Coryule Pty Ltd v Westernport Regional Water Authority (No 8) (Land Valuation) [2010] VCAT 1230

1. I order that Westernport Regional Water Authority pay to Coryule Pty Ltd its costs of and in relation to these proceedings with the quantum to be agreed between the parties or, in default of agreement, to be taxed by the Costs Court on the following basis:
   1. Scale "D" on the County Court Scale of Costs and on the basis of solicitor and client costs.
   2. To include reserved costs and with certificates in relation to the following items:
      1. the preparation of written submissions in relation to previous hearings including preliminary or interlocutory hearings;
      2. certificate that the rate of fees of the expert witnesses Mr Trevor Kitchin, Mr Robert Gray and Ms Anne Reidy at $150.00, $120.00 and $245.00 per hour respective are appropriate;
      3. certificate for the tribunal book in the sum of $1,666.28; and
      4. that these proceedings were appropriate for the engagement of senior counsel to represent the claimant company.
2. The said authority is ordered to pay Coryule Pty Ltd its costs of and in relation to the application for costs heard on 30 July 2010 including the costs of the preparation of the written submission presented thereat with a certificate for the appearance of counsel on that occasion.
3. If the parties are able to agree as to an amount to be allowed as compensation by way of interest they are to advise the registrar of the tribunal of the figure agreed upon within 14 days of the date of this order failing which the authority has a further 7 days within which to file and serve on the solicitors for the claimant a written submission setting out what amount, if any, it agrees should be allowed as compensation in the way of interest stating the amount it agrees to, how that amount is arrived at and made up, the extent to which the figure it agrees to is less than $6,148.39 stating with particulars each deduction from that sum and, in the event that the authority considers that no interest should be payable, stating its reasons for that position. In the event of there being no agreement in relation to interest and of such a written submission being filed and served on behalf of the authority, Coryule has 14 days thereafter in which to file and serve an answering written submission. In the event of there being no agreement notified to the registrar and no further written submissions on behalf of the authority as provided for in this direction, the question of interest will be determined on the basis of information currently available to the tribunal.

Mr Michael Roberts, barrister, appeared on the instructions of Best Hooper solicitors for the applicant company. He presented written and oral submissions.

Mr Ragu Appudurai, solicitor of the firm of Russell Kennedy solicitors appeared for the respondent authority. He made oral submissions.

A claimant's application under s 80(1) of the Land Acquisition and Compensation Act 1986 (LAC Act) for determination of a disputed claim in relation to compensation.

Claim under s 155 of the Water Act 1989 for compensation for pecuniary loss or expense arising as a consequence of the performance of Westernport Regional Water Authority of its functions.

