Constantino v Roads and Traffic Authority of New South Wales [2005] NSWLEC 209 | Case summary

JUDGMENT CORAM: HIS HONOUR A. INTRODUCTION 1 In my judgment published on 15 September 2004 in which I determined the amount of compensation payable under the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act) in respect of the Respondent's compulsory acquisition on 4 October 2002 of a part of the Applicant's land situate at McIver Avenue, Hoxton Park, I reserved the question of costs in the proceedings. 2 On the hearing of the reserved question of costs the Applicant has sought an order for costs against the Respondent but the Respondent has sought an order that each party bear its own costs in the proceedings, or in the alternative that any costs order that might be made in favour of the Applicant should be limited to a partial costs order allowing only part of the Applicant's costs (say 30 percent) or allowing the costs of only one valuer (instead of the two valuers called by the Applicant) and the costs of only one counsel (instead of the two counsel, including Senior Counsel), who appeared for the Applicant. B. THE COURT'S DISCRETION REGARDING COSTS 3 The parties' competing arguments commonly accept that s 69 of the Land and Environment Court Act 1979 confers upon the Court a very broad discretion regarding costs of proceedings conducted in the Court: see Oshlack v Richmond River Council (1998) 193 CLR 72. They also commonly accept that in proceedings for the determination of compensation payable under the Just Terms Act in respect of the compulsory acquisition of land the Court exercises its statutory costs discretion by recognising, inter alia, that that Act confers a right upon a person dissatisfied with the amount of compensation offered by the acquisition authority, to bring proceedings in this Court to obtain a judicial determination of just compensation and that the exercise and vindication of that right will necessarily involve the claimant in litigation costs (often incurring considerable expenses in what has generally become complex litigation often involving multiple expert disciplines). 4 Since the creation of this Court in 1980 and the vesting in it of jurisdiction to determine claims for compensation in respect of the compulsory acquisition of land (see s 24 of the Land and Environment Court Act 1979) (LEC Act) the costs of proceedings involving these claims for compensation have been governed by the general costs discretion conferred by s 69 of the LEC Act rather than by the special costs provisions that were formerly provided in the Public Works Act 1912, s 106 (and before that, in the Public Works Act 1900, s 99) whereunder costs were automatically payable by reference to the outcome of the litigation reflecting a mathematical relationship between the amount of compensation claimed by the claimant and the amount of compensation offered by the acquisition authority and the amount of compensation determined by the Court. 5 Under the special costs regime, it was only where the amount of compensation determined by the Court was as much as, or greater than, the amount claimed that the acquisition authority was bound to pay the claimant's full costs of the proceedings. Conversely, where the compensation determined was equal to, or less than, the amount of the offer of compensation, the claimant was bound to pay the costs of the proceedings. A middle course outcome was provided where the compensation determined exceeded the offer but was less than the claim in which circumstances the acquisition authority was bound to pay a proportion only of the claimant's costs reflecting the ratio between the excess of the amount of compensation determined over the offer and the excess of the amount of the claim over the amount of the offer. 6 No doubt, these automatic costs outcomes (based upon fixed mathematical formulae) provided significant practical incentives for both compensation offers and compensation claims to be very carefully and advisedly quantified so as to discourage, if not avoid, extravagant claims on the one hand and ungenerous offers on the other. However, this apparent virtue may have worked to the considerable disadvantage of the claimant because of the obvious disparity between a single land owner and the State or State Instrumentality compulsorily acquiring private property for a public purpose. 7 The termination of the special costs regime and its replacement by the LEC Act, s 69 led this Court, at an early stage in the exercise of its jurisdiction to determine claims for compensation in respect of the compulsory acquisition of land, to adopt the following approach to the exercise of the costs discretion conferred by s 69: The resumption of land is a serious matter. It is not apparent to me why a person who has had his land taken by a government or some other statutory authority should, in addition to losing his land, bear his own costs of seeking what in fact turns out to be just compensation: per Cripps J in North Albury Shopping Centre Pty Ltd v Albury Municipal Council (1983) 49 LGRA 215 at 24. 8 This general approach to the exercise of its costs discretion in proceedings to determine compensation for compulsory land acquisition has consistently permeated the decisions of this Court throughout its history, although it has never been translated into a general or inflexible rule that every claimant obtaining a judicial determination of compensation should obtain a costs order in the proceedings resulting in that determination. 