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Apokis v Transport for NSW

Apokis v Transport for NSW

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Case Copied 13 March 2020 45 min read

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Court of Appeal

Supreme Court

New South Wales

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Medium Neutral Citation: Apokis v Transport for NSW [2020] NSWCA 39
Hearing dates: 27 February 2020
Date of orders: 13 March 2020
Decision date: 13 March 2020
Before: Basten JA at [1];
Leeming JA at [63];
Brereton JA at [64]
Decision:
(1)   In matter number 2017/388163, dismiss the summons seeking leave to appeal.
(2)   In the appeal, matter number 2019/333192:
(a)   extend the time within which to file the notice of appeal up to and including 24 October 2019;
(b)   grant the appellant leave to file in this proceeding the amended notice of appeal contained in the orange appeal book at pp 73-78;
(c)   dismiss the appeal.
(3)   Order that Sam Apokis pay the costs of the respondent of the two proceedings in this Court.

Catchwords:
APPEAL – civil – notice of appeal – extension of time to apply for leave to appeal – where notice of appeal filed almost two years after the material date – where government respondent consented to late filing – relevance of model litigant policy

VALUATION – compulsory acquisition of land – assessment of compensation – market value – role of “judicial valuer” – valuation of non-marketable parcel – assessment of value before and after acquisition – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 56(1)
VALUATION – compulsory acquisition of land – assessment of compensation – disturbance – where acquired land included resource – assessment of value where resource only had value because of the carrying out of the public purpose for which the land was acquired – whether claimed disturbance related to “actual use” of acquired land – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 55(d) and 59(f)
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56; Pt 6
Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55, 56, 59; Pt 3, Div 4
Land Acquisition (Just Terms Compensation) Amendment Act 2016 (NSW), Sch 1 [14]
Land and Environment Court Act 1979 (NSW), ss 57, 61
Transport Administration Act 1988 (NSW), s 3C; Sch 7, Pt 29, cl 218
Cases Cited: Almona Pty Ltd v Roads and Traffic Authority (NSW) [2008] NSWLEC 112; (2008) 160 LGERA 375
Deputy Federal Commissioner of Taxation v Gold Estates of Australia (1903) Ltd (1934) 51 CLR 509; [1934] HCA 41
Environment Protection Authority v Wyanga Holdings Pty Ltd; Environment Protection Authority v Cauchi [2015] NSWLEC 78
Goode v Valuer-General (1979) 22 SASR 247
Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547
ISPT Pty Ltd v Valuer General [2009] NSWCA 31; 165 LGERA 25
Liao v New South Wales [2014] NSWCA 71
Melino v Roads and Maritime Services (2018) 98 NSWLR 625; [2018] NSWCA 251
Mir Bros Unit Constructions Pty Ltd v Roads & Traffic Authority of New South Wales [2006] NSWCA 314
Moloney v Roads and Maritime Services (2018) 98 NSWLR 651; [2018] NSWCA 252
Pointe Gourde Quarrying and Transport Co Ltd v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWCA 39
Decision Date: 13 March 2020

CaseChat Overview and Summary

In the matter of *Apokis v Transport for NSW*, the Court of Appeal of New South Wales considered an appeal concerning the compulsory acquisition of land and the assessment of compensation. The appellant, Sam Apokis, sought leave to appeal a decision regarding the valuation of his land, which had been acquired by Transport for NSW. The appeal was significantly delayed, with the notice of appeal filed almost two years after the material date, although the respondent consented to the late filing, noting the relevance of the model litigant policy.

The primary legal issues before the court were the assessment of compensation for the compulsory acquisition of land under the *Land Acquisition (Just Terms Compensation) Act 1991* (NSW). Specifically, the court had to determine the market value of the acquired land, considering its nature as a non-marketable parcel and the role of a "judicial valuer." Furthermore, the court was required to assess compensation for disturbance, particularly where the acquired land included a resource whose value was contingent on the public purpose for which the land was acquired, and whether the claimed disturbance related to the "actual use" of the acquired land.

