COUNCIL OF THE MUNICIPALITY OF CANTERBURY v SCARF [1990] NSWCA 47

COUNCIL OF THE MUNICIPALITY OF CANTERBURY v SCARF SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and MEAGHER JJA 16 October 1990, 16 October 1990 [1990] NSWCA 47

LAND and ENVIRONMENT — LOCAL GOVERNMENT ACT — VALUATION — RESUMPTION — COSTS — ERROR OF LAW — NO QUESTION OF PRINCIPLE

Clarke JA In March and July 1989 Bignold J, sitting in the Land and Environment Court of New South Wales, heard a claim for compensation brought pursuant to s536B-C of the Local Government Act by the present respondent against the appellant, the Council of the Municipality of Canterbury. On 9 August 1989 he gave his judgment whereby he determined compensation in the sum of $190,000. In his reasons for judgment he concluded by saying: "The applicant having been successful in its claim is entitled to an order for costs except for costs incurred on the reopening of the hearing in respect of which there shall be no order for costs."

The appellant (that is the Council, and I shall continue to refer to it as "the Council") has appealed against the costs order which is expressed in the paragraph I have set out. While there are a number of grounds of appeal, there are two essential challenges to it. The first is that his Honour erred in failing to allow the parties to argue the question of costs and the second and substantive point is that his Honour erred in law in making his award of costs. In order to understand those points, it is necessary to say something more about the facts leading to the litigation.

The respondent's land, which is known as 53 Evaline Street, Campsie, was resumed by notice published in Government Gazette Number 37 of 4 March 1983 pursuant to s102 of the Public Works Act 1912. The respondent lodged a claim for compensation in accordance with s103 which applies by virtue of s536C of the Local Government Act in the present circumstances. The Council sought a valuation from the Valuer General as it was obliged to do by the Public Works Act. That valuation was supplied in due course and in it the Valuer General valued the land at $195,000.