9 On the contrary, there have been a handful of cases where the claimant who has obtained compensation but has failed on some of the issues litigated, has only obtained a partial costs order or no costs order: see Rukavina and Robertson v Wagga City Council (1993) 80 LGERA 8 and the cases therein cited. But despite these outcomes in particular cases the Court has, more generally, consistently exercised its costs discretion by recognising the special nature of litigation involving compensation proceedings. For example, in Dalla v The Department of Main Roads (unreported 11 August 1989) where the acquisition authority had submitted that the claimant should not receive his full costs because he had failed on some issues I made the following general observations - When considering the appropriateness of an order reflecting the principle of costs of issues in the present case it needs to be appreciated that in a fundamental sense there is but a single issue raised by such proceedings namely the quantum of compensation and that although there may be particular elements of the claim eg market value , special damage , value to the owner or abortive expenditure the overall single issue is the quantum of compensation payable. Another feature of litigation involving a claim for compensation consequent on resumption is that a claimant who cannot agree upon the amount of compensation with the resuming authority is compelled in order that he be adequately and fairly compensated to invoke the jurisdiction of the Court to obtain a judicial valuation of the resumed land. This of course provides no justification for a blanket rule that every claimant should receive his costs. However it is, in my opinion, a relevant consideration when the Court is called upon to consider the appropriateness of an order reflecting the costs of issues principle. 10 Moreover, the enactment of the Just Terms Act, effectively guaranteeing an entitlement to "just" compensation for claimants and instituting a detailed statutory regime to achieve that and other express objects of that Act (including the entitlement of a claimant dissatisfied with an offer of compensation to seek this Court's determination of the amount of just compensation), may reasonably be perceived as providing some additional reinforcement of this prevailing judicial approach to the exercise of the Court's discretion as to costs. 11 Although the Just Terms Act contains no provision regarding costs of litigation for the judicial determination of compensation payable under that Act in respect of the compulsory acquisition of land, it does provide as a separate component of compensation "loss attributable to disturbance" (see s 55(d)) which concept is defined by s 59 to include the following items: (a) legal costs reasonably incurred by the persons entitled to compensation in connection with the compulsory acquisition of the land, (b) valuation fees reasonably incurred by those persons in connection with the compulsory acquisition of the land, 12 This provides an express legislative recognition that a land owner whose land is compulsorily acquired is liable to incur legal costs and valuation fees "in connection with the compulsory acquisition" and creates an entitlement for that land owner to be compensated for such costs and fees that are "reasonably incurred". 13 Another relevant provision made by the Just Terms Act concerns the payment of interest on the amount of compensation payable in respect of the compulsory acquisition of land: vide ss 49 and 50. This entitlement to interest is liable to be partially forfeited if the Court's determination of compensation "does not exceed by more than 10 percent the amount of compensation offered…." by virtue of the exercise of the power conferred upon the Court by the Just Terms Act, s 66(4) which is in the following terms: If the Land and Environment Court decides that the amount of compensation payable (without the addition of interest) does not exceed by more than 10 percent the amount of compensation offered by the authority of the State, the Court may cancel or reduce the amount of interest that has accrued under this Act in respect of the compensation since the institution of the proceedings. 14 This is a legislative recognition that a litigation outcome of compensation being determined in an amount not greater than 10 percent above the offer of compensation should expose the claimant to the possibility of a partial forfeiture of the statutory entitlement to interest payable on compensation. 15 However, beyond that possible risk to a claimant, I do not think that the existence of such a legislative recognition is intended to influence the manner in which the Court exercises its broad costs discretion in such proceedings. 