Warwick Farm Central Pty Ltd v Valuer General

(a) 15% of $707/m2 is $106.05/m2 (this is based on the following calculation: 707 x 0.15 = 106.05); and

(b) $707/m2 minus $106.05/m2 equals $600.95/m2.

14. Accordingly, I believe that the Court has made a mathematical error in finding that the Court adjusted rate for 42 Sargents Road is $615/m2 and that the Court adjusted rate for 42 Sargents Road identified in paragraph 200 should instead be $600.95/m2.

1. In relation to the Court adjusted rate for 17 John Hines Avenue, Minchinbury (17 John Hines Avenue), Mr Kingsbury deposes:

20. Based on my own calculations, I believe that:

(a) 25% of $825/m2 is $206.25/m2 (this is based on the following calculation: 825 x 0.25 = 206.25); and

(b) $825/m2 minus $206.25/m2 equals $618.75/m2.

21. Accordingly, I believe that the Court has made a mathematical error in finding that the Court adjusted rate for 17 John Hines Avenue is $660/m2 and that the Court adjusted rate for 17 John Hines Avenue should instead be $618.75/m2.

1. In relation to the Court determined land value for the valuing year 1 July 2021, Mr Kingsbury deposes:

24. I believe the mathematical errors outlined above have been carried through to the Court determined land value rate of $781.25/m2 for the valuing year 1 July 2021.

...

28. I believe that if the figure of $604.90/m2 was adopted as the determined land value rate for the valuing years 1 July 2019 and 1 July 2020 (instead of $625/m2), then, applying the 25% uplift in land value for the subject land for the valuing years 1 July 2019 and 1 July 2020 to the valuing year 1 July 2021 as per the paragraphs 236-237 of the judgment, the determined land value rate for the valuing year 1 July 2021 should be $756.13/m2 (instead of $781.25/m2). This is based on the following calculation: 604.90 x 1.25 = 756.13 (rounded to two decimal places).

1. Mr Kingsbury further deposes that the Court has made no determination in relation to a flooding discount and no determination of a discount in relation to the sewer pipe that traverses the subject land.
2. Mr Kingsbury provides a summary of what he believes "based on [his] calculations, the impact would be to the Court determined values if the Court varies (or in the alternative corrects) the orders and the judgment in the following ways":

(a) Only the mathematical errors are corrected.

(b) The Court finds that a discount for flooding is warranted and the evidence of the Appellant's expert Mr Konidaris is accepted in relation to flooding.

(c) The Court finds that a discount for flooding is warranted and the evidence of the Respondent's expert Mr Hubbard is accepted in relation to flooding.

(d) The Court finds that a discount for both flooding and the sewer pipe is warranted and the evidence of the Appellant's expert Mr Konidaris is accepted in relation to flooding and the sewer pipe.

(e) The Court finds that a discount for both flooding and the sewer pipe is warranted and the evidence of the Respondent's expert Mr Hubbard is accepted in relation to flooding and the sewer pipe (and the upper range of Mr Hubbard's nominated 2-5 per cent range for the sewer pipe is adopted).

1. Each of the parties also filed written submissions, and the appellant filed submissions in reply.

1. Section 56(1) and (2) of the Civil Procedure Act 2005 (NSW) (CPA) provides as follows in relation to the overriding purpose of the Act:

56 Overriding purpose

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

1. In relation to the Court's power to set aside or vary a judgment or order, r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides:

36.16 Further power to set aside or vary judgment or order

(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

(2) The court may set aside or vary a judgment or order after it has been entered if -

(a) it is a default judgment (other than a default judgment given in open court), or

(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or

(c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.

...

(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

...

(4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.

1. In relation to the correction of a judgment or order, r 36.17 of the UCPR provides as follows in relation to the "slip rule":

36.17 Correction of judgment or order ("slip rule")

If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.

1. The appellant submitted that the land values determined by the Court in the primary judgment should be amended pursuant to r 36.16(1) (or r 36.17) of the UCPR because in each case the Court had made "readily rectifiable errors", properly characterised as "an oversight on the part of the Court" through no fault on the part of the appellant, "inadvertent omissions" which were "readily correctable" by the Court and which should be corrected "in order to do justice to the parties without the expense and complication if not applied":

(1) firstly, the Court made two "simple" mathematical errors in arriving at the Court determined land value rates for the subject land:

(a) the first alleged mathematical error relates to the 15% negative adjustment to the comparable sale of 42 Sargents Road for the valuing years 1 July 2019 and 1 July 2020 to the agreed analysed rate of $707/m2. The Court at [200] concluded that the adjusted rate was $615/m2, and the appellant submitted that it ought have been $600.95/m2;

(b) the second alleged mathematical error relates to the 25% negative adjustment to the comparable sale of 17 John Hines Avenue for the valuing years 1 July 2019 and 1 July 2020 to the agreed analysed rate of $825m/2. The Court at [206] concluded that the adjusted rate was $660/m2, and the appellant submitted that it ought have been $618.75/m2;

(c) the two alleged mathematical errors were submitted to have impacted the Court's determination of the adjusted land value rate in the 2021 valuing year. The Court at [236]-[237] concluded that the adjusted rate was $781.25/m2, and the appellant submitted that it ought have been $756.13/m2;

(2) secondly, the Court did not make a finding in relation to flooding and, by inference, inadvertently omitted to include a discount for flooding to reflect the parties' agreed position that a discount was required to account for the additional costs of developing the subject land which is flood affected; and

(3) thirdly, the Court did not make a finding in relation to the sewer pipe and, by inference, inadvertently omitted to include an adjustment for the presence of the sewer pipe on the subject land.

