Applicable Principles Relating to an Award of Costs in Compulsory Acquisition Cases
31The issue at the heart of this application is the correctness of what has been described as a "general principle" (Walker Corp Pty Ltd v Sydney Harbour Foreshore Authority [2010] NSWLEC 27 at [35] quoted in Taylor v Port Macquarie - Hastings Council ; [2010] NSWLEC 153; (2010) 175 LGERA 189 at [20]), namely, that a person who has had their land acquired by compulsion should generally not bear their own costs and should be permitted to access this Court to present an arguable and well organised case undeterred by any prospect of suffering an adverse costs order should the case fail.
32Mr Tim Hale SC, appearing for Ms Halley, endorsed this "general principle" and submitted that only when the applicant presents an unarguable and disorganised case would the Court consider exercising its discretion to award costs against the applicant. To hold otherwise, he contended, would be to overturn longstanding established precedent and principle in this and other courts.
33Mr Richard Lancaster SC, appearing on behalf of the Minister, did not submit that the case had been conducted in a manner that could properly be described as shambolic or wholly lacking in merit. Nevertheless, he argued that when regard was had to the current state of authorities and to the relevant statutory framework governing awards of costs in compulsory acquisition cases in this Court, it was open to the Court to exercise its discretion to award the Minister costs as sought in the present case.
34This was because, on any view Mr Lancaster SC submitted, Ms Halley had 'lost' the proceedings given that the amount of compensation awarded by the Court was precisely the amount of compensation advanced by the Minister in its amended points of defence which, moreover, was less than the amount the Minister had initially offered Ms Halley as determined by the Valuer-General.
35The starting point for any consideration of an award of costs in compulsory acquisition cases is s 98 of the Civil Procedure Act 2005 ("the CPA"). Section 98 of the CPA provides that "subject to rules of court and to this or any other Act" costs are in the discretion of the court (s 98(1)(a)).
36It follows that the general discretion conferred by s 98 is subject to the Uniform Civil Procedure Rules 2005 ("UCPR"), the Just Terms Act and any specific legislative provisions governing an award of costs in this Court, pursuant to either the Land and Environment Court Act 1979 or the Land and Environment Court Rules 2007 ("the 2007 Rules").
37Turning first to the UCPR, under r 42.1 if the Court makes an order as to costs, the general rule that costs follow the event is applicable unless it appears to the Court that "some other order should be made as to the whole or any part of the costs".
38Second, in relation to the legislative framework by which awards of costs are made in proceedings conducted in this Court, proceedings brought by an applicant for the determination of compensation for the compulsory acquisition of land under the Just Terms Act are proceedings of the type described in ss 19(e), 24 and 25 of Land and Environment Court Act.
39Significantly, these proceedings are explicitly not within the special category of Class 3 proceedings to which the provisions of r 3.7 of the 2007 Rules apply. Rule 3.7(2) effectively states that the "some other order" referred to in r 42.1 of the UCPR should be made in respect of the Classes of proceedings within the Court's jurisdiction that are nominated in that rule. The "other order" contained in r 3.7(2) is that costs do not follow the event and that the Court is precluded from ordering costs unless it is fair and reasonable to do so in all the circumstances.
40Given the proximity of the promulgation of the 2007 Rules to the passage of the CPA and the UCPR, the exclusion of the Just Terms Act from r 3.7 is telling and cannot be ignored. It manifests an unequivocal intention by the legislature that, albeit by omission from the terms of r 3.7(2), the ordinary rule that costs follow the event is to apply to claims for compensation for compulsory acquisition. I do not accept, as Mr Hale SC submitted, that the omission is premised on a general body of knowledge and understanding that the "general principle" referred to above applies, that absent disorganisation or an unarguable case, a claimant should not be made to pay the costs of the resuming authority in compensation proceedings under the Just Terms Act.
41Third, the Just Terms Act itself is silent with respect to awards of costs in this regard. Mr Hale SC relied on s 59(a) of that Act to advance an argument that because under the Act legal costs are considered to be a component of the compensation payable to an applicant as disturbance, this evinced an intention by Parliament that costs ought not be payable by an applicant consequent upon any legal proceedings determining the compensation payable.
