Ibrahim and Mariette Doueihi and Anor v Roads and Traffic Authority of New South Wales (No 2) [2004] NSWLEC 80

Land and Environment Court of New South Wales

CITATION : Ibrahim and Mariette Doueihi and Anor v Roads and Traffic Authority of New South Wales (No 2) [2004] NSWLEC 80 FIRST APPLICANTS Ibrahim and Mariette Doueihi

PARTIES : SECOND APPLICANTS A & M Doueihi Pty Limited

RESPONDENT Roads and Traffic Authority of New South Wales FILE NUMBER(S) : 30421 of 2002 CORAM: Cowdroy J KEY ISSUES: Valuation of Land :- Compulsory acquisition of land - Costs - alleged fundamental change in claim after offer of compromise made LEGISLATION CITED: Land and Environment Court Rules 1996, Pt 13 r 27 Supreme Court Rules 1970, Pt 22 r 3, Pt 52A r 22 CASES CITED: DATES OF HEARING: 10/03/2004 DATE OF JUDGMENT: 03/12/2004

APPLICANTS Ms V. Culkoff (Barrister)

SOLICITORS Russo and Partners LEGAL REPRESENTATIVES: RESPONDENT Mr R. Lancaster (Barrister)

SOLICITORS Henry Davis York

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 30421 of 2002

Cowdroy J

12 March 2004 Ibrahim Doueihi and Mariette Doueihi First Applicants A & M Doueihi Pty Limited Second Applicant v Roads and Traffic Authority of New South Wales Respondent Judgment No 2 – Costs 1 Judgment was delivered in these proceedings on 5 March 2004 and the question of costs was reserved for argument on 10 March 2004. 2 An offer of compromise was made by the respondent to the applicants on 6 March 2003 in the amount of $1,100,000 for compensation, exclusive of legal costs. Pursuant to Part 22 rule 3 of the Supreme Court Rules 1970 (which is adopted pursuant to Part 13 rule 27 of the Land and Environment Court Rules 1996) such offer expired on 4 April 2003. 3 At the time the offer of compromise was made the hearing had been set down for between 7 April 2003 and 10 April 2003. On 4 April 2003 such hearing dates were vacated because new issues had arisen including town planning issues and the respondent required additional time for further investigation by their experts. 4 The applicants submit that such new issues resulted in a fundamental change in the nature of proceedings so as to constitute a different claim. The applicants submit that after the discovery of the new issues there was a fundamental change to that claim. The applicants say that the "goal posts" were moved in such a way that there was no offer available for acceptance after the vacation of the hearing dates and the discovery by the respondent of the new issues. 5 The respondent submits that as it is the successful party the applicants should pay its costs from after the date of the offer of compromise, namely 6 March 2003 pursuant to the general rule. The respondent also submits that there was no fundamental alteration of the applicants' claim because the applicant was at all times aware of the unlawful use and the amended points of claim filed by the applicant on 24 March 2003 were not changed after that time. 6 Part 13 rule 27 of the Land and Environment Court Rules 1996 provides:-