1. In each case, the errors were said to arise through the Court's misapprehension of facts relevant to the appropriate adjustments made to the comparable sales selected by the Court. Each of the errors was submitted to be readily identifiable from the Court's reasons, readily rectifiable, to have been inadvertent and properly characterised as an oversight on the part of the Court. The errors were therefore such as to enliven the Court's jurisdiction to vary the orders pursuant to r 36.16(1) of the UCPR. Mr White for the appellant confirmed that the inadvertent errors or omissions on which the appellant relied were misapprehensions of fact and not of the relevant law.
2. In relation to the alleged omission of adjustments for flooding and the sewer pipe, the appellant initially relied on both r 36.16 and r 36.17 of the UCPR. Initially, the appellant also relied on both r 36.16 and r 36.17 in relation to the alleged mathematical errors. However, in its submissions in reply and at the hearing of the notice of motion, the appellant confirmed that it relied on the slip rule in r 36.17 only in relation to the alleged mathematical errors, and not the flooding and sewer pipe issues.
3. The appellant submitted that the errors were such that the parties "should not be forced to pursue an appeal in the Court of Appeal".
4. At the hearing of the notice of motion the Court asked the appellant the following question in relation to its submissions concerning mathematical errors:

HER HONOUR: In terms of the appellant's submissions concerning arithmetic error, has the appellant your solicitor in his affidavit carried out any cross-check calculations to establish the mathematical correctness of the adjustments?

1. Mr White for the appellant replied that Mr Kingsbury undertook cross-check calculations at [12] and [13] of his affidavit in relation to 42 Sargents Road (extracted above at [6]) and at [20] of his affidavit in relation to 17 John Hines Avenue (extracted above at [7]). Mr White further submitted that:

There was no cross-check methodology applied by the Court. If they had, if the Court had sought to apply a cross-check methodology, it would immediately have seen that its arithmetic was wrong.

1. Further, in response to a question from the Court in relation to his submission that "your Honour intended to make a 15% adjustment to one of the sales and a 25% adjustment to the other of the Minchinbury sales", Mr White for the appellant agreed that it must be right that it is a matter for the Court to determine objectively having regard to its reasons, to be discerned on the face of the reasons, and not what was in the mind of the Court.

1. The respondent submitted that at issue is whether the Court has power to set aside the orders where the primary judge had not proceeded on any misapprehension of the facts, and where the errors are not readily identifiable or rectifiable (within the meaning of r 36.16 of the UCPR), and/or where the asserted errors were not capable of a simple correction amenable to the slip rule (that is, within r 36.17 of the UCPR).
2. In relation to the alleged mathematical errors, in its written submissions, the respondent submitted that the appellant "correctly identified mathematical errors in the Court's calculations", however, "those errors [were] not the result of any misapprehension of the facts nor [were] they readily identifiable or rectifiable as they require the exercise of a further discretion."
3. In response to the Court's question as to whether the appellant carried out cross-check calculations, Ms Pearman for the respondent "supplement[ed]" the submission with the following:

Now, what we say about this is that taking the orthodox approach, the conventional approach, we agree with the applicant that there has been a mathematical error based upon that orthodox or conventional approach. However, having now heard from the Court about a question of cross‑checking, what we can now say is that in doing the cross-check based upon the figures, and I'm looking at para 192--

...

of the judgment ... and noting at 199 the 15% in respect of the first sale, we can now see that in doing a cross-check, that it would appear that the figure of 615, that the Court has arrived at in para 200 of the judgment, multiplied by 1.15%, does arrive at the figure of 707, the analysed rate. So, we can see that there is some reasoning of the Court. ... but of course we can't know what was in the judicial mind, but we can see that the Court has made a deliberate decision and we say that the Court having made a deliberate decision about that, that the asserted mathematical error is then not amenable to either of the rules, because this is a deliberate decision of the Court.

Now, that is something that has only dawned upon us, having heard some questions from the bench. ... as a model litigant, we accept that the applicant has identified what we considered to be a mathematical error based upon that orthodox traditional approach, but the Court is the judicial valuer and the same matter applies of course to para 205 where the Court's arrived at 25% in respect of the second sale during that same exercise there. 660 at 1.25%, one arrives at the figure of 825.

Now, these are not coincidental. ... in respect of the second sale, that there is some deliberate decision on the part of the Court in arriving at the rates of 660 in respect of the second sale and 615 in respect of the first. So, that having now been worked through, we fall back upon the Court as judicial valuer ...

1. And later, Ms Pearman said: "[i]t was simply a fact of calculation that we could see how that figure came to fruition, so it is a calculation matter not a matter of methodology there." Referring to the role of the Court as judicial valuer, Ms Pearman submitted that in the case of both Minchinbury sales (42 Sargents Road and 17 John Hines Avenue), the Court had made a deliberate decision in arriving at the analysed rate and the asserted mathematical error was not amendable to either r 36.16 or r 36.17.
2. In relation to the suggested failure of the Court to make adjustments for flooding and for the presence of a sewer pipe on the subject land, the respondent submitted that there was "again no misapprehension of the facts in respect of flooding or sewer", the Court having "accurately and comprehensively recorded the parties' competing submissions on both matters". Further, the asserted errors were "not readily identifiable", and therefore not amenable to either r 36.16 or r 36.17 of the UCPR.

1. The respondent, in particular, drew attention to the authorities concerning the Court's role as judicial valuer in Class 3 proceedings of the kind heard before me (assisted by Kempthorne AC) between 23 and 27 October 2023.
2. In Leichhardt Council v Roads and Traffic Authority (NSW) (Leichhardt Council),[1] Spigelman CJ, with whom Beazley, Bryson and Basten JJA and Campbell J agreed, said at [83] as follows in relation to the role of the Court as judicial valuer in Class 3 proceedings:

... A judge of the Land and Environment Court is perfectly entitled to reject the whole of the expert evidence and, drawing on the experience of the Court, to do as best s/he can to identify an appropriate level of discount or, relevantly, an appropriate quantum of adjustment to the comparable sales figure by reason of the existing use rights of some of those sales.

