Supreme Court New South Wales Medium Neutral Citation: Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 3) [2012] NSWSC 90 Hearing dates: 7 February 2012 Decision date: 21 February 2012 Jurisdiction: Equity Division Before: Young JA Decision: I make the following orders in the orange short minutes which I have initialled: 1, 2, 3, 4, 5, 6, 7 and 8 with the following modifications: 1. Substitute the following for order 6(a): There shall be no costs of and incidental to the traffic report in reply of Tim Rogers and no costs of and incidental to the traffic report of Craig McLaren dated 16 June 2011. 2. In order 7, add after "apply", "to any judge or associate judge sitting in the Equity Division". 3. In order 8, omit from (c) the words "of $201,500" and substitute "ordered to be paid pursuant to the order of the judge or associate judge". Annexure A to the orange version should remain. Legislation Cited: Civil Procedure Act 2005, s 21 Conveyancing Act 1919, ss 88K, 89 Cases Cited: Australian Beverage Distributors v Evans & Tate Premium Wines Pty Ltd [2006] NSWSC 560; 200 FLR 332 Autodesk Inc v Dayson (No 2) [1993] HCA 6; 176 CLR 300 Dowdle v Hillier (1949) 66 WN (NSW) 155 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 2) [1998] NSWSC 578; 29 ACSR 290 Haviland v McLeary (1894) 15 LR (NSW) Eq 22 Lockley v National Blood Transfusion Service [1992] 1 WLR 492 Preston v Nikolaidis (Young J, 25 July 1996, unreported) Wentworth v Wentworth (Young J, 12 December 1994, unreported) Category: Consequential orders Parties: Tanlane Pty Ltd (Plaintiff) Moorebank Recyclers Pty Limited (Defendant) Representation: Counsel: T S Hale SC and Z Steggall (Plaintiff) D P Wilson (Defendant) Solicitors: Minter Ellison (Plaintiff) Mark McDonald & Associates Lawyers Pty Ltd (Defendant) File Number(s): SC 2008/277351 Judgment 1YOUNG JA: I previously gave reasons for granting the plaintiff an easement under s 88K of the Conveyancing Act 1919 in my earlier judgments [2008] NSWSC 1341 and [2011] NSWSC 1286. These reasons deal with the orders that should be made following that latter set of reasons. 2Pursuant to directions made, the parties' counsel presented before me on 7 February 2012 three sets of proposed short minutes. Mr T Hale SC and Ms Z Steggall for the plaintiff, presented two sets which I have called the "red set" and the "orange set". I have marked them accordingly, and I will let them remain with the papers. Mr D Wilson for the defendant, presented a set which I will call the "green set". The red and green sets were submitted to me before 7 February: the orange set is an update of the red set, virtually superseding it and was presented in court on 7 February. 3I have used the orange set as my basic document. Orders 1 to 5 in the orange set are non-controversial and in due course I will make them. Of these, it is only necessary to refer to proposed order 3 which refers to an associate judge assessment of certain aspects of the compensation. 4In my 2011 judgment, I fixed aspects of compensation. In [169] of that judgment, I fixed compensation at $201,500, being land value $1,500; injurious affectation $25,000 and other factors $175,000. The first two of those figures were worked out logically. The third was what I thought was a fair estimation giving the limited material I had. In [162] I said that the range was between $100,000 and $250,000 and I would take the mid point at $175,000 but I added "However Moorebank should be given the opportunity of electing, at its own risk as to costs, an inquiry to determine actual figures of probable losses for which it should receive compensation." 5At the 2012 hearing, Mr Wilson said that his side had read the judgment as meaning that all aspects of compensation could go before an associate judge for assessment. That is certainly not what I intended, and I do not think I actually said it, vide [162] which I have quoted. 6Moorebank has elected to have an inquiry before an associate judge, but that is only as to the aspect of the case described as "other factors" and not compensation of land value and injurious affectation which I have already assessed. There is no reason why Moorebank should have a second bite of the cherry on those matters. 7Accordingly, that matter has been remitted to an associate judge and if Moorebank receives under $175,000 I would expect the associate judge would order that it pay the costs of the inquiry, but I will make it quite clear that the costs of the inquiry are in the discretion of the associate judge hearing the matter. 8Three other matters which need to be settled are: (a) how much leeway should be allowed for adjustments to be made should subsequent events frustrate my orders; (b) what liberty to apply should be reserved and whether I should reserve further consideration; and (c) although the plaintiff is to pay the defendant's costs, should: (i) there be some offset for the cost of useless traffic reports; and (ii) should there be set-off between the costs in this case and the order for costs made by Lloyd J in the Land and Environment Court proceedings between the same parties. I will deal with these three issues seriatim. 