42Section 59(a) of the Just Terms Act relevantly provides as follows:
59 Loss attributable to disturbance
In this Act:
loss attributable to disturbance of land means any of the following:
(a) legal costs reasonably incurred by the persons entitled to compensation in connection with the compulsory acquisition of the land...
43But a distinction must be drawn between the "legal costs reasonably incurred by the persons entitled to compensation in connection with the compulsory acquisition of the land" and the legal costs of the proceedings. The former are those properly forming part of the compensation payable to an applicant as a loss attributable to disturbance. The latter, however, are not ( Halloran v Shoalhaven Council; Sealark Pty Ltd v Shoalhaven City Council [1999] NSWLEC 259 at [7] and Buchanan; Kapanke; Moyle v Sutherland Shire Council [2007] NSWLEC 243 at [5]). The Just Terms Act, therefore, says nothing about the payment of legal costs the subject of this application.
44Mr Hale SC drew upon ss 54(1) and 3(1)(a) and (b) of the Just Terms Act to submit that because the primary rationale and object of the legislation is to ensure that an applicant is justly compensated for an involuntary appropriation of the applicant's land, this provided, at the very least, an implicit basis for the Court to make "some other order" in respect of costs. This, it was argued, had been recognised by the Court "for decades", and the passage of neither s 98 of the CPA, r 42.1 of the UCPR, nor r 3.7 of the 2007 Rules impinged upon the well developed principles governing the exercise of the Court's discretion to award costs in compulsory acquisition litigation. This was because, as Biscoe J pithily observed in the decision of Taylor v Port Macquarie - Hastings Council (at [19], emphasis added):
...The interference with the rights of the individual, the confiscatory nature of compulsory acquisition and the statutory entitlement to just compensation have led to the development of different principles in determining costs in cases concerned with compensation for the compulsory acquisition of land compared with ordinary litigation.
45In Taylor , Biscoe J quoted from his earlier judgment in Walker Corp Pty Ltd v Sydney Harbour Foreshore Authority (at [34]-[37]), wherein he described the evolution of these "different principles" as follows (at [20], emphasis added):
20 I recently considered those principles in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2010] NSWLEC 27 at [34]-[37]:
34 The discretion to award costs in compensation matters is one that has been "uniquely applied to tilt the discretion in favour of the dispossessed owner": Nasser v Roads and Traffic Authority (NSW) [2006] NSWLEC 562, 149 LGERA 289 at [32]. As Jagot J said in Simpson v Bagnall [2008] NSWLEC 79 at [10]:
...the compulsory acquisition of land is a serious matter where a dispossessed owner has no option other than to come to court if they dispute the amount of compensation offered. The consequence is that, in the ordinary course, a dispossessed owner can expect to obtain the usual order for costs in their favour, particularly when the amount of compensation determined is greater than that offered by the resuming authority.
35 As a general principle, a person who has had their land taken by way of compulsory acquisition should not bear their own costs, but rather should be allowed to access the Court to present an arguable and well organised case without being deterred by the prospect of being ordered to pay costs if the case proves unpersuasive: Banno v The Commonwealth (1993) 81 LGERA 34 at 53, 45 FCR 32 [at 51], Pastrello v Roads and Traffic Authority (NSW) [2000] NSWLEC 209, 110 LGERA 223 at [17]; AMP Capital Investors v Transport Infrastructure Development Corporation (No 3) [2007] NSWLEC 724 at [18]-[21]; AMP Capital Investors v Transport Infrastructure Development Corporation [2008] NSWCA 325, 163 LGERA 245 at [102].
36 In Serbian Cultural Club 'St Sava' Inc v Roads and Traffic Authority (NSW) (No 2) [2008] NSWLEC 78 a nil determination of market value gave rise to no order for costs. In that case Jagot J observed at [16]:
The cases show that there are no hard and fast rules leaning to any automatic results. The discretion with respect to costs is a broad one that must be exercised judicially having regard to all of the relevant circumstances.
This decision was cited with approval in BMP Manufacturing Pty Ltd v Roads and Traffic Authority of New South Wales (No 2) [2009] NSWLEC 41.
37 In Banno v The Commonwealth (1993) 81 LGERA 34, 45 FCR 32, Wilcox J referred to the court's general discretion as to costs and the public interest in allowing applicants in compulsory acquisition matters access to the court without being deterred by the prospect of being ordered to pay costs if their case proves unpersuasive. His Honour went on to observe at LGERA 53:
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.