16 Similar judicial sentiments to those expressed by Judges of this Court were expressed in the following oft cited dicta of Wilcox J, sitting in the Federal Court of Australia, in Banno v Commonwealth of Australia (1993) 81 LGERA 34 at 53 with reference to costs in proceedings under the counterpart Commonwealth legislation (The Lands Acquisition Act 1989): The Court has a general discretion as to costs, but the discretion must be exercised on principled grounds. The Commonwealth has succeeded on all issues. It would therefore seem difficult to justify ordering it to pay the applicants' costs. Moreover, if this was ordinary litigation, the Commonwealth might reasonably expect to obtain an order that the applicants pay its costs. But this is not ordinary litigation. The relationship between the parties giving rise to the litigation did not arise out of their mutual desire; it arose because of a unilateral decision of the Commonwealth to acquire the applicants' land in order to satisfy a perceived public need. The acquisition left the applicants in the position of either accepting the Commonwealth's assessment of the proper compensation or of having the Court rule on its adequacy. Perhaps people in that position should be allowed access to the Court, to present an arguable and well organised case, without being deterred by the prospect of being ordered to pay the Commonwealth's costs if their case proves unpersuasive. I distinguish the situation of resumees who pursue a vexatious, dishonest or grossly exaggerated claim or present their case in such a way as to impose unnecessary burdens on the Commonwealth or the Court. The present applicants' case was arguable. It was presented efficiently and economically, the hearing occupying only two days. 17 Although, as I have earlier noted, there have been cases where this Court has made special costs orders in proceedings involving compensation claims reflecting the varied outcomes of the several issues litigated, these cases are exceptional and generally the costs orders made by this Court in such proceedings reflect the approach encapsulated in the following commentary at par 52A 112 in Ritchie's Supreme Court Practice on Pt 52A r 11 of the Supreme Court Rules ("Costs follow the event"): Multiple issues The propositions that successful parties are generally entitled to costs, and the follow the event rule can combine to produce difficult discretionary considerations where the proceedings involve multiple issues and a party succeeds on some issues and fails on others. Particularly this is so where, eg, a defendant succeeds on issues that occupied the bulk of the time taken by the proceedings. The general approach taken by the courts in these situations is that it will ordinarily be appropriate to award the costs of proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed, unless a particular issue or group of issues is clearly dominant or separable: Waters v PC Henderson (Aust) Pty Ltd (CA(NSW), Kirby, Mahoney and Priestly JJA, No 10678/91, 6 July 1994, unreported, BC9402822) (which approved the proposition stated in this note). 18 An illustration of such an approach to the Court's costs discretion is provided by the following passage from the judgment of Talbot J in Pastrello v Roads and Traffic Authority of NSW (2000) 110 LGERA 223 at 225: There have been instances where the Court has been prepared to make a special order as to costs in the exercise of its discretion (see Rukavina v Wagga Wagga City Council (1993) 80 LGERA 8 at 9; Maloney v Cowra Shire Council [2000] NSWLEC 107 and Nevitoro Investments Pty Ltd v Hawkesbury City Council [2000] NSWLEC 151). Although in Rukavina the Chief Judge was prepared to look behind the success of the applicant in three respects which had an impact on the value of the land, in Maloney and Nevitoro there was a clearly defined and separate issue upon which the applicants had totally failed. This is not such a case. It has been said many times that the compulsory acquisition of land from an unwilling owner is a serious interference with that person's entitlement to quiet enjoyment and generally wide discretion to do with their own land as they see fit. It is a power of the State which is exercised for the public benefit. Very seldom does the resumption work to the benefit of the dispossessed owner. There needs to be a strong justification for awarding costs against an applicant where the effect of making that order is to erode the benefit of the just compensation recovered as a consequence of the Court's determination. It is only in special cases that the Court will deprive the owner of the full benefit of the compensation which is determined as fair and just in the circumstances of the case. An order for costs against the interests of the applicants in this case would clearly have a significant impact on the ultimate amount to be recovered by the applicants. I agree with Mr Webster that the applicants were entitled to investigate the impact that the acquisition had on the market value of the land and to put forward cogent arguments for compensation. The arguments presented by the applicants' experts and by the applicants themselves were not frivolous and fell within the contemplation of the relevant legislation. This is not a case where there should be a special order for costs. 19 Very recently, Talbot J has emphatically restated this approach to the exercise of the costs discretion in Horton v Wyong Shire Council (No 2) [2005] NSWLEC 45 when he said: Although the adversarial nature of the proceedings may have encouraged the applicants' legal representatives to show a degree of exuberance in the projection of their clients claim, nevertheless it cannot be said the claim was vexatious, dishonest or that presentation placed unnecessary burdens on the parties or the Court ( Banno and Another v Commonwealth of Australia and Another 81 LGERA 34). The issues were clearly articulated and addressed. Although the amount recovered by the applicants was less than aspects of their claim, it nevertheless reflected a consideration and determination based on facts and circumstances that were relevant. The primary determining factor was the expected date of release for residential development. I do not agree, as the respondent submits, that