Croghan v Blacktown City Council [2019] NSWCA 248

Croghan v Blacktown City Council [2019] NSWCA 248

The primary judge erred by not determining whether the applicant had acted reasonably in not accepting the offer of compromise at the relevant time, considering the limited information available and the lack of exchanged expert reports or pleadings. Given the nature of compulsory acquisition proceedings and the state of the evidence, the applicant and his advisers could not adequately assess the offer, making it reasonable not to accept it. Therefore, the costs consequences under r 42.15 should be displaced, and the respondent should pay the applicant’s costs.

Parties
Applicant: Alan Croghan; Respondent: Blacktown City Council
Jurisdiction
Australia
Judgment Date
15 October 2019
Procedural Posture
Costs Appeal in Compulsory Acquisition Compensation Proceedings / Application for Leave to Appeal and Appeal From Costs Orders
Outcome
Leave to appeal granted. Appeal allowed.
Legal Topics
Compulsory Acquisition Compensation, Costs Consequences of Offers of Compromise, Discretion to Order Otherwise Under UCPR R 42.15, Reasonableness of Non Acceptance of Offer, Land and Environment Court Proceedings, Class 3
Costs Environment and Planning Land Acquisition Compulsory Acquisition Compensation Costs Consequences of Offers of Compromise Discretion to Order Otherwise Under UCPR R 42.15 Reasonableness of Non Acceptance of Offer Land and Environment Court Proceedings, Class 3

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Parties

Alan Croghan

Applicant

Blacktown City Council

Respondent

Procedural Posture

Costs Appeal in Compulsory Acquisition Compensation Proceedings / Application for Leave to Appeal and Appeal From Costs Orders

Legal Issues

  1. 1 Whether the primary judge erred in not considering if the applicant acted reasonably in not accepting the offer of compromise when exercising the discretion to 'order otherwise' under UCPR r 42.15 in Class 3 compensation proceedings
  2. 2 How the principles applicable to costs orders in compulsory acquisition proceedings affect the exercise of the discretion under r 42.15

Ratio Decidendi

The primary judge erred by not determining whether the applicant had acted reasonably in not accepting the offer of compromise at the relevant time, considering the limited information available and the lack of exchanged expert reports or pleadings. Given the nature of compulsory acquisition proceedings and the state of the evidence, the applicant and his advisers could not adequately assess the offer, making it reasonable not to accept it. Therefore, the costs consequences under r 42.15 should be displaced, and the respondent should pay the applicant’s costs.

Court Disposition

Leave to appeal granted. Appeal allowed.

Orders

  • Grant leave to the applicant, Alan Croghan, to appeal from orders (2), (3) and (4) made by Molesworth AJ on 7 February 2019 on ground 1 in the draft notice of appeal.
  • Direct that within 7 days the applicant file a notice of appeal limited to ground 1 of the draft notice of appeal.