46In Taylor his Honour went on to summarise the various expressions in the authorities, not limited to this Court, of the "different principles" (or the "general principle" referred to in Walker ) that have developed in respect of awards of costs in proceedings for compensation consequent upon a compulsory acquisition (at [21]-[22]):
21 The principles applicable to costs in proceedings for compensation for compulsory acquisition of land have been similarly expressed in many other cases, not limited to cases in this Court, including the following:
(a) In Minister for the Environment v Florence (1979) 21 SASR 108 at 134-135; 45 LGRA 127 at 149-150 Wells J said:
Compulsory acquisition cases differ of course from ordinary claims dealt with in the general jurisdiction in one significant respect: the claimant, unlike the ordinary plaintiff, had no choice whether to make a claim or not; the mere acquisition by compulsory process gave him, by virtue of s 18 of the Act, a claim to compensation which he could hardly be expected to renounce. Upon an ordinary claim in the general jurisdiction it is, generally speaking, obvious who has won and who has lost, and correspondingly clear why costs usually follow the event. Upon a claim for compensation for land compulsorily acquired, it is not, generally speaking, appropriate to speak of one party as having won; compensation is awarded to one who has already been given, by statute, the right to receive it. It is therefore as just to say of the latter sort of case that the claimant ought, in the absence of special circumstances, to receive his reasonable costs of obtaining the compensation that is, ex hypothesi , his due, as it is to say of the former sort of case that prima facie costs follow the event in favour of the party who has won. But costs are, as always, discretionary, and no hard and fast rule will ever be allowed to occupy part of an area controlled by a discretion, however predictable the result of its exercise may be in certain sorts of cases.
(b) "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" North Albury Shopping Centre Pty Ltd v Albury Municipal Council (1983) 49 LGRA 215 at 221 per Cripps J.
(c) "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 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": Banno v Commonwealth of Australia (1993) 45 FCR 32 at 51; 81 LGERA 34 at 53 per Wilcox J.
(d) "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": Pastrello v Roads and Traffic Authority of NSW [2000] 110 LGERA 223 at [17]-[18] per Talbot J.
(e) "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": Horton v Wyong Shire Council (No 2) [2005] NSWLEC 45 at [28] per Talbot J.
(f) After referring to the judgment of Cripps J in North Albury Shopping Centre , Bignold J said in Constantino v Roads and Traffic Authority (NSW) (No 2) [2005] NSWLEC 209, 144 LGERA 224 at [8]-[10]:
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.
(g) In Wollong Pty Ltd v Shoalhaven City Council (2002) LGERA 331 at [41] Talbot J said:
The question remains whether the applicant was sufficiently unreasonable in refusing the offers to settle to justify an order that it pay the respondent's costs on a party and party basis or whether the philosophy expressed by Wilcox J in Banno v Commonwealth (1983) 81 LGERA 34 should prevail.
His Honour concluded that the applicant should pay the respondent's costs on the ordinary basis after the service of the respondent's Calderbank letter [ Calderbank v Calderbank [1976] Fam 93].
22 The application of these principles can be seen in decisions of the Court of Appeal. In AMP Capital Investors Ltd v Transport Infrastructure Development Corporation (No 3) [2007] NSWLEC 724 the Valuer General had determined the amount of compensation to which AMP was entitled in the amount of $683,150. AMP claimed compensation of $21,465,352. This Court at [1] determined compensation as nil yet ordered that each party pay its own costs notwithstanding the result. The costs order was not disturbed on appeal: AMP Capital Investors Ltd v Transport Infrastructure Development Corporation (2008) 163 LGERA 245. In Overton Investments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (2001) 113 LGERA 439 the statutory valuation had been $727,500. This Court determined compensation at $186,031.54. The Minister unsuccessfully sought to have Overton pay its costs. The costs decision of the primary judge was upheld on appeal. Stein JA at [72] observed that such proceedings were not like ordinary litigation. In Residents Against Improper Development Inc v Chase Property Investments Pty Ltd (2006) 149 LGERA 360 at [251] McClellan CJ at CL obliquely referred to the special costs principles developed in relation to proceedings under the Just Terms Act .