1. In Norwest City Pty Ltd ATF Norwest City v Valuer General,[2] Moore J (referring to the decision in Leichhardt Council) said at [136] as follows:

136. The role I perform as the judicial valuer in these proceedings is not confined by the opinion of the two expert valuers giving evidence. As was observed by Spigelman CJ, with whom Beazley, Bryson and Basten JJA and Campbell J agreed, in Leichhardt Council v Roads & Traffic Authority of NSW [2006] NSWCA 353; (2006) 149 LGERA 439, at [83].

1. In accordance with the decision of the Court of Appeal in Majak v Rose (No 5) (Majak),[3] the parties accepted that the appellant bears the onus of demonstrating that either of r 36.16 or 36.17 should apply.

1. There was no dispute that the notice of motion seeking to set aside or vary the primary judgment was filed by the appellant within 14 days after the orders were entered, and hence that the Court's power to set aside or vary the orders pursuant to r 36.16(1) was enlivened: r 36.16(3A).
2. As a matter of general principle, it has been frequently held that the Court's jurisdiction to set aside orders should be exercised sparingly and "with great caution",[4] having due regard to the importance of the finality of litigation.[5]
3. In Autodesk Inc v Dyason (No 2) (Autodesk v Dyason (No 2))[6] at 303, Mason CJ (in dissent in the result) said as follows in relation to the jurisdiction to set aside orders (emphasis added):

However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases.

1. In Majak, Leeming and Simpson JJA and Emmett AJA said at [12] as follows in relation to r 36.16 of the UCPR (emphasis added):

The rule is, like all rules made under the Uniform Civil Procedure Act 2005 (NSW), subject to the "overriding purpose" of facilitating the "just, quick and cheap resolution of the real issues" between the parties to litigation (s 56). It does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them. Nor does it make of a court some sort of magic pudding from which unsuccessful litigants may take slice after slice, ever hopeful that the next will be more palatable than the last. The rule has a serious, but limited, purpose which is to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal (or, in the case of this Court, an application for special leave to the High Court). Abuse of the rule is detrimental to the administration of justice in unnecessarily and unfairly (to other litigants) taking up the time of the court. Nor does abuse of the rules facilitate the just, quick and cheap resolution of the issues between parties. On the contrary, unwarranted reliance on r 36.16 is oppressive to the successful party and a drain on the Court's resources.

1. In Mendonca v Tonna (No 3),[7] Bell P and Meagher and Payne JJA said as follows in relation to the purpose of r 36.16(1):

As this Court noted in Majak v Rose (No 5) [2017] NSWCA 238 at [12] (Leeming and Simpson JJA, Emmett AJA), r 36.16(1) has "a serious, but limited, purpose which is to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal". The exercise of that power is subject to the same limitations as the Court's inherent power to set aside or vary a judgment that has not been entered. That power, as Mason CJ noted in Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 302-303; [1993] HCA 6, is enlivened where the Court has "apparently proceeded according to some misapprehension of the facts, or the relevant law" and where that misapprehension is not solely due to the neglect or default of the party seeking to set aside or vary the judgment. Accordingly, it is not to be exercised for the purpose of re-agitating arguments that have already been considered by the Court, or for raising new arguments that could have been but were not made during the hearing.

1. In Owlstara v State of New South Wales (No 2),[8] Basten and Meagher JJA and Emmett AJA said at [6] as follows in relation to the limitations to which r 36.16(1) is subject:

Rule 36.16(1) is subject to the same limitations as the Court's inherent power to set aside or vary a judgment or order that has been made but not entered: Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2); Carelli v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 at [10]. Accordingly, as Mason CJ explained in Austodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 303; [1993] HCA 6:

What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases.

1. In Waterhouse v Independent Commission Against Corruption (No 2) (Waterhouse),[9] the Court of Appeal considered setting aside or varying orders pursuant to r 36.16, and after referring to the reasoning of Mason CJ in Autodesk v Dyason (No 2), Basten JA, Sackville and Emmett JJA at [17] said as follows (emphasis added):

To that statement one may add two further notes of caution. First**, there is a distinction to be drawn between the court acting upon a misapprehension as to the facts or the relevant law, on the one hand, and, on the other, the court reaching a conclusion which, in the view of the applicant for re-opening, involves a mistake**. Secondly, there is a distinction to be drawn between the situation where the court misapprehends the facts, on the one hand, and, on the other, the situation where the court does not refer in its reasons to some matter which, in the belief of the person seeking re-opening, deserved express reference.

1. In Jandson Pty Ltd v Edmonds (Jandson),[10] a case concerning whether or not leave to appeal should be granted (and on which particular reliance was placed by the appellant), Bell CJ (Macfarlan and White JJA agreeing) said in relation to the circumstances where a judge has overlooked a particular argument of a party (at [16]-[17], [20] and [22]) (emphasis added):

16. In circumstances where a judge has overlooked a particular argument of a party, it is open to that party to draw that fact to the judge's attention and invite him or her to address the matter ...

17. In Consolidated Lawyers Ltd v Abu-Mahmoud; Abu-Mahmoud v Consolidated Lawyers Ltd [2016] NSWCA 4 at [39]- [40], Macfarlan JA, with whom Bathurst CJ and Tobias AJA agreed, observed that:

"[39] The appellants asserted on the appeal that although this argument had been put to the primary judge, his Honour had not addressed it. Assuming for the moment that this is correct, the appellants should, in my view, have applied to the primary judge pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") to set aside or vary his Honour's judgment on the ground that he had not dealt with a significant submission that they had made. That course was particularly appropriate in the present case because there had been a lengthy hearing before the primary judge involving detailed evidence and submissions and the allegedly overlooked point required findings of fact possibly involving questions of credit to be made. The submission (still assuming it was in fact made) was not one that could conveniently be dealt with on appeal in the absence of findings by the primary judge.

[40] I do not suggest that parties must always approach a primary judge if it appears that the judge has overlooked a significant point in formulating the Court's judgment. It is however a course that should be adopted in the absence of particular, valid, reasons for not doing so. The primary judge is almost always in a better position than an appellate court to decide an overlooked point and appellate courts are entitled to have the benefit of a primary judge's views about matters in issue on appeal. The requirement in s 56 of the Civil Procedure Act 2005 (NSW) to have regard to the "just, quick and cheap resolution of the real issues in the proceedings" strongly supports the adoption of this course in the absence of particular reasons for the point being taken directly on appeal.

