiff says that two things must always be borne in mind, first, that he is going to redevelop his property so long as he can do so as a result of this case. I understand that, but I cannot see how the 4.55 metre area for parking will be changed except that the car may have to do a further right hand bend so that it parks on a north/south axis. 77 Secondly, the plaintiff says that under the ordinary law of easements, the grant of an easement implies also the grant of "swing space" (see Megarry J in V T Engineering Ltd v Richard Barland & Co Ltd (1968) 19 P & CR 890. Accordingly, it is put that it is not for Ms Lepre to take the point that in making the right hand bend any vehicle entering Lot C will marginally encroach into Lot A, nor should she gain any advantage in putting fences, metal barriers or metal posts so close to the boundary that swing space is impeded. 78 There is some validity in this argument but it is not the whole picture. I note that, at the view, Mr Bloom in fact appeared to swing outside the boundaries of the right of way when both exiting and entering his land. It would not appear that this has been the subject of objection though the existence of the removable poles has restricted it. 79 Two other practical matters were argued. On the plaintiff's side it was put that one of the strongest points that could be made for the plaintiff was that right from 1936 the proprietor of Lot C had a right of way to gain access to his property by vehicle. All that is now being asked is that in light of current conditions and the development of motor vehicles, an extra metre wide on the east/west path of the right of way be granted. This is almost de minimus. 80 On the other side, Mr Insall put that the plaintiff was a barrister, he must know the law, he saw the land before he bought it and it was quite obvious that there were problems with vehicular access to anything more than a small vehicle. He bought the property with his eyes open and he should not now be permitted to say that it was reasonably necessary for use of his land that he has access by a bigger vehicle. 81 I have reached the conclusion that, when one evaluates all these factors, in particular the amount of land available for parking a car on Lot C, the real need to abandon Proposal 1 in favour of Proposal 3, the impact on the servient owner and the fact that the land was bought with eyes open in its existing state, the plaintiff has not demonstrated that the easements proposed in any of Proposals 1-4 are reasonably necessary for the use or development of the plaintiff's land. 82 The evidence discloses that the conception manifested in those proposals would be desirable from the plaintiff's point of view, but no more than that. 83 (3) The next matter is public interest. It should be noted that the section does not require the plaintiff to show that what he intends to do is in the public interest, rather that the use of the land will not be inconsistent with the public interest. I need not spend too much time on this aspect of the case. It would seem to me that the plaintiff is quite correct that removal of cars from the public street on to private land is not inconsistent with the public interest and that is the focus of what the plaintiff is proposing to do. 84 (4) Compensation. As I understand the evidence, the compensation offered is approximately $29,000 in respect of Proposal 1 and $65,000 in respect of Proposal 2. The compensation for Proposals 3 and 4 were not as finely tuned, but as I understand Mr Moschoudis' address, the land value he is offering for Proposal 3 is $27,500 and Proposal 4 $25,000 which if one adds the building costs, would bring the compensation to $31,500 and $29,000 respectively all up. 85 The defendant says that no amount of money can compensate her in the present case. However, if one is looking at land values, then the valuation evidence on her behalf shows that Proposal 1 involves loss of land valued at $45,000 together with building costs of $4,150 and Proposal 2 $80,000 plus $24,350 building costs. 86 The loss or disadvantage for which compensation must be available and fixed by the court covers a wide spectrum of losses to the defendant and is not limited to the value of the land. Often, as the cases show that the concern is with the loss suffered by the defendant's business. A prime example is Katakouzinos v Roufir (1999) 9 BPR 17,303 where the defendant's hotel would be affected by the view of the plaintiff's proposed scaffolding from the hotel rooms. 87 In Katakouzinos v Roufir at 17,310 [66], Hodgson J said that the onus was on the plaintiff in this sort of case, first to show what loss or other disadvantage the defendant will suffer, and second, to show that loss or disadvantage can be adequately compensated. 