Land and Environment Court New South Wales Medium Neutral Citation: ZGWH Holdings Pty Limited v Sydney Metro (ABN 12 354 063 515) [2018] NSWLEC 154 Hearing dates: 27 September 2018 Date of orders: 27 September 2018 Decision date: 27 September 2018 Jurisdiction: Class 3 Before: Sheahan J Decision: Hearing dates vacated. See orders in par [28] Catchwords: CIVIL PROCEDURE: Application by applicant to vacate hearing dates – claim formulated on a basis now found to be unsound – experts ought have identified that error earlier – inadequate time to now reframe its case in time for hearing – costs orders against applicant. Legislation Cited: Civil Procedure Act 2005 Cases Cited: Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd [2016] NSWLEC 164 UTSG Pty Ltd v Sydney Metro [2018] NSWLEC 128 Monti v Roads and Maritime Services [2018] NSWLEC 34 Category: Procedural and other rulings Parties: ZGWH Holdings Pty Limited (Applicant and applicant on motion) Sydney Metro (Respondent and respondent on motion) Representation: Counsel: Mr J Clifton, barrister (Applicant) Mr C D Norton, barrister (Respondent) Solicitors: Raymond Lee & Co (Applicant) Ashurst Australia (Respondent) File Number(s): 2017/290377 Judgment Introduction 1. These Class 3 compensation proceedings are currently listed for hearing 3 to 12 December 2018. 2. They concern a site in Bathurst St in Sydney CBD, acquired on 27 January 2017, and have been on foot since late September 2017. 3. By Notice of Motion ("NOM") filed 18 September 2018, the Applicant seeks vacation of the December hearing dates, which were set when dates in August 2018 (set in February 2018) were vacated by Moore J, on the motion of the Respondent, on 25 May 2018. 4. Adjournment or vacation applications fall for consideration in the context of ss 56-60 and 66 of the Civil Procedure Act 2005 ("CPA"), and on the basis of principles laid down by learned justices of the High Court and the Court of Appeal, but each case turns on its own facts and circumstances, and the present application is made by the Applicant in quite unusual circumstances. 5. The Court was favoured with extensive affidavit evidence and other documentary materials, as well as comprehensive written and oral submissions by leading counsel engaged in the substantive matter by the respective parties. All aspects of the relevant CPA considerations were dealt with in the competing submissions. 6. The Applicant relied on affidavits from its town planner, Giovanni Cirillo (18 September 2018), and one of its directors, Shao Han Wang (13 February 2018), and a Statement of Evidence ("SOE") by its architect Geoffrey Mark Bonus (filed 2 August 2018). 7. The Respondent relied on two affidavits from its solicitor, Montana Linkio, sworn on 23 May and 25 September 2018, and her bundle of documents (Exhibit MLL1 to her September affidavit). Discussion 1. I dealt with the relevant principles and supporting authorities at some length in my judgment in Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd [2016] NSWLEC 164, and I will rely in the present case on that judgment and the others to which I referred in it. 2. In the interests of timeliness and brevity, I will not restate the CPA provisions, nor quote at length from those authorities. 3. Compliance with both the "just quick and cheap" injunction in s 56, and the "dictates of justice" test in s 58, requires a delicate balancing of many issues, including costs, delay, and pressure on Court time and cases on hand. 4. It is not appropriate that I adjudicate upon any finger-pointing contest regarding historical slippages in the various timetables set for this matter by the Court over time. My task today is to find the best way forward. 5. The Applicant has admitted breaching the Court's timetable in several respects, but says it reached its crisis point in preparation for an early December hearing only on or about 16 August when its planning expert Mr Cirillo suddenly realised the implications for its hypothetical Highest and Best Use, namely for a multi-site aggregated redevelopment, of an apparent error in, or a serious misunderstanding of, the relevant planning documents in respect of the applicable "sun access plane". 6. On the other hand, the Respondent says that the Applicant ought reasonably to have discovered that problem much earlier. 