...

20. In Nominal Defendant v Livaja [2011] NSWCA 121 at [23], Basten JA ... observed that "[w]here an apparent error can readily be addressed without the need to resort to expensive and time-consuming appeal proceedings, that course should be permitted and encouraged." The failure to take that course in the present case bears strongly upon the assessment of whether or not leave to appeal should be granted.

...

22. In my opinion, leave to appeal should not be granted in circumstances where the applicant had ample opportunity to agitate the failure to deal with the disproportionality argument before the primary judge both prior to the entry of orders on 8 November 2021 and for 14 days thereafter. There was no procedural bar to that course and the primary judge was vastly better placed than this Court to make an informed assessment as to the merits of this argument. So much is reflected in the fact that it was ultimately conceded that even if leave to appeal were granted and the appeal allowed, the matter would need to be remitted to the primary judge. That would only be to add a further layer of costs to these already expensive proceedings.

1. In Mohareb v State of New South Wales (No 2)[11] Gleeson and Stern JJA said at [21]-[22] in relation to the limited circumstances in which the Court will act under r 36.16 to vary an earlier judgment:

21. It is only in limited circumstances that the Court will act under r 36.16(3A) to vary an earlier judgment: Mohareb v Kelso (No 4) [2021] NSWCA 336 at [3]; State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 at [17]- [20] (Mitchelmore JA, Stern JA, and Basten AJA).

22. As explained in Poulos v Commonwealth Bank of Australia Ltd (No 3) [2020] NSWCA 72 at [7] (Payne and Brereton JJA):

The power to re-open on such an application is subject to the significant limitation imposed by the public interest in maintaining the finality of litigation, which requires great caution in its exercise of the power, especially where what is sought would have the practical effect of re-opening the proceedings to enable a significant rehearing. It is to be exercised only where the existing judgment or order is shown to be affected by some relevant irregularity, or by a misapprehension of law or fact, such as a failure to afford a party a proper opportunity to be heard, or that the court had misapprehended a party's evidence or submissions. And while the scope of any re-opening will depend on the nature of the error or misapprehension, generally the power ought not be exercised to permit a general re-opening of the case. (Citations omitted)

1. Finally, in Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd (No 2) (Ranclose),[12] Bell CJ, Mitchelmore and Adamson JJA said at [5] in relation to the principles applicable to an application under r 36.16 (emphasis added):

5. The principles that apply to an application under r 36.16 of the UCPR are well settled and were recently summarised in State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 ("Hollingsworth") at [17]-[22]. Relevantly for present purposes:

(1) The power conferred by UCPR, r 36.16 is to be exercised "sparingly and with caution" having regard to the importance of the finality of litigation, and "does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them": Majak v Rose (No 5) [2017] NSWCA 238 at [12]- [13] (Leeming and Simpson JJA, Emmett AJA), quoted in Hollingsworth at [17].

(2) In order to enliven the exercise of the jurisdiction, what must emerge "is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing": Autodesk v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 302-303 (Mason CJ); [1993] HCA 6, quoted in Hollingsworth at [18].

(3) The reference to misapprehension in this context "is concerned with matters of oversight and inadvertence, and not with deliberate decisions which are said to be incorrect": Hollingsworth at [20], citing Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111 at [4] (Meagher and Brereton JJA).

...

1. I turn now to consider the alleged errors relied upon by the appellant which are said to enliven the Court's jurisdiction pursuant to r 36.16 of the UCPR.

1. The first alleged mathematical error made by the Court relates to the 15% negative adjustment to the comparable sale of 42 Sargents Road to the agreed analysed rate of $707/m2. The Court concluded at [200] that the adjusted rate, rounded up from $614.78/m2, was $615/m2, and the appellant here submits that it ought to have been $600.95/m2.
2. In making its calculations, the Court as judicial valuer adopted a simple mathematical approach.
3. That mathematical approach was as follows (taking a hypothetical scenario involving the goods and services tax (GST)):

(1) The amount of $1,100 comprises 10% GST.

(2) Therefore, the amount of $1,100 is equal to 110%.

(3) The amount of $1,100 which does not include 10% GST is $x equals 100%.

(4) The algebraic equation is $1,100 multiplied by 100 equals $x multiplied by 110.

(5) $110,000 equals $110x.

(6) $110,000 divided by 110 equals $110x divided by 110.

(7) Therefore x equals $1,000.

(8) Put another way, $1,100 divided by 11 multiplied by 10 equals $1,000.[13]

1. The calculations of the Court, as judicial valuer, using the approach set out at [44] above are as follows:

(1) The agreed analysed rate of 42 Sargents Road was $707/m2. Therefore, the agreed analysed rate of $707/m2 includes the 15% amount to be negatively adjusted.

(2) Therefore, the amount of $707/m2 is equal to 115%.

(3) The amount of $707/m2 which does not include the 15% negative adjustment is $x/m2 equals 100%.

(4) The algebraic equation is $707/m2 multiplied by 100 equals $x/m2 multiplied by 115.

(5) $70,700/m2 equals $115/m2x.

(6) $70,700/m2 divided by 115 equals $115/m2x divided by 115.

(7) Therefore $x/m2 equals $615/m2 (rounded up from $614.78/m2).

(8) Put another way, $707/m2 divided by 11.5 multiplied by 10 equals $615/m2 (rounded up from $614.78/m2).

1. The Court, as judicial valuer, also applied the following cross-check calculation to the calculations above at [45]: $615/m2 multiplied by 1.15 equals $707/m2 (rounded down from $707.25/m2).
2. In his affidavit, Mr Kingsbury at [13] made the following calculations:

(1) 15% of $707/m2 is $106.05/m2 (based on the calculation 707 x 0.15 equals 106.05); and

(2) $707/m2 minus $106.05/m2 equals $600.95/m2.