47As the case law currently exists there is, in my view, a tension between the statutory framework discussed above, namely, that generally costs follow the event, and the "different principles" that have evolved outside this legislative context for determining costs in cases concerned with compensation for the compulsory acquisition of land.
48The resolution of this tension is, in my opinion, to be had in the orthodox application of the legislation and by a careful analysis of the current state of the authorities. Once this task is complete it becomes clear, to me at least, that the "general principle" previously relied upon in cases concerning compensation for compulsory acquisition that the starting point for any determination of costs is that an applicant either should not have to bear his or her own costs or should not have to pay the resuming authority's costs, can no longer be maintained. To hold otherwise would be to disregard, erroneously in my view, the express and unambiguous language of the legislation outlined above.
49I accept that this position does not sit comfortably with a considerable body of opinion of this Court. But many of these cases were decided before the enactment of the CPA, the UCPR or the 2007 Rules. They must now be viewed through a different prism and approached with caution. Judicial comity alone is no answer to this altered legal landscape. However, to the extent that the views I express in this judgment may be seen a departure from those articulated in more recent decisions of this Court (for example Walker , Taylor and Dillon v Gosford City Council (No 3) [2010] NSWLEC 168 at [59]-[60] per Sheahan J), they are offered with the greatest of respect.
50The authorities usually cited in support of the "general principle" do not, upon closer scrutiny, derogate from the conclusion that I have reached above. In the Court of Appeal decision in Overton Investments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2001] NSWCA 137; (2001) 113 LGERA 439, the statutory valuation of the resumed land made by the Valuer-General was in the sum of $727,500. The appellant elected not to accept this sum and commenced proceedings in this Court for the amount of compensation to be determined under the Just Terms Act. The Court determined compensation in the amount of $186,031.54 and held that there be no order as to costs.
51The appellant appealed both the amount of compensation and the costs order. In dismissing the appeal, the Court (Stein JA, with whom Powell JA and Ipp AJA agreed) noted that it was not the case that costs should always follow the event in an award of compensation in compulsory acquisition cases (at [69]). The Court also noted that while the Valuer-General's determination and its relationship to the ultimate award of the Court was relevant, it was not determinative (at [71]). Likewise, it was not "a simple matter of ascertaining who won or lost the litigation" (at [72]). Rather, "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" (at [72]).
52The Court was at pains to observe that (at [74]):
74 On a final note, it was said that if a landowner was not entitled to his costs of a trial where an award of compensation is obtained, then he could be at the mercy of the Government in prolonging the litigation. I do not accept that this is so and indeed, the opposite could be claimed. That is, if a landowner is always to get its costs so long as it obtains an award of compensation, however small, the resuming authority may be at the mercy of the landowner in prolonging a trial.
53Accordingly, on a fair reading of Overton it appears that the Court expressly disavowed any "general principle" that a claimant should be awarded his or her costs upon an award of compensation for land compulsorily acquired or that failing this, that each party should bear their own costs.
54In Banno v Commonwealth of Australia (1993) 45 FCR 32, a case concerning the Commonwealth equivalent to the Just Terms Act, Wilcox J specifically referred to the fact that compulsory acquisition cases are "not ordinary litigation" (at 51) and went on to state (at 51, emphasis added):
... 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.
55With respect, his Honour's comments rose no higher than "perhaps" and amounted to a tentative articulation of policy rather than any statement of authoritative principle. Banno is not binding authority that absent vexation, dishonestly or a grossly exaggerated claim, an applicant will not be ordered to pay the acquiring authority's costs.
56In AMP Capital Investors Ltd v Transport Infrastructure Development Corp [2008] NSWCA 325; (2008) 163 LGERA 245, AMP disputed the amount of compensation offered ($683,150) and commenced proceedings in this Court for approximately $21.46 million. The primary judge ultimately held that the betterment figure exceeded the market value and disturbance amount and no compensation was ordered. The primary judge refused the resuming authority's application for costs stating (quoted at [102]):
102 Mr Hale accepted that the circumstance that there had been a compulsory acquisition was a factor that the primary judge could take into account: see Banno v The Commonwealth (1993) 45 FCR 32; 81 LGERA 34 at [53]; Pastrello v Road and Traffic Authority (NSW) (2000) 110 LGERA 223 at [17]; Overton Investments Pty Limited v Minister Administering Environmental Planning and Assessment Act 1979 (2001) 113 LGERA 439 at [72].