7. It was clearly identified and articulated in minutes of a pre-DA meeting held on 29 September 2015, a meeting in which the Applicant and its advisors were not involved, but the minutes of which have found their way into several elements of the expert evidence filed in these proceedings, and any breach of the plane is prohibited. 8. It would appear reasonable for me to conclude that the Applicant should have realised the problem with the hypothetical project, upon which it has relied, as early as 26 February 2018 (McDonald SOE), or 29 March 2018 (Council subpoena documents), or 1 June 2018 (Bonus SOE and Walton survey), or 19 June 2018 (Olsson SOE) (see Respondent's subs 15 to 18), but, as it did not, the Court now has to manage the proceedings on the basis that it did not. 9. The latest iteration of the hypothetical project advanced as Highest and Best Use has effectively collapsed, and the Applicant's counsel conceded before me that it is no longer before the Court. Conclusions 1. While the Respondent put to the Court that the Applicant's case should be able to be reframed in time for the hearing to take place as scheduled, I am, regrettably, not satisfied that that can be achieved, largely for the reasons explained by Mr Clifton (subs 12(iv), to 15, and 19-20). 2. Nor am I satisfied that the hearing would conclude within the allocated time given the likely emergence of additional issues from joint conferencing (Clifton subs 24-26). 3. On balance, the present hearing dates must be vacated. 4. I, therefore, must consider the question of costs, which must always be ordered on the basis of compensation, not punishment. 5. Firstly, this second vacation of hearing dates in this case was in no way consensual, but was sought by the Applicant, over the objections of the Respondent. 6. Although the sun access plane error was beyond the control of either party (CPA s 58(2)(b)(iii)), the failure of the Applicant and its advisors to identify and deal with it in a timely manner is what makes the vacation of dates unavoidable. 7. Accordingly, despite the Applicant having acted promptly when advised of the consequential errors it had made, it must pay the Respondent's costs of the NOM hearing, and the Respondent's costs thrown away as a result of vacating the dates: see UTSG Pty Ltd v Sydney Metro [2018] NSWLEC 128; and Monti v Roads and Maritime Services ("Monti") [2018] NSWLEC 34. 8. During the hearing, the Applicant confirmed that it was withdrawing from consideration in the case the Bonus scenarios 1 and 1A, and that it now has to "rework from the beginning" its case on Highest and Best Use (Applicant subs 8). 9. The Applicant must bear the costs occasioned to the Respondent by the faulty work done by its experts, and the Respondent is clearly also entitled to its costs of assessing the scenarios now abandoned, and of negotiating amendments of the Court's timetables to facilitate their assessment. 10. Mr Norton expressly refrained from asking for these costs orders to be complied with immediately. See Monti, at [39]. 11. As there is to be effectively a "new beginning", I will return to the Applicant the SsOE of Cirillo (11 July 2018) and Bonus (2 August 2018), and to the Respondent the bundle of documents Exhibit MLL1 to Linkio's affidavit (25 September 2018). Orders 1. The Orders of the Court are: 1. The hearing dates 3-12 December 2018, and any pre-trial mention date, are vacated. 2. The Applicant is ordered to pay the Respondent's costs on the Notice of Motion filed 18 September 2018, and the Respondent's "costs thrown away", occasioned by (a) the abandonment of Scenarios 1 and 1A of the Applicant's case, (b) the amendments of directions since end May 2018, and (c) the vacation of the hearing. 3. The Statements of Evidence of Giovanni Cirillo (of 11 July 2018) and Geoffrey Bonus (of 2 August 2018) are returned to the Applicant. 4. Exhibit MLL1 to the affidavit of Montana Linkio (of 25 September 2018) is returned to the Respondent. 5. The proceedings are stood over to the Land Valuation and Compensation List on Friday, 12 October 2018. 1. I will publish these reasons tomorrow. ********** 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: 28 September 2018