Land and Environment Court of New South Wales CITATION : Richtech v Valuer-General (2) [2005] NSWLEC 29 Richtech Pty Ltd Applicant PARTIES : Valuer-General Respondent FILE NUMBER(S) : 30349-30374 of 2004 CORAM: Roseth SC KEY ISSUES: Costs :- whether costs should be awarded where the value determined by the Court is closer to the value contended by the applicant than the Valuer-General DATES OF HEARING: 07/02/2005 DATE OF JUDGMENT: 02/09/2005 Mr N Bilinsky, barrister LEGAL REPRESENTATIVES: Mr J Maston, barrister JUDGMENT: - 4 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 9 May 2005 30349-30374 of 2004 Richtech Pty Ltd v Valuer-General (2) JUDGMENT 1 Senior Commissioner: This is an application for costs in respect of 26 appeals against the valuation of land at Seaside City south of Tweed Heads in which the applicant was successful (Richtech Pty Ltd v Valuer-General [2004] NSWLEC 291). The applicant now seeks the award of costs. Background 2 On 22 June 2004 the Court found that the total value of the land was $1,376,000. The Valuer-General had valued it at $7,535,000, while the applicant contended that the correct value was $1,042,000. The two issues that went to the heart of the decision were: · whether the land had a reasonable prospect of development within the short to medium term (ie within a five-year period); and · whether the comparable sales used by the Valuer-General's expert witness could reasonably be applied to the subject land. 3 The first of these issues was a planning issue, relevant to a town planner. The second was a valuation issue relevant to a valuer. The respondent filed and served expert reports by a planner and a valuer within the time constraints imposed by the Court. The applicant produced expert reports by a planner and valuer on the day of the hearing. In the event the Court accepted the applicant's evidence, concluding that the land had no development potential in the short to medium term, and that the comparable sales on which the Valuer-General relied were so different from the subject land that they could not be reasonably applied. Submissions 4 The applicant submitted that it should be awarded costs for the following reasons: · The value determined by the Court was much closer to the value contended by the applicant than the Valuer-General's valuation; · Because of the large discrepancy between of the Valuer-General's valuation and that of the Court's, the applicant had no alternative but to appeal. It should not have to carry the cost of an appeal that is forced upon it. · Since 1993 there have been four appeals before the Court for the same land. 5 The respondent submitted that costs should not be awarded for the following reasons: · The applicant was not successful on all the appeals or on all the points in the appeal. · The applicant filed and served no expert evidence up to the date of the hearing. The two expert reports on which the applicant eventually relied emerged during the hearing. · The respondent conducted the case in a regular manner, meeting the procedures and time constraints imposed by the Court. It relied on the evidence of Mr G Burgis, a qualified valuer with long experience in the area. The fact that the Court rejected Mr Burgis' evidence is not a reason for awarding costs. Findings 6 Division 2 of Part 16 of the Court's Rules requires me to consider, when an application for costs is made, whether the awarding of costs would be fair and reasonable in the circumstances of the case. The circumstances of this case persuade me that, on balance, it would not be fair and reasonable to award costs. My reasons are as follows: 7 First, the fact that the value determined by the Court is closer to that contended by the applicant than the Valuer-General's valuation is not a reason for awarding costs. 8 Second, the fact that there have been four appeals in relation to the same land since 1993 is also not a reason for awarding costs. It may even be an error of law to base the award of costs on that fact. 9 Third, while Mr Burgis' evidence would have been more convincing if he had dealt with the difference between his valuation and the Court's determination of the land's value for the preceding year, his failure to deal with this aspect was not an error that justifies the award of costs. Mr Burgis' evidence was unconvincing, but it cannot be said that he did not hold his views honestly, or that he went outside normal professional practice to arrive at them. While he presented an opinion that the Court did not accept, it was an opinion that a professional person could hold rationally. 10 Fourth, the fact that the applicant disregarded the Court's procedures and time constraints stands against it. The filing of the evidence during the hearing caused the respondent to assume, until the day of the hearing, that the applicant did not intend to rely on expert evidence. When the applicant finally produced its expert reports, it was too late for the opposing experts to meet and discuss their differences. The lack of opportunity for the experts to confer made the hearing longer, more complicated and more costly. The blame for that rests entirely on the applicant. 11 For the above reasons the application for costs is dismissed. Order 1. The application for the award of costs in respect of the decision Richtech Pty Ltd v Valuer-General [2004] NSWLEC 291 is dismissed. __________________ Dr John Roseth Senior Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.