57AMP appealed and the resuming authority cross-appealed the costs order. The Court of Appeal dismissed both appeals. The Court of Appeal's reasons for dismissing the costs cross-appeal were as follows (at [103]-[105]), per Hodgson JA. Although his Honour was in the minority in respect of the disposition of the appeal, his reasons for dismissing the costs cross-appeal were endorsed by the majority, namely, Bell JA at [112] and Gyles AJA at [125]):
103 However, he [Mr Hale] submitted that the primary judge failed to take account of important matters, especially that there had been an expensive twelve day hearing, in which AMP had lost completely. He submitted that the primary judge treated the factor that there had been a compulsory acquisition as determinative or presumptive, and impermissibly fettered her discretion: cf Thaina Town (on Goulburn) Pty Ltd v Sydney City Council (2007) 156 LGERA 150 at [45].
104 In my opinion, the judgment of the primary judge showed she did have regard to these relevant matters, and did exercise a discretion. No basis is shown for appellate intervention.
105 I note that in any event, my opinion is that, as a result of the appeal, AMP should have succeeded to the extent of something over $1 million. Normally, this would carry costs at first instance. However, the basis on which AMP should have succeeded was not raised below; and my tentative view is that, even if AMP were to succeed to this extent, the costs order below should not be disturbed.
58Given that the primary judge had stated that a costs order in favour of the resuming authority was not appropriate because not only were the proceedings compulsory acquisition proceedings, but also because AMP was successful on several issues and there was no disentitling conduct, Hodgson JA's reasons for dismissing the appeal were, with respect, unremarkable. The primary judge did not, as was submitted during the appeal, treat the fact that the litigation concerned compensation for compulsory acquisition as determinative or presumptive thereby fettering the exercise of her discretion, rather she had regard to all relevant matters and exercised her discretion accordingly and properly.
59In my opinion, upon proper analysis AMP does not stand for the proposition advanced by Mr Hale SC, namely, that in compulsory acquisition proceedings, absent vexation, disorganisation in the conduct of the hearing or manifest hopelessness, the Court is bound to order that either there be no order for costs or that the applicant's costs are to be paid by the resuming authority.
60Having said this, the proposition that the fact that the litigation concerns compulsory acquisition proceedings is a relevant factor to be considered in the exercise of the Court's discretion in awarding costs cannot be cavilled with. It is. Any court that were to wholly ignore this factor would, in my view, err in the exercise of its costs discretion.
61I also accept that in compulsory acquisition cases it may often be difficult to determine what the 'event' is for the purpose of applying, as a starting point, the general rule that costs follow the event (as noted in Overton at [72]). This is particularly so where the Court can have before it, in effect, a tripartite contest between an amount of compensation determined by the Valuer-General, an amount sought by the resuming authority and an amount sought by the applicant. But this application does not present one of those scenarios.
62Mr Hale SC relied upon the decision of the then Chief Judge of this Court McClellan J in Gee v Port Stephens Council [2003] NSWLEC 260; (2003) 131 LGERA 325 to argue, by analogy, that just as there were sound policy considerations militating against a conventional award of costs in Class 1 merit appeals, conventional orders as to costs should equally not be made in Class 3 compulsory acquisition cases. This was because, as McClellan J stated, in merit appeals "minds may reasonably differ" and parties to a merit appeal ought not, as a matter of fairness, be burdened with costs orders consequent upon such differences. The present matter, Mr Hale SC contended, was an illustration of a case where all that had occurred was that reasonable town planning minds had differed.
63But Gee may be distinguished from the present case in two respects. First, it was decided before r 3.7 of the 2007 Rules was promulgated and a statutory regime enacted governing, together with s 98 of the CPA and r 42.1 of the UCPR, the award of costs in this Court in Class 3 matters. Second, while both town planners were undoubtedly respected experts in their field, it nevertheless remains the fact that both the trial judge and the Court of Appeal emphatically rejected the town planning evidence at the very heart of Ms Halley's case. Put another way, Ms Halley did not advance sufficient planning evidence to support her claim, which, in the opinion of the Court of Appeal, was stated at a high level of generality. Furthermore, because her valuation evidence was tethered to her town planning evidence, the rejection of the latter inexorably led to the rejection of the former. The result was therefore premised on more than simply the reasonable difference between expert minds.