1. This case, involving two proceedings, has been on foot before the tribunal, in one way or another, since 2006. It has a long and complex history. I believe it to be the hope of the parties that this current aspect will be the final matter that the tribunal needs to deal with in connection with it.
2. This final matter is an application by the claimant Coryule Pty Ltd (Coryule) for orders in relation to costs of these proceedings.
3. The matter actually listed for hearing on 30 July 2010 refers to proceeding L7/2006. However, the distinction between the two proceedings has become obsolete. Orders are sought to cover the legal costs incurred by Coryule in relation to both proceedings. Proceeding L7/2006 was the original matter before the tribunal. Both have been dealt with together, since the commencement of the second proceeding. At the hearing on 30 July 2010 no specific distinction was drawn between the two proceedings. On the contrary, it was implicit that costs in relation to the two matters were being dealt with together.
4. Mr Appudurai appeared on behalf of the Westernport Regional Water Authority (the authority). He made it clear at the outset that Coryule is entitled to orders in relation to its legal costs of these proceedings. The remaining dispute was as to the basis on which such costs should be assessed.
5. Coryule contends that it should be entitled to its costs of both proceedings on the Supreme Court scale assessed on the basis of solicitor and client costs rather than on the basis of party v party costs (or for that matter, indemnity costs). It was contemplated by the parties that they may be able to agree in relation to the quantum of costs, if I laid down certain parameters, such as if I were to clarify what scale would be appropriate, and what basis should be applied. This would assist them in reaching agreement or, in the event of them failing to agree, would be of assistance in relation to the taxation of a bill of costs that might ultimately need to be taxed by the Costs Court. In this connection Coryule has asked that certain aspects of its costs should be certified by the tribunal to be appropriate. For example, it has been represented by Mr Greg Garde QC appearing without a junior. Coryule seeks my certificate that this was a case appropriate for the appearance of senior counsel. I will deal with this and other questions in relation to certificates at a later point.
6. It is submitted on behalf of the authority that the costs of Coryule in relation to these proceedings should be assessed on a party v party basis and on the basis of Scale "D" of the County Court scale of costs. That is the highest scale of County Court costs.
7. As to the certificates, there are some points in relation to which there is agreement between the parties, but there is disagreement on others. As to some the authority contends that the matters in question should not be certified and that their allowance or assessment should be left to the Costs Court on taxation, assuming such taxation becomes necessary.
8. As to the costs generally, the authority submits that Coryule should have its costs down to and including 15 September 2009 but not thereafter. Indeed it contends that Coryule should be liable to pay or to set-off the authority's costs from that date assessed on an indemnity basis. That submission is made on the basis of a so-called "Calderbank offer"[1] contained in a letter from its solicitors dated 16 September 2009. I will need to discuss this matter further.
9. It is a further contention of the authority that its contribution to the costs of Coryule, even up to 15 September 2009, should be discounted by a percentage on account of what the authority alleges to have been unsatisfactory aspects of the conduct of these proceedings and the claims on behalf of Coryule.
10. Lastly, there is the question of the costs of this current application in relation to costs. Coryule contends that the authority should pay its costs of and in relation to this application whereas the authority submits that each party should pay their owns costs thereof.
11. One further matter was raised at the hearing. The part of the case with which I have previously been involved concerned a question of compensation for legal and like expenses (not to be confused with legal costs of these tribunal proceedings). My participation involved setting parameters for the assessment for such compensation but the parties were unable to agree, notwithstanding those parameters, as to quantum. That question was determined by referring the question to Mr Malcolm Howell, Senior Member, acting as a special referee pursuant to s 95 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). He assessed the compensation and issued a certificate in relation thereto. I subsequently made an order on 4 December 2009[2] in accordance with the certificate of Mr Howell. However, the hearing on 30 July 2010 was the first opportunity any party had to make any submission to me since before the appearance before Mr Howell that led to his certificate. Accordingly, Coryule had not had an opportunity to apply for interest on compensation.
12. Such compensation is not the same thing as the question of costs of the proceedings. Nevertheless, it was agreed that I should also deal with this question. In broad terms Coryule seeks interest amounting to approximately $6,000.00 whereas the authority considers the figure ought to be in the order of $1,500.00.

1. Coryule sought the hearing actually conducted on 30 July 2010 much earlier in the year. It anticipated a hearing several months earlier than it actually occurred. In preparation it filed and served an affidavit of the solicitor acting on behalf of Coryule together with a 20 page written submission prepared by Mr Michael Roberts, the barrister who appeared for it on 30 July 2010. These documents were provided to the authority's solicitors approximately four months before the actual hearing. They did not deal with the question of there having been a "Calderbank offer" from the authority.
2. On the day before the hearing on 30 July 2010 the solicitors for the authority attempted unsuccessfully to contact Mr Roberts by telephone. That was shortly after 1.00 pm. It was followed up with an email message at about 5.05 pm on the same day. The purpose of these communications were to give notice that the authority intended to raise and rely upon its Calderbank offer at the hearing on the following day and to specify various items of correspondence that it intended to rely upon in that connection. Although the saying "better late than never" may have some merit it does not follow that late cannot be too late in the circumstances. In my opinion these belated communications to give notice were too late. I have some sympathy with the complaint raised by Mr Roberts at the commencement of the hearing on 30 July that it was unfair that he should be confronted with what amounts to a new issue upon such notice when Coryule had provided its written submissions, not dealing with that issue, some four months before. He also complained that he did not know which items of correspondence were being relied upon and that he was unfamiliar with them, having not been briefed with them.
3. It was submitted, on behalf of the authority, that he should have been so briefed. That may well be so but it was also obvious, since long before, that the submissions did not deal with that question.
4. I agree that this situation put Mr Roberts and his client at an unfair disadvantage, and indeed, into an awkward dilemma. Both parties were anxious to have this final matter determined and nobody wanted the case to be simply adjourned as this would waste the costs of the day and, having regard to delays before the tribunal at the moment, would defer finalisation for a considerable period.
5. Ultimately the matter was resolved by standing the case down for a little over an hour to afford Mr Roberts an opportunity to identify and read the correspondence concerned and to determine what course should be followed in relation to the further hearing of the application.
6. In the event the hearing proceeded and occupied the rest of the day including an extension beyond the normal time of adjournment approximately equivalent to the time forfeited in the morning during which the hearing stood in abeyance.
7. These proceedings have had a lengthy, complex and difficult history and the hearing on 30 July 2010 proved to be difficult and complex, amongst other things because of the need to recall and debate certain aspects of the previous long and difficult course of the proceedings.
8. I will have occasion to refer to this preliminary matter hereafter.

