Perilya Broken Hill Limited v Valuer-General (No 3) [2013] NSWLEC 215

Perilya Broken Hill Limited v Valuer-General (No 3) [2013] NSWLEC 215

Although the Valuer-General's change of position appeared well intentioned and was not vexatious or delinquent, the history of the proceedings showed an element of unreasonableness: the litigation had been on foot since 2011, there had been months of further delay after remittal to accommodate the separate question motion, Perilya had to respond to supporting evidence and submissions, and the motion was abandoned almost at the last moment in favour of a new and unheralded approach. It was therefore fair, on a compensatory rather than punitive basis, to order that the Valuer-General pay Perilya's costs of the notice of motion on an indemnity basis.

Jurisdiction
Australia
Judgment Date
16 December 2013
Procedural Posture
Class 3 Valuation Appeal; Notice of Motion for Separate Determination of a Question of Law / Remitted From the Court of Appeal; Valuer General's Notice of Motion Dismissed by Consent; Perilya's Application for Indemnity Costs Determined
Outcome
Valuer-General's notice of motion dismissed by consent; indemnity costs ordered in favour of Perilya; further evidence and directions timetable set.
Legal Topics
['indemnity Costs' 'abandoned Notice of Motion' 'separate Question' 'land Value Under S 6 a of the Valuation of Land Act 1916' 'publicly Owned and Privately Owned Minerals']
['costs' 'valuation of Land' 'mining and Minerals' 'civil Procedure'] ['indemnity Costs' 'abandoned Notice of Motion' 'separate Question' 'land Value Under S 6 a of the Valuation of Land Act 1916' 'publicly Owned and Privately Owned Minerals']

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Procedural Posture

Class 3 Valuation Appeal; Notice of Motion for Separate Determination of a Question of Law / Remitted From the Court of Appeal; Valuer General's Notice of Motion Dismissed by Consent; Perilya's Application for Indemnity Costs Determined

Legal Issues

  1. 1 ["Whether the Valuer-General should pay Perilya's costs of the abandoned notice of motion on an indemnity basis rather than the ordinary basis." 'Whether, in the context of the valuation appeal, the proposed separate question concerning s 6A(1) of the Valuation of Land Act 1916 and privately or publicly owned minerals should proceed.']

Ratio Decidendi

Although the Valuer-General's change of position appeared well intentioned and was not vexatious or delinquent, the history of the proceedings showed an element of unreasonableness: the litigation had been on foot since 2011, there had been months of further delay after remittal to accommodate the separate question motion, Perilya had to respond to supporting evidence and submissions, and the motion was abandoned almost at the last moment in favour of a new and unheralded approach. It was therefore fair, on a compensatory rather than punitive basis, to order that the Valuer-General pay Perilya's costs of the notice of motion on an indemnity basis.

Court Disposition

Valuer-General's notice of motion dismissed by consent; indemnity costs ordered in favour of Perilya; further evidence and directions timetable set.

Orders

  • ["By consent, the Valuer-General's notice of motion filed on 24 October 2013 is dismissed." "The Valuer-General is to pay Perilya's costs of that notice of motion on an indemnity basis." 'The Valuer-General is to file and serve its evidence on or before 31 January 2014.' 'List the proceedings for directions, if...