Land and Environment Court of New South Wales CITATION : Statewide Property Ventures Pty Ltd v Valuer-General [2008] NSWLEC 139 APPLICANT Statewide Property Ventures Pty Ltd PARTIES : RESPONDENT Valuer-General FILE NUMBER(S) : 30487 of 2007 CORAM: Jagot J KEY ISSUES: Costs :- whether presumption of no order as to costs displaced - appeal discontinued after agreement between experts - each party to pay its own costs LEGISLATION CITED: Valuation of Land Act 1916 CASES CITED: Port Stephens Council v Sansom (2007) 156 LGERA 125 DATES OF HEARING: 27 March 2008 EX TEMPORE JUDGMENT DATE : 27 March 2008 APPLICANT Mr Mark Seymour SOLICITORS Hunt & Hunt LEGAL REPRESENTATIVES: RESPONDENT Ms A Pearman SOLICITORS Crown Solicitor's Office JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Jagot J 27 March 2008 30487 of 2007 STATEWIDE PROPERTY VENTURES PTY LTD Applicant VALUER-GENERAL Respondent JUDGMENT Jagot J: 1 In proceedings 30487 of 2007 the respondent seeks an order for costs. 2 The proceedings were an appeal under s 37(1) of the Valuation of Land Act 1916. The parties agree that the matter should be determined under either Pt 16 r 4 of the Land and Environment Court Rules 1996 or the equivalent provision of the new rule in the Land and Environment Court Rules 2007, namely, r 3.7. They also agree that the difference between the rules is not material. The rules provide that the Court is not to make an order for the payment of costs unless such an order is fair and reasonable in the circumstances. The principles to be applied are clear and are as set out in Port Stephens Council v Sansom (2007) 156 LGERA 125. What is required is consideration of the circumstances of the particular case. 3 In this case the circumstances are that the proceedings were commenced on or about 24 May 2007. Various experts seem to have been engaged by both parties. Most relevantly, the valuers conferred and prepared a short, two page joint report pursuant to which they agreed that the correct land value was $1.6 million in accordance with the Valuer-General's original determination, with the consequence that the applicant discontinued the proceedings. 4 The respondent says there should be a costs order in its favour because there was no merit to the applicant's position. The proceedings were ultimately discontinued because the correct land value was as determined by the Valuer-General and the proceedings were discontinued without the respondent's consent. 5 It seems to me that these circumstances do not displace the presumption that there should be no order as to costs. In short, all that has happened in these proceedings is that the parties have worked through the question of the value of the land. On the applicant being informed by its valuer that the Valuer-General had correctly determined the land value, the proceedings were discontinued. The fact of discontinuance alone in my view is insufficient to displace the ordinary presumption. It would not be fair and reasonable to make a costs order in circumstances where nothing more has happened than that an applicant has realised that its appeal should not be maintained because of the evidence then available to it and then promptly withdraws the appeal by discontinuance. There is no matter displacing the ordinary presumption. 6 Accordingly, in proceedings 30487/2007 the appropriate order is that each party is to pay its own costs (including the costs of the costs hearing on 27 March 2008). **************************** 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.