1. As previously noted, the authority has submitted that costs ordered to Coryule should be discounted by an unspecified percentage on account of alleged deficiencies in relation to procedures followed by Coryule. It is left to me to fix the percentage if I am persuaded that there should be such a discount.
2. As I have said, these proceedings have had a long and tortuous history. Some significant criticisms have previously been made in relation to procedures employed, or not carried out. Some have been significant in that they have threatened the fair conduct and determination of the matters in dispute and which have caused delay and wasted time and resources. I am not going so far as to say that the conduct of proceedings on behalf of Coryule has been beyond all criticism at all times. It may be difficult to attain so high a standard as that throughout a long and difficult history of these proceedings. However, I am not satisfied that any shortcomings were of a serious nature that could not be remedied relatively promptly and simply without any considerable waste of time, effort and resources. I am not satisfied that there should be a discount on this account of the legal costs that might otherwise justly be awarded in favour of Coryule.

1. It was argued on behalf of Coryule that costs should be on the Supreme Court scale. In this connection reliance was placed on the circumstance that, in relation to the assessment of compensation for legal and like expenses (but not costs of this tribunal proceeding), an order was made for costs on the Supreme Court scale and, indeed, on a solicitor and client basis. Nevertheless, I regard the costs in relation to the tribunal proceeding to be a different and separate question. Not all of the matters that persuaded us[3] to specify the Supreme Court scale for the compensation apply in relation to the now relevant costs of the tribunal proceedings. It is true that the Land Valuation List is a specialist and expert tribunal and that this was by no means a simple case. Nevertheless I have determined that the costs should be assessed on the basis of Scale "D" of the County Court Scale of Costs.

1. I consider that the costs should be assessed on County Court Scale "D" but on the basis of solicitor and client costs rather than party v party costs. In this connection I bear in mind the nature of these compensation proceedings where a claimant has not initiated the circumstances leading to the proceedings, nor has it defended them inappropriately inasmuch as it is the claimant rather than the respondent. It is not a volunteer. It is entitled to compensation that is full and fair in the circumstances rather than niggardly on the one hand or overgenerous on the other. I think that the same approach should apply in relation to the assessment of a claimant's legal costs where it has incurred such costs to secure its just compensation. The question of costs is in the discretion of the tribunal and each case must be assessed on its own merits. However, I think the claimant ought to be entitled to full costs reasonably incurred in protecting its rights and that solicitor and client costs are appropriate in the circumstances of this case. In coming to this conclusion I have borne in mind the references made in paragraphs [24] - [25] of the written submissions presented by Mr Roberts including the cases he there refers to and quotes from in relation to the question of costs pertaining to proceedings of this sort. He there quoted from the judgement of Osborn J in Murdesk Investments Pty Ltd v Roads Corporation[4] paragraphs [23] - [25] and to Mario Piraino v Roads Corporation[5]; Coastal Estates Pty Ltd v Shire of Bass[6]; and Minister for the Environment v Florence[7].