9(a) Australia, like other common law countries such as Britain, has deliberately adopted a system of dividing authority over matters involving the development of land. Accordingly, in the present case, this Court can make orders under s 88K granting an easement, local councils can make determinations as to development applications, State planning authorities can make orders as to permitted developments and the Land and Environment Court can exercise jurisdiction reviewing the last two matters. All this means is that not one authority can actually be sure that its determination will solve the parties' problems. All this is very democratic. It is also very time consuming and expensive to the parties concerned, and there is never any guarantee that a project approved by the majority of authorities will ever go ahead. However, that is the system that we have adopted. 10It follows that whilst I can grant an easement, I cannot be sure that that order will not be properly frustrated by considerations of other bodies. 11What then is the Court to do? In my 2008 judgment and again in my 2011 judgment, I noted some of these problems but said that it was necessary to make a determination and to make a determination as finally as I could. 12Mr Wilson now seeks either to reopen my findings, or alternatively, to give his client wide powers to reopen them at a later date after the fate of planning applications are made clear. 13Mr Wilson cited to me my decision in Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 2) [1998] NSWSC 578; 29 ACSR 290. 14I there said at 293: I do not consider there is any real doubt that, before a decision is passed and entered, the judge may even withdraw the whole of his or her judgment if it appears that there is a flaw in it. ...Such a review must not be lightly entered into...However, a judge may correct infelicity of expression and ambiguous statements when they are called to his or her attention when the short minutes are brought in. I adhere to those words. It is clear that a trial judge should review their own decision before it is passed and entered if they have omitted to deal with a problem or alternatively, if there is an obvious error in the decision. However, other than that, judges should not permit cases to be reargued after they have handed down their final decision: see Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300. 15Mr Wilson's green version goes further than review under the principles I have set out above. It seeks to completely redo the assessment of compensation and to virtually extinguish the rights given to the plaintiff by the grant of the easement if certain things happen. Accordingly, I decline to make these orders. 16I should add that one of the matters I have to find under s 88K is that Moorebank can be adequately compensated for any loss. Despite the fact that I have remitted some aspects of the compensation claim to an associate judge, I have formed the view that the compensation referred to in my earlier judgment $201,500 including $175,000 for the factors which are now referred to an associate judge, is adequate compensation so that that head of jurisdiction is established. 17It may well be that after the State planning panels, in the form that they might exist in the future, and the local council have dealt with the proposed developments by the various parties, some adjustment will be needed to the order that I have made. In my view, it would be wrong for me not to make as definite an order as I can at this stage so, as much as possible, to put an end to the controversy between the parties. 18Mr Wilson submitted that the way of tackling the problem is to grant an easement subject to such conditions as would run with the land. He suggested that the green short minutes effected this. I must confess I find it difficult to see how the conditions in the easement would run with the land. I suppose one can have a defeasible easement, but that is not really a sensible way of proceeding because there needs to be certainty not only between the parties but with subsequent purchasers as to whether the condition of defeasance has happened or not. Again, I am not at all sure, with respect, that Mr Wilson's draft manages to create such a defeasible easement or an easement subject to conditions that run with the land. 19Mr Wilson says that his conditions have been drawn to ensure that the bridge and the ramps are constructed simultaneously, otherwise if the bridge is constructed as it can be without any ramps, it will need to be demolished if Moorebank cannot get planning permission to put up appropriate ramps and the whole reason for rezoning the development of the Tanlane land is gone because it simply does not have flood free access. 20I have already taken into account most of the problems Mr Wilson has raised and my attitude has been that I should grant the easement now and there should be extinguishment and repayment of compensation if certain things happen. I still think that is the best way of proceeding. The extinguishment can happen either pursuant to some liberty to apply, a matter which I will deal with shortly, or alternatively pursuant to an application made under s 89 of the Conveyancing Act 1919. 21(b) Both sides agree that liberty to apply should be reserved. Liberty to apply is, however, a technical term whose meaning clearly appears from the authorities. It is a grant of limited access to the court. As Roper CJ in Eq said in Dowdle v Hillier (1949) 66 WN (NSW) 155 at 156, the grant of such liberty "does not enable the Court to deal with matters which do not arise in the course of working out the decree". It does not extend to varying the decree and its effect so as to give relief which is not even asked for in the statement of claim. 