1. It is apparent that Mr Kingsbury's calculations involve a deduction of 15%, rather than an adjustment of 15%. That is, the appellant's adjusted rate of $600.95/m2 applies a discount of 17.65%, rather than 15% because:

(1) $707/m2 multiplied by 100 equals x multiplied by 117.65.

(2) That means $70,700/m2 equals $117.65/m2x.

(3) $70,700/m2 divided by 117.65 equals $117.65/m2x divided by 117.65.

(4) Therefore, $/m2x equals $600.95/m2 (rounded up from $600.93/m2).

1. The Court also applied the following cross-check calculation to the calculations set out at [48]: $600.95/m2 multiplied by 117.65, divided by 100, equals $707/m2 (rounded down from $707.02/m2).
2. The appellant has not established mathematical error on the part of the Court, having regard to the following cross-check calculation to the appellant's adjusted rate of $600.95/m2 for 42 Sargents Road:

(1) $600.95/m2 multiplied by 1.15 equals $691.09/m2.

1. The second alleged mathematical error relates to the 25% negative adjustment to the comparable sale of 17 John Hines Avenue to the agreed analysed rate of $825/m2. The Court concluded at [206] that the adjusted rate was $660/m2, and the appellant here submits that it ought to have been $618.75/m2.
2. The calculations of the Court, as judicial valuer, using the same approach set out above at [44] are as follows:

(1) The agreed analysed rate of 17 John Hines Avenue was $825/m2. Therefore, the agreed analysed rate of $825/m2 includes the 25% amount to be negatively adjusted.

(2) Therefore, the amount of $825/m2 equals 125%.

(3) The amount of $825/m2 which does not include the 25% negative adjustment is $x/m2 equals 100%.

(4) The algebraic equation is $825/m2 multiplied by 100 equals $/m2x multiplied by 125.

(5) $82,500/m2 equals $125/m2x.

(6) $82,500/m2 divided by 125 equals $125/m2x divided by 125.

(7) Therefore $/m2x equals $660/m2.

(8) Put another way, $825/m2 divided by 12.5 multiplied by 10 equals $660/m2.

1. The Court, as judicial valuer, also applied the following cross-check calculation to the calculations above at [52]: $660/m2 multiplied by 1.25 equals $825/m2.
2. In his affidavit, Mr Kingsbury at [20] made the following calculations:

(1) 25% of $825/m2 is $206.25/m2 (based on the calculation: 825 x 0.25 equals 206.25); and

(2) $825/m2 minus $206.25/m2 equals $618.75/m2.

1. It is apparent that Mr Kingsbury's calculations involve a deduction of 25% rather than an adjustment of 25%. That is, the appellant's adjusted rate of $618.75/m2 applies a discount of 33.34%, rather than 25% because:

(1) $825/m2 multiplied by 100 equals x multiplied by 133.34.

(2) That means $82,500/m2 equals $133.34/m2x.

(3) $82,500/m2 divided by 133.34 equals $133.34/m2x divided by 133.34.

(4) Therefore, $/m2x equals $618.75/m2 (rounded up from $618.72/m2).

1. The Court also applied the following cross-check calculation to the calculations set out above at [55]: $618.75/m2 multiplied by 133.34, all divided by 100 equals $825/m2 (rounded down from $825.04/m2).
2. The appellant has not established mathematical error on the part of the Court, having regard to the following cross-check calculation to the appellant's adjusted rate of $618.75/m2 for 17 John Hines Avenue:

(1) $618.75/m2 multiplied by 1.25 equals $773.44/m2.

Conclusion in relation to the alleged mathematical errors, and r 36.16(1)

1. To the extent that the two alleged mathematical errors were said to have impacted the Court's determination of the adjusted land value rate in the 2019, 2020 and 2021 valuing years, for the reasons above, the appellant has not established mathematical errors on the part of the Court. Accordingly, in relation to the alleged mathematical errors, the Court's jurisdiction to vary the orders pursuant to r 36.16(1) has not been enlivened.
2. In particular, notwithstanding Mr White's submission that Mr Kingsbury undertook cross-check calculations, I find that Mr Kingsbury's two calculations at [13(a)] of his affidavit are identical calculations which produce the amount of $106.05/m2, which he then deducts from the amount of $707/m2 at [13(b)] (extracted above at [6]), and are not cross-check calculations. Likewise, I find that Mr Kingsbury's two calculations at [20(a)] of his affidavit are identical calculations which produce the amount of $206.25/m2, which he then deducts from the amount of $825/m2 at [20(b)] (extracted above at [7]), and are not cross-check calculations.
3. Of course, it is accepted that in the interpretation of any provisions of the rules of court, the Court is required by s 56 of the CPA to seek to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings. However, in light of the authorities to which I have referred, I find as follows in relation to the appellant's reliance on r 36.16:

(1) the Court's jurisdiction to set aside orders should be exercised "sparingly and with caution": Ranclose at [5(1)];

(2) the appellant has not identified any "misapprehension of the facts or the relevant law" upon which the Court has proceeded: Autodesk v Dyason (No 2) at 303;

(3) nor has the appellant identified any "readily identifiable, readily rectifiable inadvertent errors to be corrected without the complication and expense of an appeal": Majak at [12];

(4) the present application is more akin to that identified in Waterhouse in relation to which the Court drew a distinction between where the Court misapprehends the facts on the one hand, and on the other, the situation where the Court does not refer in its reasons to some matter which in the belief of the person seeking reopening deserves express reference: Waterhouse at [17]. The appellant here eschewed any suggestion of legal error on the part of the Court, confining its arguments to a misapprehension of the facts;

(5) in Jandson, a case upon which the appellant, as noted, placed particular reliance, the Court of Appeal was concerned with the assessment of whether leave to appeal should be granted, and whether the primary judge had overlooked a particular argument of a party, and held that there was no procedural bar to the applicant there agitating the failure to deal with the argument before the primary judge. Here, the appellant has agitated inadvertent errors, and I do not find that there was any procedural bar to the appellant in so doing;

(6) the appellant has not identified any matter or oversight or inadvertence in the Court's mathematical calculations, the reference to "misapprehension" in this context not being concerned with "deliberate decisions which are said to be incorrect": Ranclose at [5(3)] and the authorities there collected;

(7) the Court, as judicial valuer, is not obliged, as the respondent submitted, having regard to Ranclose at [83], to act only on the basis of expert valuers who appear as witnesses; and

(8) for these reasons, the appellant has not established mathematical errors on the part of the Court, and has not discharged its onus of establishing a misapprehension of the facts so as to enliven the Court's jurisdiction under r 36.16 of the UCPR.