the respondent should not have to pay the costs of the proceeding as the applicants sought to reject the compensation offered, argued for a different sum and lost. It is correct that the applicants rejected the compensation offered (which did not aspire to a sum commensurate with the Court's determination until the costs of preparing for hearing were already incurred). They argued for a different sum and were unsuccessful in supporting the highest claim. Nonetheless, but for taking the steps they did by pursuing the objection to the respondent's offer they achieved a significantly better result. It is only in special cases that the Court will deprive a dispossessed owner of the benefit of a costs order particularly when the amount recovered is greater than that offered by the resuming authority at any time and significantly greater than any amount offered prior to the litigation. I am satisfied in the circumstances of this case that Mr and Mrs Horton should have the benefit of a costs order against the Council. 20 Finally, I should refer to the recent decision of Pain J in Yakas v Roads and Traffic Authority of NSW (No 2) [2004] NSWLEC 589 which is relied upon by the Applicant in the present proceeding as encapsulating the proper approach to the exercise of the Court's broad costs discretion in cases such as the present. In Yakas, her Honour accepted the Applicant's argument which she summarised in the following passage at par 10 of her reasons for judgment: The Applicant relied on a long line of authority, commencing with North Albury Shopping Centre Pty Ltd v Albury Municipal Council (1983) 49 LGRA 215 ("North Albury"), Banno and Another v The Commonwealth of Australia and Another (1993) 81 LGERA 34 ("Banno"), Pastrello v Roads and Traffic Authority of New South Wales (2000) 110 LGERA 223 ("Pastrello"), Wollong Pty Ltd v Shoalhaven City Council (2002) 122 LGERA 331 ("Wollong"), which he argued supported the proposition that where an applicant in a compulsory acquisition matter is successful in obtaining a larger award of compensation than that initially awarded by the authority acquiring the land under the compensation process giving rise to the litigation and: (a) the case run by the applicant was arguable or not unarguable and consisted of cogent arguments; (b) the applicant has not pursued frivolous, vexatious, dishonest or grossly exaggerated claims; and (c) the proceedings were not extended due to any procrastination or wasting of time by the applicant; the Court's discretion to grant an award of costs under s 69 of the Land and Environment Court Act 1979 ought to be exercised in favour of the applicant. 21 I would understand the several matters itemised in paragraphs (a), (b) and (c) in the quoted passage as not qualifying the general rule that costs follow the event but as being relevant considerations to the exercise of the costs discretion where the claimant has failed in some aspects of the claim (most generally where the amount of compensation determined by the Court is well below the amount contended for by the claimant, though more than the amount offered, or contended for by the acquiring authority). It is an attempted definition of the "high water mark" of the Court's prevailing recognition of the special position of the claimant on the question of costs in compensation proceedings brought under the Just Terms Act. 22 I have said sufficient concerning the relevant principles for the exercise of the Court's costs discretion and it is time to focus attention upon the features of the present litigation to which the established principles must now be applied. C. THE RELEVANT FACTS CONCERNING THE LITIGATION 23 The Applicant objected pursuant to the Just Terms Act, s 66 to the amount of compensation offered in the Compensation Notice given to him on 27 November 2002. The amount offered was $422,150 (comprising (i) $335,000 (market value); (ii) $7,150 (disturbance); and (iii) $80,000 (injurious affectation)). 24 Although in his Points of Claim, the Applicant had claimed compensation in the amount of $3,042,000 on the hearing of the objection the Applicant contended for an amount of slightly less than $3 million and the Respondent contended for a determination of compensation in the amount of $380,000. (Both these amounts were exclusive of an agreed amount of disturbance of $26,200). 25 My determination of compensation was for the amount of $846,015 (exclusive of the agreed amount of disturbance). 26 Accordingly, the result of the litigation was the award of compensation in the sum of $862,222 compared with the amount of compensation offered in the Compensation Notice of $422,150 (and the slightly lesser amount contended for by the Respondent at the hearing of the Applicant's objection). 27 In other words, the amount of compensation determined by the Court was more than double the amount that had been offered to the Applicant. 28 In the light of this outcome it is obvious that the Applicant was the successful litigant. Moreover, in my judgment, this result is not affected by the fact that the amount of compensation determined by the Court was only about one third of the amount of compensation claimed by the Applicant. 