22Roper CJ in Eq referred to Daniell's Chancery Practice , to a passage which in the 7 th (1901) ed is at p 629 where the learned author says: A judgment with such a liberty reserved is still a final judgment, and may be pleaded in bar to another action for the same matter. The effect of the reservation is to permit persons having an interest under it to apply to the Court touching such interest in a summary way, without the necessity again setting the cause down. See also Haviland v McLeary (1894) 15 LR (NSW) Eq 22. 23I am not at all sure whether reserving liberty to apply will cover the sort of application that has to be made if the planning authorities deal with the parties' lands in a way other than anticipated by them. I do not wish to determine the ambit of this reservation finally; it will be a matter for whomever hears the next aspect of this case if an application is made under the liberty to apply. As I will be retiring from the bench this April I make it clear that the liberty to apply is to any judge of the Equity Division. 24I have considered whether it would be preferable to reserve further consideration. I think if I do that there will not be final orders. If there is to be an appeal, the sooner it is made the better. It may be, and I make no decision on this matter, that the mere fact that I have sent part of the compensation claim to an associate judge may preclude the orders already made and now made from being final orders, but I do not want to make the situation less clear. In any event, reserving further consideration is rather idle when the probabilities will be that it will be some other judge who will have to consider the matter further. If there is any real problem, the matter can come back to court via a new suit to modify the easement that has been granted in this suit, so that there will be some room for the parties to move without there being the possibility of them coming back to court whenever the whim takes them. 25(c)(i) In my view the evidence collected from traffic engineers was of no value in the way the case was run. Mr Wilson vehemently protests and says that the issue of the bridge was a vital matter. I do not consider that the evidence that was available from the traffic engineers assisted in that. Mr Hale asked for the costs of those engineers to be paid by Moorebank. In my view that is going too far and I should simply not allow the costs of the traffic engineers. 26(ii) Tanlane obtained an order for costs from Justice Lloyd in the Land and Environment Court in an associated matter. Under statute in the instant case, Tanlane must pay the costs of this application and it has no argument about that. Tanlane seeks to set off those costs. 27Probably in view of the restricted time allowed for argument, this matter was not fully debated before me. However, the principles are clear. This Court, as part of its inherent jurisdiction, has jurisdiction to set off orders for costs in favour of different parties even if those parties have had litigation in courts other than the Supreme Court as well as in the current action. The jurisdiction is part of the inherent power, not under s 21(5) of the Civil Procedure Act 2005 or as a matter of equity; see Derham, The Law of Set Off , 3 rd ed (Oxford University Press, 2003). Recent exercises of its jurisdiction are Preston v Nikolaidis (Young J, 25 July 1996, unreported); Wentworth v Wentworth (Young J, 12 December 1994, unreported, affirmed by the Court of Appeal, 21 February 1996); Australian Beverage Distributors v Evans & Tate Premium Wines Pty Ltd [2006] NSWSC 560; 200 FLR 332 and, in England, Lockley v National Blood Transfusion Service [1992] 1 WLR 492 (CA). 28In the Lockley case, Scott LJ with whom the other two judges agreed, said at 497: In general, in my opinion, interlocutory costs incurred in the progress of an action to trial and ordered to be paid by a plaintiff to a defendant would in equity impeach the right of the plaintiff to recover from the defendant costs of the action ordered to be paid by the defendant. A set-off of costs against costs, when all are incurred in the prosecution or defence of the same action, seems so natural and equitable as not to need any special justification. 29It seems to me that where one has split jurisdiction between this Court and the Land and Environment Court, and the same parties are warring in respect of the same dispute in both courts, that by parity of reasons there should be a set off as to costs. 30It follows therefore that I make the following orders in the orange short minutes which I have initialled: 1, 2, 3, 4, 5, 6, 7 and 8 with the following modifications: 1. Substitute the following for order 6(a): There shall be no costs of and incidental to the traffic report in reply of Tim Rogers and no costs of and incidental to the traffic report of Craig McLaren dated 16 June 2011. 2. In order 7, add after "apply", "to any judge or associate judge sitting in the Equity Division. 3. In order 8 omit from (c) the words "of $201,500" and substitute "ordered to be paid pursuant to the order of the judge or associate judge" Annexure A to the orange version should remain. ******************************** 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. Decision last updated: 21 February 2012