1. I have mentioned the letter of the solicitors for the authority dated 16 September 2009. The letter is marked 'WITHOUT PREJUDICE SAVE AS TO COSTS'. Amongst other things it contained the following:

... I am instructed to offer the sum of $33,500.00 (in addition to the sum of $12,597.80 already paid to your client) in full and final settlement of the compensation for legal expenses ordered by the tribunal.

The sum of $33,500.00 will be paid within 28 days of the receipt of written acceptance of this offer on behalf of your client.

This offer will remain open to be accepted until cob of 2 October 2009.

The corporation otherwise refers to and relies upon the content of my letter to you of 19 January 2009.

I am instructed to give you notice that in the event that your client rejects this offer and the matter proceeds to hearing on 30 October 2009, this letter will be produced on the question of costs with an application being made that your client pay the corporation's costs on an indemnity basis on the date of this letter in accordance with the principles set out in Calderbank v Calderbank [1975] 3 All ER 333.

1. Submissions as to this aspect were made orally on behalf of the authority with an oral response on behalf of Coryule. I was referred to cases in this connection, in particular Hazeldene's Chicken Farm v Victorian Workcover Authority (No 2)[8] and Ipex ITG Pty Ltd v Melbourne Water Corporation (No 6)[9]. I do not propose to here set out the law in relation to Calderbank offers but I was not referred to what appeared to me to be relevant sections of the VCAT Act at ss 111 - 114, particularly reference to s 112. I note however that Mr Roberts did not deal with this topic in his written submissions prepared some months ago and that he responded orally to submissions on this topic without having what might be regarded as normal notice and opportunity.
2. I refer to s 112. It applies, in accordance with its subs (1), if a party has made a written offer to settle in terms that comply with ss 113 and 114 where the other party does not accept the offer within the time that the offer is open and where the tribunal is of the opinion that the final result is not more favourable to that party than the offer. The offer in the letter of 16 September 2009 does appear to comply with ss 113 and 114.
3. Section 112(2) provides that:

... unless the Tribunal orders otherwise, a party who made an offer [where the section applies] is entitled to an order that the party who did not accept the offer pay all costs incurred by the offering party after the offer was made.

1. Subsection (2) does not specifically refer to indemnity costs, nor does it say anything specifically in relation to the costs of the party who declined to accept the offer after the date of the offer. It should be noted, and it is common ground between the parties in the present case, that this provision in relation to the post-offer costs of the party who made the offer is not an invariable rule but is subject to the more general rule that costs are in the discretion of the court or the tribunal being called upon to make an order. Even if I was satisfied that the offer complied with all the requirements of a Calderbank offer, or all the requirements of s 112, I would not be obliged to apply s 112 against Coryule and in favour of the authority if, as a matter of discretion, I thought that would be against justice or if I thought the interests of justice in all the circumstances indicated otherwise. That is so in relation to Calderbank offers generally and is specifically so in relation to what is called the statutory equivalent of a Calderbank offer provided for in s 112. Indeed, s 112(2) specifically provides for the tribunal to "order otherwise" in a particular case.
2. I note that there are provisions in the Supreme Court Rules roughly equivalent to s 112 and that some decided cases indicate that the Calderbank rule can be applied in the court as distinct from the statutory provision that is there applicable. I do not think that I need to go into that point for present purposes.
3. Nevertheless, cases indicate that there is an onus on the party that made the offer and who seeks to rely on the Calderbank rule to establish that the rejection or failure to accept the offer was unreasonable in the circumstances, see Mount Lawley Pty Ltd v Western Australian Planning Commission[10] and cases mentioned in annotation [52,790.20] in Planning and Environment Service Victoria published by Butterworths Legal Publishers in relation to s 112. I notice a reference there to paragraph [92] of the Mount Lawley case for the principle that an offeree does not unreasonably reject a Calderbank offer if there is some reasonable doubt about its value.
4. Section 112(3) provides:

(3) In determining whether its orders are or are not more favourable to a party than an offer, the Tribunal-

(a) must take into account any costs it would have ordered on the date the offer was made; and

(b) must disregard any interest or costs it ordered in respect of any period after the date the offer was received.