29 The Applicant's success in the litigation is, in my judgment, so clear and decisive that it is not necessary to engage in the type of detailed analysis of the litigation and its outcome that was suggested by Stein JA in Overton Investments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1919 (2001) 113 LGERA 439. In that case, the trial judge (Sheahan J) had ordered that each party pay its own costs, where the amount of compensation determined by the Court was $105,000 compared with the amount of the compensation offered of $727,500 (and the amount of $84,000 contended for by the Respondent at the trial). On appeal at which each party sought an order that the other party pay its costs of the trial, Stein JA dismissing both appeal and cross-appeal made the following observations at 448/449: Nor do I see that it is a simple matter of ascertaining who won or lost the litigation. Compensation determinations are not like awards of damages for personal injury. Obtaining an award of compensation of $100 does not necessarily mean that a landowner wins the litigation. A judge is entitled to look realistically at the litigation, the issues, the way it was conducted and the result, in order to assess who really succeeded and to what extent. In my opinion, the exercise of the discretion by his Honour, although involving the error identified above, was otherwise a sound exercise of discretion. The result of the order that each party pay its and his own costs was a fair one and properly reflective of the litigation. I do not think that this Court should intervene. In any event, if the Court were to re-exercise the costs discretion, I would come to the same conclusion as his Honour. 30 In my opinion, the result in the present litigation was sufficiently clear-cut as to justify the application of the usual costs order of costs following the event. 31 However, it is the Respondent's submission that despite the outcome of the litigation yielding a clear-cut success for the Applicant, when regard is had to the outcome of the issues litigated, the Applicant should be deprived of his full costs (indeed all of his costs) because in my judgment determining compensation I had utterly rejected the valuation evidence that had been given on behalf of the Applicant and therefore it would not be just for the Applicant to be fully compensated for all of his costs in the litigation, nor would it be fair to impose upon the Respondent liability for payment of all of the Applicant's costs. 32 In my reasons for judgment (Constantino v Roads and Traffic Authority of NSW [2004] NSWLEC 517), I held at par 7 that the Applicant's Valuers' opinions were "self-evidently erroneous" and involved an "unwitting deviation from the prescribed statutory measure of compensation". 33 My reasons for so concluding are fully set forth in my earlier judgment and need not be repeated here. It is sufficient to note that what I held to be the "erroneous valuation" opinions of both the Applicant's Valuers derived from their before and after valuation exercises where their "after value" reflected a considerable decrease (in the order of $1.5 million) in the value of the Applicant's residue lands, not by reason of the public purpose proposal for the proposed Motorway (for which purpose part of the Applicant's land had been compulsorily acquired) but by reason of the proposed "open space zoning" of the residue lands by the relevant local environmental plan. 34 Throughout the hearing Senior Counsel for the Applicant had consistently disavowed any reliance upon the Just Terms Act, s 55(f) to support the valuations proffered by the Applicant's Valuers and this position was maintained in his final address. The Just Terms Act, s 55(f) includes the following in the list of relevant considerations in determining just compensation - (f) any increase or decrease in the value of any other land of the person at the date of acquisition which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired. 35 However, immediately following the conclusion of the hearing, Senior Counsel for the Applicant by way of additional written submission (to which Counsel for the Respondent raised no objection) placed alternative reliance upon s 55(f) to support the Applicant's claim for compensation in respect of the decrease in value of the Applicant's residue lands. (The submission was unsupported by any argument and the Respondent did not wish to be heard on it.) 36 In my reasons for judgment, I held at par 50 that there was no factual basis whatsoever for any finding that the decrease in the value of the Applicant's residue lands on account of the proposed open space zoning was caused by reason of the carrying out of, or the proposal to carry out, the public purpose for which the compulsorily acquired land was acquired so as to be claimable compensation pursuant to the Just Terms Act, s 55(f). 37 At pars 51 and 52 of my reasons for judgment I rejected the Applicant's claim to compensation for the decrease in value of his residue lands on account of the proposed open space zoning and I rejected the Applicant's Valuers' before and after valuations. 38 Having rejected the before and after valuations adduced in the proceedings, I next proceeded at pars 59 to 73 of my earlier reasons to determine compensation resulting in the determination of compensation in the sum of $862,222. 39 In so determining compensation I adopted the piecemeal valuation method and determined (i) the market value of the compulsorily acquired land to be $562,585 adopting the valuation opinion of the Applicant's valuer Mr Juniper in preference to the competing valuation opinion of the Respondent Valuer Mr Wood; and (ii) decrease in the value of the Applicant's residue lands by reason of the "Motorway" public purpose (for which part of the Applicant's land was compulsorily acquired) to be $273,410. My determination of this amount was facilitated by the joint opinion of the parties' Valuers (Mr Juniper and Mr Wood) although in so concluding I rejected Mr Wood's opinion that there would be an enhancement of the Applicant's residue lands by virtue of the creation of the proposed Motorway. 