Whether the Court should have made adjustments for flooding and the presence of a sewer on the land

1. In relation to the alleged accidental omission of a discount for flood affectation, the appellant referred to the following paragraphs of the primary judgment.
2. At [62(2)] of the primary judgment, the Court said about the agreement of the valuers in relation to flooding:

The land is located in a "flood planning zone" (referred to as a "flood planning area" in the LLEP (cl 5.21) and the joint report of town planners) that would require on site flood storage to facilitate development.

After joint conferencing, the valuers remained in disagreement in relation to the following issues:

...

(3) the impact of flooding on development costs...

1. In relation to adjustments for flooding, the Court said at [75]:

In relation to the impact of flooding on development costs, both experts agreed that a discount is necessary to account for the additional costs associated with developing the subject land compared to the sales selected by each of them. Mr Hubbard suggested a discount of 5%, Mr Konidaris a discount of 10%.

The Valuer-General noted that in addition to making an adjustment for location, each of the valuers had made a uniform downward adjustment for flooding, each making "a value judgment". Mr Hubbard applied ‑5% uniformly to each sale, Mr Konidaris -10%. The Valuer-General submitted that the Court could accept anywhere between -5% to -10%, including as judicial valuer, -7.5%.

1. The respondent submitted that the requirements in Autodesk v Dyason (No 2) for a misapprehension of facts in relation to flooding were not "borne out". The Court had regard to flooding, summarising the flood engineers' evidence (at [53]-[58]), the impact of flooding on development costs (at [75]), and the appellant's and respondent's closing submissions including in relation to flooding (from [85] and [120] respectively). In respect of flooding, "the Court proceeded in full knowledge of the facts".
2. The respondent also drew attention to the role of the Court as judicial valuer and that it was not obliged to act only on the basis of the evidence of experts led by either party.
3. In relation to the sewer pipe, the appellant drew attention to the following paragraphs in the primary judgment:
4. At [62(7)] of the primary judgment, the Court said as follows:

The land is constrained by an easement for sewage purposes which bisects the land. The impact of the easement was not agreed.

After joint conferencing, the valuers remained in disagreement in relation to the following issues:

...

(2) the impact of the sewer pipe...

1. At [73]-[74] of the primary judgment, the Court said:

73. Following joint conferencing, Mr Konidaris made a 10% adjustment to the land value of the subject land when compared to the sales selected by him, opining that such adjustment captures the time, cost and risk inherent in the potential relocation of the sewage infrastructure.

74. Notwithstanding his acknowledgement that the land is "constrained" by the easement, Mr Hubbard placed no detriment on the location of the sewage infrastructure.

Accordingly, Mr Konidaris made a 10% adjustment to the land value of the subject land compared to the sales to capture the time, cost and risk inherent in the potential relocation of the sewage infrastructure. Further, the appellant submitted, while the Valuer-General's expert Mr Hubbard initially placed no detriment on the location of the pipe, in oral evidence he conceded that an adjustment of between 2-5% is warranted.

1. In relation to adjustments for the presence of the sewer pipe, the Court said at [172]:

The Valuer-General referred to the explanation of Mr Konidaris for his adjustment of 10% in relation to the easement, in effect, reiterated in cross examination. The cross examination of Mr Hubbard went to the same point, Mr Hubbard accepting an adjustment of 2% (assuming an adjustment of this nature is legally warranted). The Valuer-General submitted that the adjustment contended for by the appellant arises from the risk of an inability to build over the easement and the flow on effect for the development potential of the subject land, and that even this risk needs to be seen in the context of DA 1134/2021, lodged with Liverpool City Council on 29 September 2021, and the earlier approved, though lapsed, DA in 2013, DA 1321/2011.

The Valuer-General referred to the parties' agreement that restrictions on title are ignored. That prohibition, the Valuer-General submitted, extends to restrictions arising from the Sydney Water Act: Royal Sydney at 623-624; and see by analogy Gollan at 98 where restrictions under the Australian Jockey Club Act 1873 (NSW) mirrored the reservations on title. Here, the reservation on title was, relevantly, in the following terms:

[An] easement or right to use for the construction and maintenance of works for sewerage purposes the surface and the subsoil or undersurface of the said land ...the transferor doth hereby covenant with the transferee that the transferor will not erect construct or place any building or other structure [whatsoever] on the said land.

1. In relation to adjustments for flooding and the sewer pipe, the appellant drew in particular attention to [199] of the primary judgment in relation to 42 Sargents Road, where the Court said:

199. The Court has made an overall negative adjustment of 15%, taking into account both the positive and negative differences in the characteristics of the two properties, namely, the property's dissimilar location, inferior exposure / visibility from a major arterial road, inferior ease of access, smaller land area, lack of improvements, and the same zoning and lack of improvements directly compared to the subject land.

and to [205] of the primary judgment, where the Court said in relation to 17 John Hines Avenue:

205. The Court has made an overall negative adjustment of 25%, taking into account both the positive and negative differences in the characteristics of the two properties, namely the property's dissimilar location, inferior exposure / visibility from a major arterial road, inferior ease of access, smaller land area, lack of improvements, the date of sale similar to the valuing year 2019, and the same zoning directly compared to the subject land.

and submitted that the Court inadvertently omitted to include an adjustment for flooding and likewise for the sewer easement issue.