1. In this case the offer was for $33,500.00 in full and final settlement of the compensation for legal expenses ordered by the tribunal. There is no specific mention there of costs and the only other reference to costs I find in the letter is in the last paragraph (which is the last one quoted above in paragraph [25]) which reference relates to the party's intention to claim indemnity costs in the event of the Calderbank offer becoming relevant. That is not a reference to Coryule's costs of the proceeding up to 16 September 2009 and I do not think that the letter indicates that the $33,500.00 is in addition to Coryule's costs up to that date. On the contrary, I consider that the expression "in full and final settlement" means that the claimant's costs to date are included in the sum of $33,500.00. I consider that to be the ordinary meaning of that expression, at least among lawyers, and that is what I would ordinarily understand the expression to mean.
2. It is true that the sentence goes on to say that the full and final settlement is of the compensation for legal expenses ordered by the tribunal. I take this to mean the compensation for legal and like expenses but not the costs of the tribunal proceedings. If it is meant to exclude Coryule's costs of the tribunal proceedings and that such costs will be met as an addition to the $33,500.00 it does not say so explicitly. I conclude that the offer of $33,500.00 is inclusive of costs to that date, and if it is not, then I regard it as ambiguous and unclear on that important point. A Calderbank offer or an offer subject to similar statutory provisions must be, in terms of Perry v Comcare[11], "clear, concise, certain and capable of acceptance". Even without authority I think it is obvious that clarity and certainty are essential.
3. I therefore conclude that this offer of $33,500.00 in full and final settlement either included Coryule's cost to 16 September 2009 or that it fails as a Calderbank (or equivalent) offer for lack of clarity and certainty.
4. It seems to me that s 112(3)(a) contemplates that the offer must be a "all in" or "full and final settlement" offer that includes costs inasmuch as the subsection provides that costs to the date of the offer must be taken into account in assessing its favourableness to the party receiving the offer.
5. In applying all this to the $33,500.00 offer I will speak in round terms. It is contended for the authority that the compensation awarded by the tribunal pursuant to the certificate of Mr Howell was, in round terms, $25,000.00. That is less than $33,500.00 by $8,500.00. That figure of $25,000.00 makes no allowance for interest.

38 The exact figure, that I have rounded to $25,000.00, was $24,944.20. Coryule claims interest thereon pursuant to ss 52 and 56 of the Land Acquisition and Compensation Act 1986 in accordance with the prescribed rate pursuant to s 2 of the Penalty Interest Rates Act 1983 at a rate of 12% p.a.[12] from 20 October 2007 until 31 August 2008 and at 11% p.a. from 9 September 2008 to 16 December 2009[13]. Those two figures are $2,598.58 and $3,549.81 respectively giving a total of $6,148.39. Reverting to round figures, $25,000 plus $6,000.00 equals $31,000.00 which, as is pointed out for the authority, is less than $33,500.00. For the purpose of this comparison the rounded figure for interest is taken at its highest notwithstanding that the authority submits that a lower figure (if anything at all) should be rewarded in relation to interest. The point here, from the point of view of the authority, is that including all that Coryule claims the figure of $33,500.00 is not exceeded.

1. Of course the figure of $25,000.00 does not represent the total of compensation, or even total compensation for legal and like expenses. If the total amount of compensation recovered is considered, then the difference of $2,500.00 is relatively small and would constitute a small percentage, not only of the total claim but also of the total recovered. Nevertheless, it did represent a deficiency between the amount recovered and the offer, even with compensation included.
2. However, it takes not account of costs of the proceedings before the tribunal down to 16 September 2009. Without being able to give a precise figure, I am satisfied that these costs would considerably exceed not only the difference of $2,500.00 if the total interest claim was included, but also the difference of $8,500.00 if interest is disregarded.
3. Accordingly I find that, quite apart from any uncertainties about the offer or other defects, I am not satisfied that the result achieved was less favourable than the offer, and I am no satisfied that Coryule was unreasonable in rejecting or failing to accept the offer. While I think there are other reasons connected with the complexity and history of the proceedings that would support that final conclusion, I will not go into them as I think it is not necessary to rely upon them.
4. Accordingly I make no order in favour of the authority pursuant to s 112 VCAT Act or pursuant to Calderbank principles and the entitlement of Coryule to legal costs on and after 16 September 2009 survives.

