Ward Richard Geoffrey v Roads and Traffic Authority of NSW

The respondent's argument 26 Without necessarily accepting the decision by Biscoe J in Niezabitowski and Anor v Roads and Traffic Authority NSW (2006) 147 LGERA 417 (that the statutory offer remains open until the Court decides the case or the parties otherwise agree notwithstanding the commencement of the litigation (at 43)), Mr Lancaster who appears for the respondent relies on the determination of the question of costs in favour of the respondent in that matter where the applicant accepted the statutory offer after lodging an objection with the Court. In that case Biscoe J ordered indemnity costs against the applicants particularly as they continued to create the appearance that they were proceeding with their objection in order to secure a tactical advantage. The respondent does not seek indemnity costs in this case. 27 Evagelekos v Roads and Traffic Authority NSW [2006] NSWLEC 514 was a further decision by Biscoe J where the applicant accepted the statutory offer after the objection had been lodged with the Court. The respondent formally maintained its argument that the decision in Niezabitowski was in error. However, the question of costs was considered after the matter had proceeded for four days during which the applicant continued to contend for a much greater figure than the statutory offer, before accepting it. In awarding costs in favour of the respondent Biscoe J observed that the course taken by the applicant had resulted in an abandonment of the proceedings. The cost order was made, not for the purpose of penalising the applicants for doing that which was open to them to do, but to compensate the respondent as a party who had succeeded in the proceedings. 28 Mr Lancaster submits that all the applicant has done in this case is to accept the offer which was open to it since June 2005. So far as the formal proceedings in the Court are concerned the claim remained at $1.38 million at all times. 29 In answer to the applicant's submission to the effect that it was unreasonable for the respondent not to accept the offers made after the meeting of the valuers in December 2006, Mr Lancaster argues that there were unresolved issues including disturbance, alternative access, and the reorganisation of parking. It is the respondent's case therefore that the offers made were neither settled nor specific. Accordingly they cannot be regarded as being a Calderbank offer. 30 Mr Lancaster maintains that the actions of the RTA following the meeting of the valuers and the offers that followed were reasonable. An offer to continue negotiations remained open. The so called agreement between the valuers did not amount to a settlement but merely constituted a joint recommendation that could form the basis for meaningful negotiations. In the circumstances it was not unreasonable for the respondent to continue with preparation for the hearing particularly following the orders made by Biscoe J by consent on 5 April 2007. The fact that the evidence was filed and served out of time is not a matter upon which the applicant can rely particularly as the applicant never produced any evidence. 31 Mr Lancaster further points out that it was not until the 18 May that the filing of a Notice of Discontinuance was foreshadowed and that this was not actually done until 15 June 2007. In the meantime, duly executed documents had been forwarded direct to the RTA by the applicant's solicitors on 5 June 2007, whereby the applicant accepted that which was open to it at all times since June 2005. Thus, according to the respondent there is nothing unusual in the circumstances of this case that would take it outside the decisions by Biscoe J in Niezabitowski and Evagelakos. 32 Moreover, the applicant is not entitled to an award of costs in his favour where he is the discontinuing party in circumstances where no benefit has accrued as a consequence of the litigation.

Appropriate costs order 33 Not only was it open for the applicant to accept the statutory offer prior to commencing the proceedings but the objection was lodged out of time. Almost a further year elapsed after the commencement before the Notice of Discontinuance was filed following completion of settlement documents. 34 It is not feasible to regard the joint recommendation made by the valuers in December 2006 as a negotiated settlement. It remained for the parties to settle on a final figure for compensation and to resolve the extraneous matters outstanding between them, including any questions of costs. It is settled that an award of costs is not intended to penalise a losing party but to compensate a successful party unless there are unusual circumstances that justify a contrary order. 35 I do not regard the actions of the applicant as being conducive to achieving a result different to that which could have been achieved without the commencement of litigation. On the other hand, the respondent did not act unreasonably and continued to be responsive to settlement offers, which were by no means conclusive, and, until the statutory offer was accepted, left a number of matters unresolved. 36 If a determination is to be made based upon the outcome of the proceedings, then the respondent must be regarded as the successful party given that the amount offered in the statutory notice was ultimately accepted. The applicant allowed preparations for a hearing to continue to a point where costs were incurred in relation to the preparation of expert evidence before there was a confirmation that there was a real prospect of settlement. 37 Although there is a policy view that a land owner deprived of property as a consequence of compulsory acquisition is to obtain just and fair compensation and that where there is doubt it should be resolved in favour of the resumee, nevertheless the conduct of the applicant in this case has in my opinion been contrary to his own interest and the interest of the respondent to the extent that costs were incurred unreasonably. Firstly by the commencement of the proceedings at all and secondly by their continuation up to and including the filing of the Notice of Discontinuance on the 15 June 2007. 38 In the whole of the circumstances therefore, the applicant is not entitled to an order that the respondent pay his costs up to the 18 December 2006 and more particularly on an indemnity basis from the 18 December 2006. To the contrary, the respondent has incurred costs unnecessarily from the outset with no advantage accruing to the applicant by the conduct of the litigation. 39 Unfortunately the unusual circumstances in this case drive me to the conclusion that the applicant (notwithstanding his status as a dispossessed owner), should pay the costs of the respondent as in effect it was the successful party. The proceedings were to no avail. The subject of the objection was a dispute over the amount offered by the statutory notice based on the Valuer General's valuation. That dispute was resolved in favour of the respondent. 40 The Court makes the following orders: 1. The applicant's Notice of Motion 1 June 2007 is dismissed. 2. The applicant pay the respondent's costs of the proceedings and the respondent's Notice of Motion dated 15 June 2007 and the applicant's Notice of Motion 1 June 2007. 3. Exhibit A may be returned.

13/07/2007 - Delivered date - Paragraph(s) cover sheet

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