Land and Environment Court of New South Wales CITATION : Statewide Property Ventures Pty Ltd v Valuer-General [2008] NSWLEC 140 APPLICANT Statewide Property Ventures Pty Ltd PARTIES : RESPONDENT Valuer-General FILE NUMBER(S) : 31227 of 2006 CORAM: Jagot J KEY ISSUES: Costs :- whether presumption of no order as to costs displaced - appeal maintained after applicant agreed to respondent's value - applicant ordered to pay respondent's costs from date of agreement onwards LEGISLATION CITED: Valuation of Land Act 1916 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 31227 of 2006 STATEWIDE PROPERTY VENTURES PTY LTD Applicant VALUER-GENERAL Respondent JUDGMENT Jagot J: 1 This is an application by the respondent for costs in proceedings 31227 of 2006. 2 The proceedings constituted an appeal under s 37(1) of Valuation of Land Act 1916. Accordingly, it is common ground between the parties that the applicable rules are either Pt 16 r 4 of the Land and Environment Court Rules 1996 or r 3.7 of the Land and Environment Court Rules 2007. It is also common ground between the parties that the difference between these rules is immaterial because both rules provide that the Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances. The primary difference between the two versions of the rules is that the new rule sets out in subr (3) examples of circumstances which the Court might consider make an order for costs fair and reasonable in the particular circumstances, whereas Pt 16 r 4 did not provide those examples. 3 The respondent's submission is that the presumption is displaced in this case because the circumstances are that the original valuation of the property the subject of the appeal was $3.78 million. The respondent engaged a valuer before the proceedings were commenced who valued the land at $2.95 million. The respondent then made an offer without prejudice save as to costs on the basis that the proceedings be resolved with the value of the property to be determined at the reduced amount of $2.95 million. This offer was made on 23 February 2007. On 1 March 2007 the applicant responded to the effect that the applicant would be prepared to accept the figure of $2.95 million provided that the Valuer-General also reviewed the earlier land values for the 2004, 2003 and 2002 years. Apparently, according to the parties, this counter-offer was rejected. 4 After that indication from the applicant, the respondent then engaged a bush fire expert, town planner and valuer to prepare evidence in the proceedings. Through the processes of joint conferencing and the preparation of reports, it turned out that the applicant's valuer agreed with the respondent's valuer that the correct and proper value of the land was $2.95 million. In consequence, the proceedings were settled and resolved by the making of consent orders determining the land value as $2.95 million. 5 The applicant says that there should be no order as to costs in accordance with the presumption in the rule because its rejection of the offer was not unreasonable and the Court processes essentially were successful in enabling the parties to reach an agreement. 6 In this case, however, the difficulty with the applicant's position is that as at 1 March 2007, the applicant was prepared to accept the figure of $2.95 million subject only to an issue relating to other years for the same property. In other words, as at 1 March 2007, the applicant essentially agreed with the Valuer General that the correct and proper land value for the property was $2.95 million. This of course represented a significant reduction from the original land value of $3.78 million. Nothing can escape the fact that on and from 1 March 2007 it appears that the applicant maintained these proceedings appealing against the valuation in circumstances where it in substance accepted what the Valuer-General had said on and from 23 February 2007 was the correct and proper value of this land. 7 I am satisfied that the facts to which I have just referred do make it fair and reasonable that there be an order for costs in these proceedings. The presumption in the rule is displaced because the proceedings were maintained after 1 March 2007 with either actual or presumed knowledge that the Valuer-General would be put to expense in defending the proceedings when there was no merit issue left to resolve with respect to the valuation of this property as at the relevant base date. That is, it was common ground on and from 1 March 2007 that the correct value was $2.95 million and yet it was not until the applicant's own valuer confirmed what the applicant had been prepared to accept that the proceedings were ultimately resolved by consent orders (this not having occurred until nearly a year later in February 2008). This is a clear case in my view where the proceedings were unreasonably maintained on and from 1 March 2007 and, accordingly, it is fair and reasonable in the particular circumstances of this case that there be an order for costs limited to costs as agreed or assessed from 1 March 2007 onwards. 8 In proceedings 31227 of 2006 the order I make is that the applicant is to pay the respondent's costs from 1 March 2007 as agreed or assessed (not including 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.