40 Finally, I should note that the hearing occupied five days (which is fairly typical for compensation claims under the Just Terms Act). D. THE EXERCISE OF THE COURT'S COSTS DISCRETION 41 In my judgment, the present case does not lend itself to or otherwise justify a special costs order based upon a consideration of the outcome of any discrete issues litigated. 42 The Applicant's claim to compensation clearly involved two elements - (i) the market value of the comparatively small part of the Applicant's land compulsorily acquired for the purposes of the proposed Motorway; and (ii) the decrease in value of the Applicant's residue lands. It was always obvious that element (ii) comprised the greater claim. 43 The Applicant's Valuers and the Respondent's Valuer each adopted the "before and after" valuation method to determine compensation in this case and that method is conventionally applied where part only of land is acquired especially for the purposes of a public road. The flaws in the Applicant's Valuers' opinion that I found were essentially caused by the inappropriate evaluation of the impact on value of the supervening proposed "open space" zoning of the Applicant's residue lands. The error was not that the Applicant's Valuers had regard to that proposed zoning in their after valuation but that they failed to have regard to it in both their before and after valuations because in truth that proposed zoning was common to both exercises. 44 The error was more emphatically revealed when the Applicant's Valuers' valuation opinions were tested against the statutory measure of compensation provided by the Just Terms Act. This is the feature of their error which was emphasised in my earlier judgment and was the cause of my utter rejection of the before and after valuation exercises proffered by the Applicant's valuers. 45 Two further relevant points can be made about the error in the Applicant's Valuers' opinions. Firstly, the existence of the error was readily discernible and secondly, although the error ultimately infected their opinions and led me to entirely reject the before and after valuation methodology, it did not prolong the hearing or extend the valuation evidence adduced at the hearing. 46 The same comment can be made of the belated reliance on the Just Terms Act, s 55(f) by Senior Counsel for the Applicant to support the Applicant's claim for compensation for decrease in the value of his residue lands. It did not extend the hearing by one minute and was readily disposed of in my reasons for judgment entirely upon the basis that the belated reliance on s 55(f) was unsupported by any evidence to establish the required connection between the "proposed open space zoning" and the public purpose for which part of the Applicant's land was compulsorily acquired. 47 My analysis of the effect of the Applicant's Valuers' error and the impact of that error on the litigation is such that it cannot be said that the error constituted a discrete or severable feature of the valuation evidence or that it unreasonably extended the hearing time. Nor ultimately can it be fairly said that the error revealed that the Applicant's claim to compensation for the decrease in the value of his residue lands was extravagant or vexatious. The large amount of that component of the Applicant's compensation claim was the direct product of the manner in which his Valuers undertook their before and after valuation exercises. The error in these exercises was exposed when they were tested by reference to the statutory measure of compensation provided by the Just Terms Act, s 55. Once exposed, the error profoundly flawed those valuation exercises causing me to utterly reject them, and significantly reduced the amount of the decrease in the value of the Applicant's residue lands by virtue of the identification of the proposed open space zoning of the Applicant's residue lands as the source and cause of the majority of that decrease in value. 48 For the foregoing reasons, I do not think that the exercise of the costs discretion required in the present case, justifies an order based upon the outcome of a particular issue. 49 However, I do not think that the order for the Applicant's costs should extend to the costs of two valuers. Their valuation opinions, though individually reasoned, were not significantly different either in the result or in the reasoning. Since I accepted Mr Juniper's valuation opinions in determining the amount of compensation, the costs order should be limited to his expenses. 50 The Respondent also submits that the costs order should not allow for two Counsel representing the Applicant. I do not think a case has been made out that I should order that those costs be limited to one Counsel only. 51 For all the foregoing reasons, I make the following order:- The Respondent shall pay the Applicant's costs in the proceedings in the sum agreed, or failing agreement, as assessed but those costs shall allow for only the one valuer witness.

Constantino v Roads and Traffic Authority of New South Wales

At a glance

Court

Decision date

Before

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Judgment (11 paragraphs)

Parties

Cases Cited (11)

Cited By (3)