Contara Pty Ltd v Sydney Metro (No 2) [2024] NSWLEC 45

Land and Environment Court New South Wales

Medium Neutral Citation: Contara Pty Ltd v Sydney Metro (No 2) [2024] NSWLEC 45 Hearing dates: 19 March, 2 May 2024 Date of orders: 02 May 2024 Decision date: 02 May 2024 Jurisdiction: Class 3 Before: Pain J Decision: The Court orders: 1. In relation to the Respondent's notice of motion dated 2 August 2023 costs are in the cause. Catchwords: COSTS – award of costs of notice of motion to dismiss notices to produce in compulsory acquisition compensation claim – costs in the cause order made Legislation Cited: Land Acquisition (Just Terms Compensation) Act 1991 (NSW) Land and Environment Court Rules 2007 (NSW), r 3.7 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Croghan v Blacktown City Council (2019) 100 NSWLR 757; [2019] NSWCA 248 Dibb v Transport for NSW (No 2) [2024] NSWLEC 11 Dillon v Gosford City Council (2011) 184 LGERA 179; [2011] NSWCA 328 Minister for Environment v Florence (1979) 21 SASR 108 Category: Costs Parties: Contara Pty Ltd (Applicant) Sydney Metro (Respondent) Representation: Counsel: R Hall SC with T Poisal (Applicant) C Norton (Respondent)

Solicitors: Speed and Stracey Lawyers Pty Limited (Applicant) Ashurst Solicitors (Respondent) File Number(s): 2023/80464-003

EX TEMPORE JUDGMENT on costs 1. The Applicant seeks compensation under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) for the compulsory acquisition of its interest in land in 37 Bligh Street Sydney by Sydney Metro the Respondent. This Class 3 proceeding was commenced on 10 March 2023. 2. On 19 July 2023 the Applicant filed and served two notices to produce on Sydney Metro the Respondent seeking a number of categories of documents. 3. On 2 August 2023 the Respondent filed a notice of motion seeking to set aside both notices to produce. The Applicant opposed the notice of motion. The notice of motion was to be heard on 19 March 2024. The parties agreed on revised terms of the notices to produce making it unnecessary to hear and determine the notice of motion. By consent, the Court made orders varying the terms of the notices to produce and other consequential orders. 4. The parties are in dispute about the appropriate costs order in relation to the Respondent's notice of motion. The Respondent submits that the Court should order that each party is to pay its own costs of the motion. The Applicant submits that the appropriate costs order for the motion is costs in the cause. 5. The parties agree that a compromise was reached in the relation to the notices to produce the subject of the notice of motion and the Court does not need to further consider the events after the notice of motion was filed. As the argument developed in the course of the hearing, the focus of the Respondent's position was the negotiations between the parties' solicitors as reflected in correspondence before the notices to produce were filed in court by the Applicant following which the Respondent then filed its notice of motion as follows. 6. The circumstances leading to the filing of the notice of motion included: 1. Initial draft notice to produce sent to the Respondent on 16 June 2023 by the Applicant. 2. In a letter dated 30 June 2023 from Ashurst to Speed and Stracey, the Respondent objected to the draft notice to produce on a number of bases including lacking legitimate forensic purpose, oppression, uncertainty and prematurity. The Respondent agreed to voluntarily produce a limited number of documents. 3. A letter dated 4 July 2023 from Speed and Stracey to Ashurst: 1. Disagreed with the matters raised by Ashurst asserting that the documents sought did serve a legitimate forensic purpose inter alia; 2. Noted that Speed and Stracey was willing to discuss how categories might be reduced; and 3. Pressed for the production of all documents by 7 July 2023 (then in three days' time and after the notices to produce had been with the Respondent for three weeks) and rejected the limited offer for voluntary production. 1. A letter dated 7 July 2023 from Ashurst to Speed and Stracey stated the Respondent intended to file a notice of motion to have the notices to produce set aside if pressed in the current form. 2. On 10 July 2023 the Respondent voluntarily produced about 289 documents which production by the Respondent was said to substantially address paragraphs 3, 4, 5, 12, 13 and 14 of the notices to produce. 3. A letter from Speed and Stracey to Ashurst dated 19 July 2023 stated that the Applicant was not satisfied with the documents produced by the Respondent, continued to press for the production of each of the remaining categories of documents (1-15) referred to in the notices to produce and noted that paragraph 12 could be limited and paragraphs 8 and 9 would not be further pressed if an admission was provided by the Respondent. Notices to produce filed in the Court the same day were attached to the letter. 4. The Respondent's notice of motion to set aside the notices to produce was filed on 2 August 2023. 5. A s 34 conference was held on 8 August 2023.