88 I followed that principle in Wengarin v Byron Shire (1999) 9 BPR 16,985 at 16,989 and said that "Ordinarily the compensation will be: (a) the diminished market value of the affected land (including what is sometimes called the hope value, that is the potential use to which the subject land could have been put); (b) associated costs that would be caused to the owner of the affected land; (c) an assessment of the compensation for insecurity, loss of amenities such as loss of peace and quiet; and (d) the compensation is to be less compensating advantages if any". (References omitted). 89 I noted that compensation in this section is not a substitute for the price that could have been expected if s 88K did not exist: see SJC Construction Co Ltd v Sutton LBC (1975) 29 P & CR 322 at 326. 90 I then added, "There may be some exceptional cases which fall outside the net of 88K(2)(b) yet are cases where it is extremely difficult to assess the compensation, but it is clear that the applicant is to derive a considerable benefit from the application. In such circumstances it may be appropriate to assess the compensation on a percentage of the profits that would be made." 91 In Mitchell v Boutagy (2001) 118 LGERA 249, Austin J said that he did not accept that compensation should be assessed on a generous basis rather than a miserly one and that he did not accept that loss of amenity and utility was a category of loss of proprietary rights which could be the subject of compensation. I merely note this for the sake of completeness, it does not feature in my assessment in the instant case. 92 Mr Moschoudis pointed to the words in subsection (4) of s 88K that the court is to provide compensation "unless the court determines that compensation is not payable because of the special circumstances of the case." Mr Moschoudis referred to what I said in Wengarin at 16,988 [20], but special circumstances might exist if the situation whereby the easement is required is brought about by some blameworthy conduct on behalf of the defendant. He submits that in the present case the erection of a metal fence on Lot A has brought about the problem. I do not favour this submission. It may be (or it may not be) that the erection of a metal fence would have been restrained by an injunction because it affected the proper use of the right of way, but that would not be a reason why an additional right of way should be granted. 93 The joint report of the valuers (AX88) shows that they are agreed that $20,000 is a fair and reasonable assessment for the diminution in value of Lot A under Proposal 1 and $7,500 plus the costs of relocation of fencing and services is a fair and reasonable assessment of diminution in value under Proposal 2 so far as it affects Lot A. So far as Lot 100 is concerned, they could not agree. Mr Dick, the defendant's valuer, assessed the diminution in value at $25,000 comprising the loss of car space at $20,000 and the impact on amenity etc at $5,000. Mr Brown considered there was a nil impact on Lot 100 under Proposal 1 as the car space could be relocated to the rear yard of Lot A. Both men considered that this would depend on survey. 94 So far as Proposal 2 is concerned, Mr Dick's assessment of $70,000 includes an allowance of $20,000 for the loss of the car space. Mr Brown did not allow for that so that they agreed in the "hot tub" cross-examination that the difference between them was about $10,000 and the attitude to the car space. 95 Although "splitting the difference" is rarely a satisfactory method of dealing with valuations it seems to me in the present case, having heard both valuers who appear to be sound experts in their field in their hot-tub performance and reading their joint reports, that probably one should split the $10,000 difference down the middle. So far as the car space is concerned, I cannot really see how it could be relocated in the land that remains of Lot A unimpeded by the easement and any swing factor. Accordingly, I would allow Mr Brown's figure. 96 Accordingly, so far as s 88K(2)(b) is concerned, I determine that the owner of the land to be burdened can be adequately compensated. 97 So far as section 88K(4) is concerned, the compensation that would be appropriate in the case of Proposals 1 and 4 would be $50,000 being $45,000 land value and injurious affectation plus $4,200 building costs rounded up because of inflationary costs in the building industry etc from the date that the figures were obtained. In respect of Proposal 3, the figure would be $52,500 because the land value is $2,500 more. In the case of Proposal 2 the appropriate figure is $97,000 being land value and affectation $72,500, building costs $24,350 rounded up. 98 (5) There does not seem to me to be any issue on whether there have been attempts at negotiation before suit as it is clear that apart from Proposals 3 and 4, there were some negotiations and it was clear that the defendant would not entertain anything further. 