Expandamesh Pty Ltd v Sydney Metro (No 4) [2023] NSWLEC 105

Land and Environment Court New South Wales

Medium Neutral Citation: Expandamesh Pty Ltd v Sydney Metro (No 4) [2023] NSWLEC 105 Hearing dates: On the papers – final written submissions on 13 October 2023 Date of orders: 18 October 2023 Decision date: 18 October 2023 Jurisdiction: Class 3 Before: Moore J Decision: See orders at [58] Catchwords: COSTS – compensation claim for compulsory acquisition of substratum for railway tunnels – preliminary issue whether compensation claim barred by provision of Transport Administration Act 1988 – Applicant succeeds on preliminary point at first instance – Respondent successful on appeal on preliminary point – remitter to determine costs at first instance – Applicant proposes it be awarded costs at first instance – Respondent had made what it described as a Calderbank offer prior to first instance hearing – Respondent proposes Applicant should pay Respondent's costs up to the expiry of the Calderbank offer on the ordinary basis and on the indemnity basis thereafter – Respondent's fallback position that there be no order for costs at first instance – Respondent's offer required effective capitulation of Applicant – offer not proper Calderbank offer – Applicant's non-acceptance of offer also reasonable – need to preserve earlier costs outcomes in preliminary proceedings – Respondent to pay Applicant's costs of first instance hearing and of the costs' consideration other than those costs subject to earlier costs orders Legislation Cited: Land Acquisition (Just Terms Compensation) Act 1991 Transport Administration Act 1988, cl 2(1)(a) of Sch 6B Uniform Civil Procedure Rules 2005, r 20.26 Cases Cited: Bartlett v Australia & New Zealand Banking Group Ltd (No 2) [2016] NSWCA 142 Brock v Roads and Maritime Services (formerly Roads and Traffic Authority of NSW) (2012) 191 LGERA 267; [2012] NSWCA 404 Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333 Croghan v Blacktown City Council [2019] NSWCA 2480 Expandamesh Pty Ltd v Sydney Metro [2022] NSWLEC 43 Expandamesh Pty Ltd v Sydney Metro (No 2) [2022] NSWLEC 109 Expandamesh Pty Ltd v Sydney Metro (No 3) [2022] NSWLEC 137 Landan Development Pty Ltd v Sydney Metro; Opera Australia v Sydney Metro; Altomonte Holdings Pty Ltd v Sydney Metro [2019] NSWLEC 65 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 Sydney Metro v Expandamesh Pty Ltd [2023] NSWCA 200 Tempe Recreation (D.500215 and D.1000502) Reserve Trust v Sydney Water Corporation (2014) 88 NSWLR 421; [2014] NSWCA 437 Texts Cited: Ritchie's Uniform Civil Procedure NSW Category: Costs Parties: Expandamesh Pty Ltd (Applicant) Sydney Metro (Respondent) Representation: Counsel: T Hale SC/D Robertson, barrister (Applicant) R Beasley SC/B Kaplan, barrister (Respondent)