Ward Richard Geoffrey v Roads and Traffic Authority of NSW

Land and Environment Court (NSW)|2007-06-20|Before: Talbot J, Biscoe J, Jagot J

The applicant's argument 21 According to Mr Webster SC, who appears for the applicant, it was reasonable to settle for a discounted amount where there was so little difference between compensation in the sum of $800,000 and $850,000 with the provision of alternative access arrangements. 22 Relying upon the observations made by Bignold J in Manly Wharf Pty Ltd v Manly Council (1997) 98 LGERA 245 at 249, Mr Webster submits that the Court should recognise that the discontinuance reflects, "not a total abandonment of the applicant's claims, but a compromise or settlement of them, in which circumstances that may be just that there be no order as to costs following upon the discontinuance of the proceedings. Moreover, the party against whom the proceedings have been discontinued may forfeit its presumptive entitlement to costs if it has been guilty of any relevant misconduct in the litigation". Bignold J reaffirmed what he said in Manly Wharf in Kentgreen Dural Pty Ltd v Hornsby Shire Council (1999) 103 LGERA 219 at 224. Subsequent cases in the meantime show only that there could be reasonable conduct on behalf of the discontinuing party sufficient to negate the "ordinary" costs consequences of discontinuance. 23 In Menangle Sand and Soil Pty Ltd v Wingecarribbee Shire Council and Ors (2000) 108 LGERA 209 at 213, Lloyd J recognised that in the cases cited by him in which orders for costs were made against the discontinuing party the discontinuance had occurred well after the case had been set down for hearing and relatively shortly before hearing date. He further observed that it is self-evident that in those circumstances the other party to the litigation would have incurred substantial costs in its preparation for a hearing, which costs were necessarily wasted. Lloyd J identified the following general principle from the cases:- (a) …. (b) …. (c) a relevant consideration in every case is whether the discontinuance was reasonable conduct on a part of the discontinuing party in the circumstances of the case, such as to negate the ordinary costs consequences of a discontinuance of the proceedings. Such conduct may be based on some action by the other party to the litigation or some supervening event beyond the parties' control. 24 Mr Webster relies on (c) above and submits that it was reasonable for his client to discontinue the proceedings where the valuers had reached an agreed figure and it is decided not to argue for the difference. The intention to discontinue based on a settlement was foreshadowed by the applicant prior to the respondent incurring the substantial costs in respect of the preparation of expert evidence for the hearing. 25 The difficulty with the submission by Mr Webster is that the respondent had incurred substantial costs in relation to the evidence (at least in respect of he non-valuation expert's evidence served on 20 April 2007) before Justice Biscoe was advised on 18 May 2007 that the applicant intended to accept the statutory offer and to file a Notice of Discontinuance.

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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CITATION : Ward Richard Geoffrey v Roads and Traffic Authority of NSW [2007] NSWLEC 405 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Evagelekos v Roads and Traffic Authority NSW [2006] NSWLEC 514 ; Manly Wharf in Kentgreen Dural Pty Ltd v Hornsby Shire Council (1999) 103 LGERA 219 ; CASES CITED: Manly Wharf Pty Ltd v Manly Council (1997) 98 LGERA 245 ; Menangle Sand and Soil Pty Ltd v Wingecarribbee Shire Council and Ors (2000) 108 LGERA 209 ; Niezabitowski and Anor v Roads and Traffic Authority NSW (2006) 147 LGERA 417

(1999) 103 LGERA 219

(2000) 108 LGERA 209

(2006) 147 LGERA 417

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