1. The respondent submitted that the Court proceeded "in full knowledge of the sewer issue", summarising the evidence (at [17]-[21], [28], [35], [57] and [65]), referring to the impact of the sewer pipe (at [73]-[74]), and to the appellant's and respondent's closing submissions including, inter alia, in relation to the sewer (at [118]-[119] and [169]-[174]).
2. Further, the respondent submitted that in relation to both the flooding issue and that of the sewer pipe, the complexity of calculations evident in the affidavit of the appellant's solicitor was "contrary to the essence of an error being readily rectifiable and/or a simple correction". Mr Kingsbury's affidavit in "its length and multiple pathways" was submitted by the respondent to speak volumes against the application of either r 36.16 or 36.17 in the present case.
3. Having regard to the overriding purpose in s 56 of the CPA, I find that the appellant has not established any relevant misapprehension on the part of the Court of the facts in relation to either the flooding issue or the sewer pipe issue, and the characteristics of the subject property and the two comparable properties, such as to enliven the jurisdiction of the Court pursuant to r 36.16. The Court's apprehension of the relevant facts and the parties' submissions in relation to them is recorded at [53]-[58], [75], from [85] and [120], and at [17]-[21], [28], [35], [65], [73]-[74], [118]-[119] and [169]-[174] of the primary judgment.

1. In its written submissions in reply and at the hearing of the notice of motion, the appellant clarified that it relies on the slip rule only in relation to the alleged mathematical errors.
2. In Storey & Keers Pty Ltd v Johnstone (Storey & Keers),[14] McHugh JA at 449 E-G said in relation to the slip rule and the jurisdiction of the Court to correct accidental slips or omissions as follows:

The Courts of Common Law and the Court of Chancery had inherent power to correct any clerical mistake or error in a judgment or order if it was the result of an accidental slip or omission: Lawrie v Lees (1881) 7 App Cas 19 at 34-35. This power was an exception to the general principle that a party is bound by judgment or order once it has been drawn up unless he can set it aside: Kinch v Walcott [1929] AC 482. But although the principle of the slip rule is clear enough in conception, its application in practice has often proved difficult. The dividing line between a mistake or error which Is the result of an accidental slip or omission and a mistake or error which is the difficulty became much greater when it was decided that an error might be the result of an accidental slip or omission even though, because of the inadvertence of the party's legal representative, the point was not raised at the hearing of the action: cf L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] [1982] HCA 59; (1982) 151 CLR 590 at 594-595.

1. His Honour said at 453F that the rationale of the slip rule "requires that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist",[15] and "in general the test of whether a mistake or omission is accidental is that applied by Lord Herschell in Hatton v Harris (at 558) if the matter had been drawn to the court's attention would the correction at once have been made?"[16]
2. In Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc and Others (Newmont Yandal),[17] Spigelman CJ (Santow JA and Handley AJA agreeing) said as follows in relation to the meaning of "error" at [89]-[90]:

89 I have no doubt ... that the orders made by Austin J had consequences which Austin J had not intended. This engages the inherent jurisdiction to correct an order, in accordance with authoritative restatement of the relevant jurisdiction in DJL.

90 I will indicate below why it is also an "error" within the slip rule ...

1. Further, Spigelman CJ (Santow JA and Handley AJA agreeing) said at [116] as follows:

116. By reason of the insertion of the overriding objective into the Civil Procedure Act 2005 words such as "error" and "correct" in the slip rule should not be given a narrow interpretation. In my opinion, carrying into effect the actual intention of the judge making the order, and making sure that the order did not have a consequence which the judge clearly intended to avoid, falls within the natural and ordinary meaning of the word "correction", particularly as understood in the light of the overriding purpose...

1. At [140], Spigelman CJ (Santow JA and Handley AJA agreeing) said as follows:

140. As to Newmont's second proposition, there is no relevant "controversy". There is more than one way in which the Court's intention can be implemented. The fact that possible alternatives were canvassed by Austin J at different times does not create anything in the nature of a controversy in the sense that that word was used by Lockhart J in Elyard Corporation. Nor is there a "real difference of opinion" in the sense that these words were used by Lockhart J and by McHugh JA in Storey & Keers.

1. In Burrell v The Queen (Burrell),[18] Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ said at [21] that the Court's power to correct an error arising from accidental slip or omission does not permit "reconsideration, let alone alteration, of the substance of the result that was reached and recorded".
2. In El Boustani v Minister Administering the Environmental Planning and Assessment Act 1979 (No 2) (El Boustani),[19] Pepper J at [12] said as follows in relation to the slip rule (emphasis added):

The rule generally applies to the correction of clerical errors or accidental omissions or slips, that is to say, mistakes upon no real difference of opinion can exist and upon which no further exercise of a court's discretion is required. It does no confer power to supplement or vary final orders by making substantive alterations to determine points that were not argued, considered or decided at the hearing.

Alleged mathematical errors, and the slip rule in r 36.17

1. In relation to the alleged mathematical errors, the Courts' calculations, the Court's cross-checking of its own calculations, the appellant's calculations and the Court's cross-checking of the appellant's calculations are set out above at [43]-[50(1)] in relation to 42 Sargents Road and at [52]-[57(1)] in relation to 17 John Hines Avenue.
2. In its submissions in reply, the appellant submitted that the alleged mathematical errors were susceptible to correction by the use of the slip rule, and that it was "not seeking revision of the substantive reasons for the orders; rather ... only to ensure that the land values determined by the Court carry into effect the actual intention of the Court expressed in its Reasons": citing Newmont Yandal at [116] (Spigelman CJ) (Santow JA and Handley AJA agreeing). The appellant submitted that the errors were not controversial, or ones about which "reasonable minds may differ". Putting it another way, the appellant submitted that the correct range of land values to be applied would have been substituted "as a matter of course" had the mathematical errors been drawn to the attention of the Court: citing Hillpan Pty Limited v Roads and Traffic Authority of New South Wales [No 2] (Hillpan) at [6] (Cowdroy J).[20]
3. For the reasons given above at [50] and [57], the appellant has not discharged its onus of establishing mathematical error on the part of the Court. To the extent that the calculations of the Court, as judicial valuer, be ones about which reasonable minds might differ, that is not sufficient to render the Court's calculations susceptible to correction by use of the slip rule in r 36.17.
4. It is accepted that the slip rule should not be given a narrow interpretation (Newmont Yandal at [116]) and that the Court must seek to give effect to the overriding purpose in s 56 of the CPA. However, having regard to the authorities set out above, I find that the appellant has not discharged its onus of proving mathematical errors in the Court's calculations for the following reasons:

