Lalic, D v Roads and Traffic Authority of New South Wales [2005] NSWLEC 754

Land and Environment Court of New South Wales

CITATION : Lalic, D v Roads and Traffic Authority of New South Wales [2005] NSWLEC 754

APPLICANT Lalic, D PARTIES : RESPONDENT Roads and Traffic Authority of New South Wales

FILE NUMBER(S) : 31072 of 2002

CORAM: Talbot J

Practice and Procedure :- application for enforcement of judgment - application for stay of judgment and orders. KEY ISSUES: Costs:- costs of notices of motion for enforcement and for stay.

Land Acquisition (Just Terms Compensation) Act 1991 LEGISLATION CITED: Land and Environment Court Act 1979

DATES OF HEARING: 13/12/2005 EX TEMPORE JUDGMENT DATE : 12/13/2005

APPLICANT Mr J J Webster SC with Miss M Carpenter (barrister) SOLICITORS Albert A Macri Partners LEGAL REPRESENTATIVES:

RESPONDENT Mr J B Maston (barrister) SOLICITORS Corrs Chambers Westgarth

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Talbot J

13 December 2005

31072 of 2002 Lalic, D v Roads and Traffic Authority of New South Wales

EX TEMPORE JUDGMENT 1 Talbot J: On 12 August 2005, the then Chief Judge of the Land and Environment Court determined how compensation claimed by the applicant should be assessed and ultimately, on 26 August 2005, in accordance with Short Minutes of Order of that date, assessed compensation payable in the total sum of $2,331,932.47 and ordered that the respondent pay the applicant's costs of the proceedings as agreed or as assessed. 2 I am informed, and it does not appear to be in dispute, that the respondent filed a Notice of Appeal to the Court of Appeal without appointment on 7 September 2005. On 22 November 2005, the applicant filed a Notice of Motion, in effect seeking payment of the balance of the compensation outstanding after making an allowance for a payment made by the respondent, being 90 percent of the Valuer General's valuation comprised in a Compensation Notice. 3 On 6 December 2005, a formal Notice of Appeal was lodged. In the meantime, correspondence took place following the filing and service of the Notice of Motion by the applicant. The thrust of the correspondence appeared to concentrate on a concern by the applicant that she could not pay outstanding commitments which she indicated she had been unable to meet as a consequence of the litigation. The result of the correspondence following the production of various invoices to the respondent authority was that it would agree to pay the applicant $310,369.28. The agreement to make that payment was contained in a letter to the applicant's solicitors dated 8 December 2005. 4 On 9 December 2005, the matter still remaining unresolved by agreement, the respondent filed a notice of motion seeking a stay of what is referred to in the Notice of Motion as "the judgment and orders of McClellan CJ" pending determination by the Court of Appeal. 5 The Notices of Motion were listed for hearing this morning. Preliminary submissions took place, generally concerned with the capacity of the Court to take any further steps in the proceedings, either on the basis that the matters had been finally determined in the litigation or that Part 15 rule 9 precluded any further intervention by the Court. That argument was put forward by the respondent. 6 The applicant made reference to the effect of s 66 and s 68 of the Land Acquisition (Just Terms Compensation) Act 1991 ("the Just Term Act"), together with powers apparently contained in s 24 of the Land and Environment Court Act. Reference was also made to s 20(4) of the Land and Environment Court Act in its present terms. 7 The Court has not been asked to determine whether or not either party was entitled to the relief that was respectively being sought in the Notices of Motion because, in the course of the hearing this morning, an agreement was formally reached between the parties and the Court was asked to note the agreement. That note has been initialled by me and placed with the papers. The consequence of the agreement being reached is that, subject to the question of costs in relation to the Notices of Motion, each of the respective Notices of Motion were dismissed. 8 Mr Webster has expressed some harsh criticisms of the respondent as a public authority for its failure to positively respond to what his client clearly saw as an obligation to meet the commitment to compensation following the determination by the Chief Judge and pursuant to the statutory provisions contained in the Just Terms Act. 9 The respondent, nevertheless, maintains the position that the Court is not in a position to adjudicate on the Notice of Motion filed by the applicant, not only from the point of view of finality of the orders that are made, but arguably on the basis that there may be no power in the Court to take the matters further than the orders made by the Chief Judge on 28 August 2005. 10 Presumably the Notice of Motion of 9 December 2005, relied upon by the respondent, assumed that the Court might decide that execution was a power that the Court maintained and that it sought to have any such execution stayed pending the determination by the Court of Appeal. 11 As I observed during discussion this morning, it would be inappropriate and most unfortunate if the Court made any firm observations about whether there is power to deal with either of the Notices of Motion, pursuant to the legislative regime under which compensation is assessed. From time to time, doubts have been expressed as to whether the Court does have a power of enforcement in the sense of making an order for payment as opposed to making the determination of the amount of compensation following the lodgement of an objection in accordance with s 66(1) of the Just Terms Act. 12 The applicant regards the payment of $310,369.28 as representing an advance payment of costs incurred by her in the litigation although not expressly stated in those terms, there having been no formal assessment. On the other hand, the respondent regards the payment as an advance payment of compensation on the basis that there having been no assessment and determination of the costs payable the payment, although referable to disbursements said to be incurred, it should not be regarded as an acknowledgment of liability for those costs. 13 However, the underlying nature of the determination of the amount of the payment is to enable the applicant to meet its obligations to third parties being, as would appear from the material tendered, expert witnesses and legal representatives. The respondent has acknowledged, at least to the extent that it has for the purposes of reaching an agreement, that these costs were apparently referable to the litigation. 14 The decision that the Court has to make in relation to the question of costs on the respective Notices of Motion is a difficult one, having regard to the fact that the issues between the parties have not been determined in the sense that I am unable to make an assessment of the justification on legal grounds for either of the Notices of Motion. Nevertheless, the matter has been settled in a way that recognises that it is just and reasonable for the respondent to meet a payment which enables the applicant to deal with outstanding commitments arising in relation to the litigation. 15 I am satisfied that, the payment having been made, the respondent has acknowledged that ultimately it would be responsible for at least that sum on present expectations. In that context, I regard the applicant as having been successful in relation to its own Notice of Motion. Furthermore, having regard to the nature of the proceedings where a Crown authority or State authority has acquired the private lands of an individual against her will, it is in the interests of justice that the applicant be compensated for her costs of achieving the result that materialised in the agreement. 16 In the circumstances, I order that the respondent pay the applicant's costs in relation to the Notices of Motion.