1. Coryule has asked that I certify certain items and in some instances certain cash amounts, in relation to the costs that it has incurred of and in relation to these proceedings. In some instances these certifications are necessary to indicate to the parties and, if necessary, to the Costs Court that certain expenses were appropriately incurred or incurred at appropriate levels. In other instances the certificates are sought to clarify such points, even if they are not essential and where they relate to matters that could be left for assessment, if necessary, by the Costs Court.
2. I think that there is merit in my giving indications on some of these things having regard to the extensive knowledge and experience that I have acquired in relation to conduct of these proceedings. Another point, relied upon by Coryule, is that the Land Valuation List of the tribunal is a specialist and expert tribunal and as such its guidance or decision on some points may well be of assistance, not only to the parties, but to the Costs Court. The Costs Court can be regarded as a forum that is expert in costing but which is generalist in that it deals with questions of costs in relation to a broad range of varieties of litigation.

1. I am asked to certify the fees charged by three expert witnesses or, alternatively, the hourly rate at which they have charged for their services. The three witnesses are Mr Trevor Kitchin of GR Consulting Pty Ltd/TKK Enterprises Pty Ltd, Mr Robert Gray of Gray Consulting Pty Ltd Agronomist and Ms Anne Reidy of Grace's Costs Consultants. The hourly rates charged in respect of each of them is $150.00, $120.00 and $245.00 respectively. I am prepared to certify that these hourly rates are appropriate for these witnesses. I do not propose to certify the total fees charged by these witnesses. I leave that for assessment, if necessary, by the Costs Court.

1. At various stages in the course of these proceedings, including the main hearing and also the hearing on 30 July 2010, parties have prepared and presented written submissions. I am asked to certify that the fees charged for the preparation of these submissions should be allowable in favour of Coryule. It may not be necessary to do so, but the purpose of seeking such certificates is to avoid having to debate the issue at a later stage. This is done on the basis that I am in a better position to say whether the preparation of such written submissions was appropriate, helpful or necessary.
2. It is common practice before the Planning and Environment list and the Land Valuation list of this tribunal for written submissions to be prepared and presented. Generally speaking this is a very useful practice. It enables submissions to be recorded and received in a permanent form whilst still allowing discussion, debate and clarification as may be necessary. It records what parties wish to argue and it provides that in permanent form to the tribunal and also to other parties. It can also mean that opposing parties have full knowledge of what is to be argued, as happened in relation to the written submissions presented by Coryule on 30 July 2010, a copy of such written submissions having been provided to the opposing parties several months before.
3. The work involved in the preparation of such submissions requires an orderly setting out and presentation of the submission and arranging for them to be written down but should not include research and other preparatory work which would need to be done prior to a hearing whether submissions were to be made orally or in writing or partly in writing or partly orally.
4. Generally speaking the preparation of written submissions is valuable although occasionally such documents are seen which are not helpful by being excessively long or insufficiently relevant. By and large that is not so, and I do not recall any misgivings of that sort in relation to the submissions presented at various stages in the course of these proceedings. I consider the preparation of the written submissions, including those presented on behalf of Coryule at the hearing on 30 July 2010, to be warranted and worthy of the certificates sought.

1. At an early stage in these proceedings another member of the tribunal gave a direction that a tribunal book should be prepared with a view to making the extensive documentation more manageable. It is common ground between the parties that this item should be certified and allowed in the sum of $1,666.28.