64In summary, absent an express legislative provision to this effect, I reject as a determinative, or even presumptive, factor in the exercise of the Court's discretion on costs, the fact that the subject matter of the proceedings concerns the compulsory acquisition of land. In my view, it is but one of a number of factors that must be taken into account in determining which party, if any, should pay the costs of the proceedings. Other factors include, for example, the relationship between the Valuer-General's determination and the ultimate award of the Court, whether there was disentitling conduct by either of the parties to the litigation, the strength of the claim for compensation, whether there were reasonable attempts by either party to settle the proceedings and which party was successful.
65After the hearing concluded, and at the request of the Court, the Minister furnished the Court with illustrations drawn from the authorities of examples of cases in which the applicant in Class 3 compulsory acquisition proceedings had been ordered to pay part, or all, of the costs of the acquiring authority. Ms Halley was given the opportunity of commenting on these cases in further written submissions.
66The comfort that could be obtained from these authorities was limited to the extent that each case, as Mr Hale SC correctly noted in his further written submissions, turned on its specific facts and circumstances and each case gave rise to significant points of distinction from the present proceedings. What the cases did illustrate, however, was that, as Jagot J observed in Serbian Cultural Club "St Sava" Inc v Roads and Traffic Authority (NSW) (No 2) [2008] NSWLEC 78 (at [16]), "there are no hard and fast rules leaning to any automatic results".
67To the extent that some of the cases provided to the Court involved offers of compromise or Calderbank letters ( Wollong Pty Ltd v Shoalhaven City Council [2002] NSWLEC 164; (2002) 122 LGERA 331 and Doueihi v Roads and Traffic Authority of NSW [2005] NSWCA 201) I found them to be of little assistance.
68Because City of Botany Bay v New South Wales Land and Housing Corporation [2011] NSWLEC 4 concerned Class 4 proceedings challenging the validity of a decision of the respondent under Pt 5 of the Environmental Planning and Assessment Act 1979 and did not touch upon the compulsory acquisition of land, I found it to be of limited relevance to the issues for determination in this application.
69Similarly, in both Geoffrey v Roads and Traffic Authority of NSW [2007] NSWLEC 405 and Ray Fitzpatrick Pty Limited v Minister for Planning (No 5) [2008] NSWLEC 183, the applicant discontinued the proceedings after accepting the amount offered in the statutory notice. After examining the conduct of the applicant in each case (in Geoffrey there was disentitling conduct whereas in Ray Fitzpatrick there was none), the Court applied the principle that because the applicant had abandoned the proceedings, the applicant should pay the acquiring authority's costs (Geoffrey at [36]-[39]) and Ray Fitzpatrick at [50]). That is to say, in neither case did the Court have ultimate recourse to the "general principle" referred to above.
70Before I leave Geoffrey and Ray Fitzpatrick , however, I wish to make one observation. It is this, that there is little difference in principle between an award of costs in compulsory acquisition cases where the applicant abandons his or her claim by accepting the statutory offer during the course of proceedings and, applying the reasons I have expressed above, an award of costs against an applicant following upon an applicant's lack of success in proceedings measured by the fact that the Court determined the applicant's compensation to be the same as that contained in the statutory offer. If the "general principle" in determining costs in compulsory acquisition proceedings is to be consistently applied, as the policy underpinning it would seemingly demand, the result ought to be the same, namely, that there is no order as to costs. But this is not what generally occurs. I do not understand why, as a matter of policy, applicants are (assuming no disentitling conduct) burdened by costs in the former scenario, but not in the latter, when in the former savings as to time and costs may be effected by the applicant accepting the statutory offer, albeit late. Applicants might, in the former scenario, be tempted to pursue proceedings to finality in the hope of avoiding an adverse costs order. Such an outcome should be avoided.
71Finally, in Dillon the Court awarded the costs of the substantive proceedings to the applicants on the basis of their success insofar as they recovered more than the Valuer-General's determination, more than the original claim put by the council, and more than the amount contended for by the council at the hearing. Costs were awarded notwithstanding that the compensation determined was less than the amount the applicants sought during earlier negotiations, and was marginally less than the offer the applicants made to the council during the hearing. Sheahan J ordered the respondent to pay 75% of the applicant's costs. I do not see how this case assists the Minister.