The Court of Appeal reasoned that while the respondent consented to the late filing of the appeal, this did not automatically warrant an extension of time. The court ultimately dismissed the appeal. The reasoning involved a detailed consideration of the valuation principles applicable to compulsory acquisitions, including the assessment of market value and disturbance. The court applied the principles of the *Land Acquisition (Just Terms Compensation) Act 1991* (NSW) to the specific facts of the case, concluding that the appeal lacked merit.

Consequently, the Court of Appeal dismissed the summons seeking leave to appeal in one matter. In the main appeal, the court extended the time for filing the notice of appeal and granted leave to file an amended notice of appeal, but ultimately dismissed the appeal itself. The appellant, Sam Apokis, was ordered to pay the costs of the respondent in both proceedings.

Orders

Orders of the court

(1) In matter number 2017/388163, dismiss the summons seeking leave to appeal.

(2) In the appeal, matter number 2019/333192:

(a) extend the time within which to file the notice of appeal up to and including 24 October 2019;

(b) grant the appellant leave to file in this proceeding the amended notice of appeal contained in the orange appeal book at pp 73-78;

(3) Order that Sam Apokis pay the costs of the respondent of the two proceedings in this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Apokis v Transport for NSW [2020] NSWCA 39
Hearing dates:	27 February 2020
Date of orders:	13 March 2020
Decision date:	13 March 2020
Before:	Basten JA at [1]; Leeming JA at [63]; Brereton JA at [64]
Decision:	(1) In matter number 2017/388163, dismiss the summons seeking leave to appeal. (2) In the appeal, matter number 2019/333192: (a) extend the time within which to file the notice of appeal up to and including 24 October 2019; (b) grant the appellant leave to file in this proceeding the amended notice of appeal contained in the orange appeal book at pp 73-78; (c) dismiss the appeal. (3) Order that Sam Apokis pay the costs of the respondent of the two proceedings in this Court.
Catchwords:	APPEAL – civil – notice of appeal – extension of time to apply for leave to appeal – where notice of appeal filed almost two years after the material date – where government respondent consented to late filing – relevance of model litigant policy VALUATION – compulsory acquisition of land – assessment of compensation – market value – role of “judicial valuer” – valuation of non-marketable parcel – assessment of value before and after acquisition – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 56(1) VALUATION – compulsory acquisition of land – assessment of compensation – disturbance – where acquired land included resource – assessment of value where resource only had value because of the carrying out of the public purpose for which the land was acquired – whether claimed disturbance related to “actual use” of acquired land – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 55(d) and 59(f)
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56; Pt 6 Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55, 56, 59; Pt 3, Div 4 Land Acquisition (Just Terms Compensation) Amendment Act 2016 (NSW), Sch 1 [14] Land and Environment Court Act 1979 (NSW), ss 57, 61 Transport Administration Act 1988 (NSW), s 3C; Sch 7, Pt 29, cl 218
Cases Cited:	Almona Pty Ltd v Roads and Traffic Authority (NSW) [2008] NSWLEC 112; (2008) 160 LGERA 375 Deputy Federal Commissioner of Taxation v Gold Estates of Australia (1903) Ltd (1934) 51 CLR 509; [1934] HCA 41 Environment Protection Authority v Wyanga Holdings Pty Ltd; Environment Protection Authority v Cauchi [2015] NSWLEC 78 Goode v Valuer-General (1979) 22 SASR 247 Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547 ISPT Pty Ltd v Valuer General [2009] NSWCA 31; 165 LGERA 25 Liao v New South Wales [2014] NSWCA 71 Melino v Roads and Maritime Services (2018) 98 NSWLR 625; [2018] NSWCA 251 Mir Bros Unit Constructions Pty Ltd v Roads & Traffic Authority of New South Wales [2006] NSWCA 314 Moloney v Roads and Maritime Services (2018) 98 NSWLR 651; [2018] NSWCA 252 Pointe Gourde Quarrying and Transport Co Ltd v…