Sales and Anor v Transport for NSW [2020] NSWLEC 145 | Case summary

Land and Environment Court (NSW)|2020-10-12|Before: Robson J, Mr P

Judgment

Before the Court is an application to rely upon further evidence made on the first day of the hearing of these Class 3 proceedings, in which Nancy Eileen Sales, Paul Howard Roots and Gail Elizabeth Borg (collectively 'applicants') seek compensation arising from the acquisition by Transport for NSW ('respondent') on 23 February 2018 of an area of land of approximately 3.5ha at Luddenham for the purpose of the realignment of The Northern Road.
During opening submissions, Mr P Tomasetti of senior counsel, who appears with Ms A Pearman of counsel for the applicants, sought leave to rely upon a report dated 9 October 2020 prepared by Chris Pope, a director of a property consultancy company that provides strategic property advice and property development services. Mr Pope opines as to whether the parties' valuation experts, being Grahame Hollinshead (retained for the respondent) and Paul Dale (retained for the applicants), have each used a computer program known as "EstateMaster" in accordance with best practice.
Mr L Waterson of counsel, who appears with Mr T Poisel of counsel for the respondent, objects to the tender.
After opening addresses, I heard detailed submissions in relation to the further evidence from both Mr Tomasetti and Mr Waterson and I informed the parties that I intended to provide judgment when the hearing resumed in Court on 14 October 2020 after the conduct of a scheduled all-day view of the subject land and various comparable sale sites on 13 October 2020.
For the reasons that follow, I reject the report of Mr Pope.

Consideration

Although the rules of evidence do not strictly apply to proceedings in Class 3 of the Court's jurisdiction, it is obvious that matters of fairness and justice and the well-known principles of case management must still be considered.
Further, r 31.19 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'), which applies to proceedings in Class 3 of this Court's jurisdiction by the application of r 3.1 of the Land and Environment Court Rules 2007 (NSW) and pars (23) and (26) of the Court's Practice Note Class 3 Compensation Claims dated 15 March 2019, requires parties to seek directions from the Court before they will be permitted to adduce expert evidence.
Mr Pope states that his instructions were to review and advise whether or not the valuers "appeared to have used the EstateMaster program in accordance with best practice". He concludes, in my view, without detailed reasoning that Mr Hollinshead appears not to have used the program "strictly in accordance with industry best practice…". In passing, and not determinative in my present consideration, he does not indicate with any specificity what constitutes "industry best practice".
Having read the material to which I was directed, and having heard detailed submissions, I refuse leave to rely on, and therefore reject the tender of, the further evidence. My reasons may be shortly stated.
First, there has been no persuasive explanation for the lateness of the provision of the report of Mr Pope. Having looked closely at the various references to the adoption and use of the EstateMaster program in the valuation evidence, and in particular the two joint valuation reports, it is clear that each of the valuers has adopted a different approach and has sought to respond to the other valuer's approach. As such, I consider that it remains for the Court to consider their evidence and, to the extent that there is conflict, to determine which, if any, is to be preferred. I also accept that Mr Hollinshead did refer to the EstateMaster "User Guide" and did not adopt a "profit and risk" parameter for the reasons stated in his original statement.
Second, in Shellharbour City Council v Minister for Planning [2011] NSWCA 195; (2011) 189 LGERA 348 at [26], in considering the giving of directions under r 31.19 of the UCPR, Giles JA commented that the primary purpose of the rule is to control the calling of expert evidence and to restrict it to that "which is reasonably required to resolve the proceedings having regard to the admonition of just, quick and cheap". His Honour also stated "That evidence may be relevant and admissible is not enough, let alone that it is possible to argue that it is relevant and admissible." In the circumstances, I do not consider that the report of Mr Pope is reasonably required to resolve the issues in the proceedings given the competing approaches of the valuers, both in relation to the appropriate methodology they adopt and the manner in which each has used the EstateMaster program.
In summary, I consider that the receipt of Mr Pope's report at this late stage, with the consequence that additional time will most likely be occupied in relation to cross-examination of Mr Pope, and that additional evidence is likely to be adduced by the respondent in the circumstances where each of the valuation experts has already explained his position, leads me ineluctably to the view that it is inappropriate that leave be given, or directions made, to allow the admission of the further evidence.

Decision

Leave to file and rely upon further evidence is refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 October 2020

(2011) 189 LGERA 348

Sales and Anor v Transport for NSW

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