1. In the hearings forming part of these proceedings (except for the hearing on 30 July 2010) Coryule was represented by Mr Gregory Garde QC who appeared without a junior. I would take it that this meant that he was involved in more work and would have been the case if he was able to share or delegate some tasks to a junior. I am asked to certify that this case was one appropriate for the appearance of senior counsel. In doing so I note that the original claim involved many aspects of compensation apart from the compensation for legal and like expenses which I have been involved with. A compulsory conference ultimately achieved resolution of those other issues leaving the question of compensation for legal and like expenses to be determined by Mr Robinson and myself. Even this aspect proved to be of some considerable complexity and difficulty in terms of its history and facts as well as some other questions of law and procedure. As previously noted, the Land Valuation List is a specialist and expert tribunal, not only in relation to land valuation as a discipline, but also in relation to the law pertaining to it. Compared with many jurisdictions this is one in relation to which there is a relatively limited number of practitioners able to bring significant knowledge and experience to a case and who are consequently able to deal with a case of some complexity without spending the amount of time and trouble that would be occasioned to an advocate lacking such knowledge and experience. I have come to the conclusion that the briefing of senior counsel was justified for this case and I will certify accordingly.
2. However, I am also asked to certify the rate of fees for senior counsel at $7,500.00 per day or $750.00 per hour. Whilst I will certify for the employment of senior counsel, I do not propose to certify for the quantum of the fees or rates for fees. I leave that to be determined, if necessary, by the Costs Court.

1. Although it has been contended on behalf of the authority that each party should bear its own costs of the hearing as to costs, I consider that Coryule should have an order for the costs of and in relation to that hearing in its favour and I consider the preparation of the written submission and the engagement of a barrister for that hearing to have been appropriate.

1. I am aware that the parties are anxious for all outstanding matters in relation to these cases, except for a taxation of costs if that becomes necessary, to be finalised by me at this stage. It is for that reason that they agree that I should deal with the question of interest. However I find myself with a difficulty in that respect. I have already noted that Coryule claims $6,148.39 as interest and I have set out how that figure is arrived at. I understood that the representative of the authority submitted that there should be no interest, or if any that the quantum should be less than the amount claimed. I understood the figure suggested to be in the order of $1,500.00. I understood one of the proposed deductions to be in respect to the period from 16 September 2009 onwards. I further understand that the authority should not be required to pay interest in respect of amounts other than those paid for by Coryule and for the periods that it was out of pocket on account of such payments.
2. Unfortunately I find myself insufficiently clear on the basis upon which the authority contends that no interest should be paid, the amount it considers to be appropriate if interest is to be allowed, how that figure is constituted and made up and as to what aspects of the total claim of $6,148.39 require reductions. Putting it another way I am insufficiently clear, at this stage, why and to what extent the authority contends that the figure sought should be reduced.
3. In these circumstances I think I must give the party a further opportunity to address this question by written submissions. I will give directions accordingly.

[1] This expression derives from the case of Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586; [1976] Fam 93.

[2] Coryule Pty Ltd v Westernport Regional Water Authority (No 7) (Land Valuation) [2009] VCAT 2504.

[3] At the relevant time I was sitting with my then colleague Mr Ian Robinson, Valuer Member.

[4] [2007] VSC 175.

[5] [1991] VicRp 90; [1991] 2 VR 534,541-2.

[6] [1994] VicRp 13; [1994] 1 VR 210, 213.

[7] (1979) 21 SASR 108, 134-5; 45 LGRA 127, 149-150.

[8] [2005] VSCA 298; (2005) 13 VR 435.

[9] [2009] VSC 571.

[10] (2007) 157 LGERA 1; [2006] WASC 82.

[11] (2006) 150 FCR 319; 89 ALD 526; [2006] FCA 33 at [49].

[12] Section 52 of the LAC Act provides:

(1) The Governor in Council may from time to time, by Order published in the Government Gazette, determine the rate of interest to be paid in respect of unpaid compensation under this Act.

(2) The rate of interest determined by the Governor in Council must not exceed the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983.

Coryule points to the Government Gazette of 17 February 1988 for the relevant Order.

[13] I am aware that this date is three months later than 16 September 2009 but this discrepancy is not significant for the comparison I am making here.