(1) the power granted to the Court under the slip rule is to be exercised sparingly in view of the public interest in the finality of litigation and the variation of an order of the Court after entry is an exceptional course;

(2) the alleged mathematical errors would not, objectively, be treated as the result of an "accidental slip or omission", the proposed amendment to the orders requiring the exercise of an independent discretion and being a matter upon which a real difference of opinion might exist: Storey and Keers at 449E-G, 453F;

(3) nor has the appellant established that the orders in the primary judgment, objectively, have consequences not intended by the primary judge: Newmont Yandal at [89];

(4) unlike in Hillpan, the appellant asks the Court to substitute figures under the slip rule which involve a further exercise of discretion;

(5) the appellant has not pointed to any clerical error or accidental slip in the primary judgment, that is a mistake upon which no real difference of opinion can exist and upon which no further exercise of the Court's discretion is required: El Boustani at [12];

(6) in effect, the appellant seeks to rely on the slip rule to seek reconsideration and alteration of the substance of the result that was reached and recorded: Burrell at [21];

(7) as submitted by the respondent, determining the actual land value within a range in this case involved an exercise of discretion, the discretionary exercise being something about which reasonable minds might differ, the alleged mathematical errors being properly considered as a matter of controversy and hence it not being available to seek to vary the alleged mathematical errors under the slip rule; and

(8) accordingly, the appellant has not discharged its onus in establishing that the Court has jurisdiction pursuant to the slip rule in r 36.17 to correct what are said to be mathematical errors in the Court's calculations.

1. At the hearing of the notice of motion Mr White submitted that the appellant would like an opportunity to be heard on the question of costs. The Court suggested it would decide costs on the papers and Mr White agreed.

(1) The appellant's notice of motion filed 10 April 2024 is dismissed.

(2) Costs of the motion reserved. The parties to agree a timetable for the filing of evidence and submissions in relation to the question of costs to be decided on the papers.

15 July 2024 - 15/07/2024 - cross-reference updated to [50] in paragraph [89]

[1] (2006) 149 LGERA 439; [2006] NSWCA 353 at [83] (Spigelman CJ) (Beazley, Bryson and Basten JJA and Campbell J agreeing).

[2] [2018] NSWLEC 50 at [136] (Moore J).

[3] [2017] NSWCA 238 at [19] (Leeming and Simpson JJA and Emmett AJA).

[4] Wentworth v Woollahra Municipal Council (No 2) [1982] HCA 41; (1982) 149 CLR 672 at 684; [1982] HCA 41 (Wentworth) (Mason ACJ, Wilson and Brennan JJ); State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29 at 38; [1982] HCA 51 (Mason and Wilson JJ).

[5] Wentworth at [684] (Mason ACJ, Wilson and Brennan JJ); Penrith City Council v Dincel Construction System Pty Limited (No 5) [2021] NSWLEC 22 at [61] (Robson J).

[6] [1993] HCA 6; (1993) 176 CLR 300 at 303; [1993] HCA 6 (Mason CJ (in dissent)).

[7] [2020] NSWCA 332 at [7] (Bell P, Meagher and Payne JJA).

[8] [2020] NSWCA 335 at [6] (Basten and Meagher JJA and Emmett AJA).

[9] [2015] NSWCA 362 at [17] (Basten JA, Sackville and Emmett AJJA).

[10] [2022] NSWCA 61 at [16]- [17], [20] and [22] (Bell CJ) (Macfarlan and White JJA agreeing).

[11] [2024] NSWCA 69 at [21]- [22] (Gleeson and Stern JJA).

[12] [2024] NSWCA 13 at [5] (Bell CJ, Mitchelmore and Adamson JJA).

[13] These calculations are illustrated in JFN Murray, Valuation Practice (Problems and Answers) (4th ed, revised 1975) at 20-21 ('Problem 3 of Unimproved Values'), 29-31 ('Problem 10 of Unimproved Values') and at 94-96 ('Problem 7 of Valuation of Improvements'); JFN Murray, Principles and Practice of Valuation (5th ed, revised and enlarged May 1973) at 344-345 ('Deductions from Gross Realisation'); and RO Rost and HG Collins, 'Explanations re Margin for Developer, Valuation of Land Suitable for Subdivision' in Land Valuation and Compensation in Australia (Reprinted with corrections 1973) at 158-159.

[14] (1987) 9 NSWLR 446 at 449E-G (McHugh JA).

[15] Storey & Keers at 453F (McHugh JA), cited in Turner v O'Bryan-Turner (No 4) [2022] NSWSC 1380 (Turner) at [24] (Ward P).

[16] Storey & Keers at 453F (McHugh JA), cited in Turner at [22] (Ward P).

[17] (2007) 70 NSWLR 411; [2007] NSWCA 195 at [89]- [90] (Spigelman CJ) (Santow JA and Handley AJA agreeing).

[18] (2008) 238 CLR 218; [2008] HCA 34 at [21] (Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ), cited in R v Rajkovic (2015) 123 SASR 51; [2015] SASCFC 81 at [10] (Gray J).

[19] [2013] NSWLEC 25 at [12] (Pepper J).

[20] [2001] NSWLEC 58 at [6] (Cowdroy J).