Flotilla Nominees Pty Ltd v Western Australian Land Authority & Anor [2003] WASC 122

Flotilla Nominees Pty Ltd v Western Australian Land Authority & Anor [2003] WASC 122 - WASC 2003 case summary — Zoe

[96]

63 There was an issue joined between the parties concerning the potential groundwater supply which could be drawn from bores on the subject land. The plaintiff called a hydrologist, James Reginald Davies, who had carried out work and prepared a report in June 1993 for LandCorp. The purpose of the report was to consider whether or not there might be problems associated with contamination from any industrial operations on the subject land if it became an industrial site. He sank some bores, and although his report was not directed to water quality or water quantities, he was nevertheless called by the plaintiff and was able to provide information about water quality and quantities in relation to the subject land. So far as water quality is concerned, much of the water which could be sourced within the subject land via bores was of a quality fit for human consumption. As for the rest, it was suitable for farm animals. Mr Davies concluded that based upon the useage figures published by the Water Authority in relation to Perth properties, a combination of rainwater and water supplied from underground the subject land via bores would be sufficient to meet the needs of the 244 lots. Mr Passmore, a hydrologist called for the defendant, disagreed. However, Mr Passmore did agree that 60,000 cubic metres of water could be drawn annually from bores. This amounts to 60 million litres which could be supplied to the sites to supplement rainwater supplies. There were issues raised, for example, whether the Perth useage figures were appropriate for the lot sizes in question, but in my view it is not necessary to become bogged down into that kind of detail. The issue is whether or not a hypothetical purchaser would have concluded that the WAPC was likely to have granted subdivisional approval in relation to the hypothetical application. It seems clear that a hypothetical purchaser would have noted that planning legislation for small rural holdings without reticulated water, subject to a condition that residents install a 92,000 litre rainwater tank, would permit such development. In my view, it is likely that if all else favoured subdivisional approval, then in relation to water the only condition which would be imposed in relation to the hypothetical subdivision would be a condition requiring that owners install a 92,000 litre rainwater tank to supplement the reticulated bore water to be supplied by the developers.

[116]

80 The development of Drummonds Cove, which is to the south of the subject land, was referred to by Mr Logan, but the sales evidence from that development I find not to be comparable at all. It is a residential subdivision of much smaller lots and much closer to Geraldton. Mr Logan said, and I find, that Drummonds Cove was a superior location. However, even the Drummonds Cove development did not reveal a sales rate of 40 lots per annum. After eight years, only 100 hectares of the 317 hectare site had been sold. This provides no support for the assumption which underlies Mr Logan's opinion, which is that all of the lots in the hypothetical development would have been sold within six to six-and-a-half years. All of the other residential rural developments in the area (save one) sold at the rate of no more than 5 lots per year. The one exception was the West Bank development, which was 17 kms to the south of Geraldton and which was also located on the coast. It only sold 11 lots in a year. I find that even with superior marketing and with the greater natural advantages that the subject land had, that lots could not be sold at 40 per year. This finding is supported by evidence led by the defendant. Mr Elliott extracted information from the Valuer General's office for comparable small lot sales in the Geraldton, Greenough and Chapman Valley local authorities. He identified five zoning classifications, being "special rural", "general farming" (less than five hectares in area), "rural residential", "low density R2/R5" and "special use - restricted use dune preservation coastal living". Mr Elliott then identified all lot sales in those zones of a size between 5,000 square metres and five hectares. This information was gathered for a five-year period from 1995 to 1999 and revealed a total of 153 sales in all of these zones within the boundaries of all three local authorities referred to above. From this information it was shown that there was an average of 30.6 lots sold per annum over the five-year period. Mr Elliott then assumed that the hypothetical development on the subject land could attract a reasonable proportion of market share, and adopted a sales rate of 13 lots per annum representing just over 40 per cent of all of the annual sales made through the period mentioned in the three areas mentioned. I accept Mr Elliott's opinion, and find, that this is the highest rate at which the lots would sell in the hypothetical subdivision.

[178]

22 Secondly, a special costs order might be made in relation to the hourly rates provided for an item in the scale. An hourly rate might be thought to be too low for some reason. A special costs order will not be necessary if the amount to be claimed is no more than the maximum dollar amount specified for that item. So, for example, item 8(b), which relates to the giving of particulars of a pleading, provides for a maximum dollar amount based on the assumption that a junior practitioner will carry out the work and take up to five hours to complete such work. It is quite proper on taxation under that item to show that a senior practitioner did the work, but in that case the senior practitioner in the ordinary case would have to complete the work in less than five hours to stay within the dollar limit specified in the scale for that item. If a successful party considers that much more than five hours had to be spent on the task and believes that it can be demonstrated that this was reasonably necessary on a taxation, and also wishes to demonstrate that all of the work was performed by a senior practitioner and that the remuneration should be at the senior practitioner's rate, then a special costs order should be sought. The order that might be sought might be that the "costs in relation to item 8(b) be taxed without regard to the limit in the scale and that the costs be taxed at the senior practitioner's rate" (or "at the rate of $x per hour"). The need for an order of this sort would be necessary if a costs agreement under s 59 of the Legal Practitioners Act has been entered into by the successful party, the hourly rates in the agreement are higher than in the scale, and the party wishes costs to be taxed at that rate. However, the details of the agreement, and in particular the hourly rate which the party applying for a special costs order wants to apply, should be disclosed when the application is made. In my opinion, it is not correct for a party to seek an order lifting limits in the scale without disclosing to the Judge the details of the agreement or the hourly rate which the applicant wants to use on taxation (and only later inform the taxing officer of the rate). I should also add that there should be no expectation that, as a matter of course, rates in the costs agreement which are above scale will be ordered to be the rates to apply in taxation as between party and party. There would have to be evidence justifying the higher rate. The whole point of the existing scale is that the rates are struck by reference to what is being charged within the profession. It is true that the hourly rates can only be an average or mean of the upper rates determined in the survey, and there will be some cases where the unusual complexity or importance of the case warrants the special expertise of the practitioner involved and warrants an increase in the hourly rate. In some cases not involving unusual complexity or importance, the higher rates paid will not be recoverable. A party is always entitled to the luxury of retaining the highest paid practitioners in the conduct of their case, but they cannot always expect to recover these costs from the other party. If the hourly rates in the scale are thought by parties or practitioners to be too low for work which is not of unusual complexity or importance, then submissions should be made to the Legal Costs Committee to increase the rates in the scale.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (211 paragraphs)

Flotilla Nominees Pty Ltd v Western Australian Land Authority & Anor [2003] WASC 122 (25 June 2003)

Parties

Legislation Cited (2)

Cases Cited (21)