99 Mr Insall says there has been no negotiation at all with respect to Proposals 3 and 4. Whilst this is true, it is clear from the attitude to Proposal 1 which was very similar but perhaps a little less intrusive, that any further attempt to negotiate would have been a complete waste of time. Accordingly, I do not consider I can do anything else but find this factor in favour of the defendant. 100 (6) It is clear from the authorities that the commencing words of section 88K(1) "The court may make an order imposing an easement" confers a discretion on the court to make or refuse an order even if all the factors set out in subsection (2) are decided in favour of the plaintiff: see Khattar at 23,250 [59]; Blulock Pty Ltd v Majic (2001) 10 BPR 19,143 at 19,150 [20] and Woodland at 128 [19] proposition 3. 101 In Khattar at [60] Brereton J said that the discretion is to be exercised having regard to the purpose of the section which might be summarised as facilitating the reasonable development of land while ensuring that just compensation is paid for the erosion of private property rights. This was affirmed by Biscoe J in Property Partnership Pacific Pty Ltd v Owners SP 58482 [2006] NSWLEC 709 at [58]. 102 It is inappropriate to set out matters which affect a discretion, the discretion is at large and must not be restricted by inventing lists of possible criteria. It is clear, however, that if the plaintiff is otherwise entitled to an order, it would be wrong for the court to exercise its discretion against the application capriciously. Normally, factors purely personal to the plaintiff such as his or her belligerent manner or the colour of the tie or scarf they wore in the witness box, would be such matters. The core matter affecting the exercise of the discretion are matters which touch and concern the respective pieces of land. 103 In the instant case most of the factors relevant to discretion have already been discussed when dealing with the matter of reasonable necessity in section (2) of these reasons. 104 The matters which seem to me particularly relevant to the exercise of discretion are that the defendant has managed her property on the basis that the right of way in favour of the building on Lot C has been satisfactory to the occupant of that property for many years. The plaintiff came to the property knowing the restricted access. He can drive a car on to his property, albeit a very small one. He has, or can have, available parking off the street a few hundred metres away. Whilst it would be more comfortable to have off- 105 street parking, in view of the inconvenience that the expanded right of way would cause to the defendant, even if it were reasonably necessary rather than merely most desirable, the court would be reluctant to interfere with the defendant's proprietary right. 106 On the other hand, the plaintiff says that there is already an existing easement, the defendant may be disturbed by any vehicle coming down that right of way, all that he is asking for is a metre further width, the impact on Lot A is less than 4%. When one takes into account that the court will impose an order for significant compensation, one can see that, on a proper analysis, the defendant will not really suffer if the easement were to be granted. 107 Another factor that must be taken into account either here or elsewhere, is Proposal 5. 108 It will be remembered that Proposal 5 is that there be a right of way down the western side of Lot A over Dr Hillman's land, though also taking in the existing pedestrian right of way on the western side of Lot A. The defendant says this is a far better entrance route for the plaintiff because it does not involve any right hand bend but rather a straight path down to his land. 109 The plaintiff says that Proposal 5 is not a reasonable alternative. For one reason it does not allow him to get his car parked on an east/west access. Secondly, Dr Hillman is fiercely against it; and thirdly, it would intermix both pedestrian and vehicular traffic. 110 Fourthly, the plaintiff says that Proposal 5 is manifestly inferior in addition to the reasons I have already stated in that there would be inefficient waste of valuable residential land on Dr Hillman's in lieu of merely widening an existing right of way by one metre. 111 I must confess these reasons do not really seem particularly weighty, but on the other hand it is for the plaintiff to indicate what easement he wants, and he does not want Proposal 5. As Brereton J said in Khattar at [32], where there is more than one possible easement the applicant may within reason select that which he desires to acquire. So long as that is a reasonable selection, the court does not assess whether one is objectively superior to the other. 112 I really do not consider that the existence of Proposal 5 assists in resolution of the present case. 113 In the light of my decision that the plaintiff has not shown that any of the Proposals 1-4 were reasonably necessary for the use or development of the plaintiff's land, it is strictly unnecessary for me to deal with the question of discretion. 114 As Windeyer J pointed out in Blulock at [20], in many cases considerations of discretion and other factors overlap. They do in this case. However, in considering matters of discretion, the court probably gives greater weight to the inconvenience that might be suffered by the defendant than when it is considering the elements that the plaintiff must prove to be entitled to an order under the section. 115 I must state that, even if I was in error in concluding that the plaintiff's proposal had not overcome the hurdle of demonstrating that the proposed easement was reasonably necessary, this is a case where the factors I have mentioned would lead to the court saying in its discretion that it should not grant an order. 116 (7) Counsel for the plaintiff acknowledges that s 88K(5) means that the costs of the proceedings are payable by their client subject to any order of the court to the contrary, but put that a contrary order should be made. 117 They acknowledge that there is no argument that the defendant should have the costs of considering the application and taking legal advice, at least such as used to be covered by the old two guinea rule: see Re Rose Bay Bowling & Recreation Club Ltd (1935) 52 WN (NSW) 77 at 78. However, over and above that they put that there should be no order for costs. Alternatively, if that proposition is not upheld that the costs which have been inflated by the raising of irrelevant issues should not be allowed. 118 Before dealing with those matters I should note that in Property Partnership Pacific Pty Ltd v Owners SP 58482 at [89], Biscoe J said that he would be inclined to say that costs of these sorts of application should be on the indemnity basis because s 88K is a confiscatory legislation providing for compensation and the respondent should have its day in court and receive costs even though it loses and not be out of pocket. However, he recognised the weight of contrary authority and that costs would ordinarily be made on the ordinary basis. I accept what his Honour there said. 119 It is true in this case that there was far too much material provided that was necessary for the fair determination of the questions involved. This was of two kinds, first, there were allegations and counter allegations as to nastiness on each side towards the other party and their associates. In the end, almost all of this was either not read or rejected and really could have little impact on the case other than to bear upon the question which allegedly was conceded that there had been sufficient negotiation concerning Proposals 1 and 2. 120 The second was the proliferation of expert witnesses. I very much doubt that had the court considered the question as to whether leave should be given to call all that expert evidence that it would have acceded to the request. However, in this case, by the time the court had to consider whether leave should be given to call expert evidence, the expense had been incurred in retaining architects and builders and traffic planners and valuers and surveyors, who in the end did not differ that much. 121 I must note that there is no suggestion that either party went out of his or her way to make the case more complicated or expensive by excessive retention of experts. 122 As to the first class of evidence, Mr Insall points out that his solicitor did write at a very early stage pointing out the uselessness of a lot of the spite evidence put forward by the plaintiff and was met with a reply that the plaintiff would press ahead with all guns blazing. It was argued, probably correctly, that this material as to mutual spite was relevant as to whether there had been sufficient negotiation. This only ceased to be arguable when the concession was made. 123 As when it was put on the material was strictly relevant, it was part of the proper material in the case. It was initiated by the plaintiff, the plaintiff having lost the proceedings must pay the costs of it. 124 The same can be said about the expert evidence. The plaintiff was certainly a willing party to amassing all this expert evidence, and having lost the case, must pay for it. There is not sufficient evidence in the circumstances to negative the statutory provision that, ordinarily, the plaintiff is to pay the costs of the proceedings. 125 Accordingly, in my view the plaintiff must pay the defendant's costs of the proceedings. 126 (8) It follows from what I have said above, that the proceedings must be dismissed with costs. The exhibits may be returned after 28 days, but if an appeal is lodged they are to be retained pending the determination of the appeal.

Bloom v Lepre

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Cases Cited (4)

Cited By (6)