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Barkat v Roads and Maritime Services

Barkat v Roads and Maritime Services

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Case Copied 11 October 2019 59 min read

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Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Barkat v Roads and Maritime Services [2019] NSWCA 240
Hearing dates: 30, 31 July 2019
Date of orders: 11 October 2019
Decision date: 11 October 2019
Before: Leeming JA at [1];
Emmett AJA at [2];
Simpson AJA at [94]
Decision:
1. The application to adduce additional evidence be refused.
2. The appeal be dismissed.
3. The appellants pay the respondent’s costs of the appeal.

Catchwords:
LAND LAW – Compulsory acquisition of land – Compensation – Objection to amount of compensation

APPEALS – Right of appeal conferred by s 57 of the Land and Environment Court Act 1979 (NSW) limited to questions of law – Whether adjustments made by primary judge when considering comparable sale constitute errors of law – Whether primary judge erred in concluding acquisition of appellants’ land was for a purpose intrinsically connected with the draft Parramatta Road Urban Transformation Strategy (PRUTS) – Whether primary judge erred in disregarding prospect of rezoning the appellants’ land apart from the draft PRUTS
APPEALS – General principles – Admission of fresh evidence
Legislation Cited: Land Acquisition (Just Terms Compensation) Act 1991 (NSW)
Land and Environment Court Act 1979 (NSW)
Roads Act 1993 (NSW)
Supreme Court Act 1970 (NSW)
Cases Cited: AMP Capital Investors Ltd v Transport Infrastructure Development Corporation [2008] NSWCA 325; (2008) 163 LGERA 245
Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707
Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541; (1973) 32 LGRA 170
Commissioner of Succession Duties (South Australia) v Executor Trustee and Agency Company of South Australia Ltd (1947) 74 CLR 358; [1947] HCA 10
Everest Project Developments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 & The Roads and Traffic Authority of New South Wales [2010] NSWLEC 88; (2010) 177 LGERA 43
Housing Commission of NSW v Falconer [1981] 1 NSWLR 547
Housing Commission of NSW v San Sebastian Pty Ltd (1978) 140 CLR 196; [1978] HCA 28
ISPT Pty Ltd v Valuer General (NSW) [2009] NSWCA 31; (2009) 165 LGERA 25
Jameson v Rail Corporation of New South Wales [2014] NSWLEC 83
Kenny and Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413; [1999] HCA 25
Leichhardt Council v Roads & Traffic Authority (NSW) [2006] NSWCA 353; (2006) 149 LGERA 439
Maurici v Chief Commissioner of State Revenue (2003) CLR 111; [2003] HCA 8
MMTR Pty Ltd v Roads and Maritime Services [2015] NSWLEC 177
Roads and Traffic Authority of NSW v Perry (2001) 52 NSWLR 222; [2001] NSWCA 251
Spencer v The Commonwealth (1907) 5 CLR 418; [1907] HCA 82
Sydney Water Corporation v Marrickville Council [2014] NSWCA 438
Turner v Minister of Public Instruction (1956) 95 CLR 245; [1956] HCA 7
Vilro Pty Ltd (in Voluntary Liquidation) v Roads and Traffic Authority NSW (No 3) [2010] NSWLEC 234;

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: [2019] NSWCA 240
Decision Date: 11 October 2019

CaseChat Overview and Summary

The appeal concerned a dispute over the amount of compensation awarded to the appellants, Mr. and Mrs. Barkat, following the compulsory acquisition of their land by Roads and Maritime Services (RMS). The matter came before the Court of Appeal of New South Wales, with judgment delivered by Leeming JA, Emmett AJA, and Simpson AJA.

The primary legal issues before the Court of Appeal were whether the primary judge had erred in law when making adjustments to comparable sales in assessing compensation, whether the acquisition of the appellants' land was intrinsically connected to the draft Parramatta Road Urban Transformation Strategy (PRUTS), and whether the primary judge had erred in disregarding the prospect of the land being rezoned independently of the PRUTS. The court also considered an application to adduce fresh evidence.

The Court of Appeal refused the application to adduce additional evidence. In dismissing the appeal, the court found no errors of law in the primary judge's assessment of compensation. The court held that the adjustments made to comparable sales were matters of fact and degree, not errors of law. Furthermore, the court concluded that the primary judge had correctly determined that the acquisition was for a purpose intrinsically connected with the PRUTS and had not erred in disregarding the prospect of rezoning apart from that strategy.

Consequently, the appeal was dismissed, and the appellants were ordered to pay the respondent's costs.

Orders

Orders of the court

1. The application to adduce additional evidence be refused.

2. The appeal be dismissed.

3. The appellants pay the respondent’s costs of the appeal.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Barkat v Roads and Maritime Services [2019] NSWCA 240
Hearing dates:	30, 31 July 2019
Date of orders:	11 October 2019
Decision date:	11 October 2019
Before:	Leeming JA at [1]; Emmett AJA at [2]; Simpson AJA at [94]
Decision:	1. The application to adduce additional evidence be refused. 2. The appeal be dismissed. 3. The appellants pay the respondent’s costs of the appeal.
Catchwords:	LAND LAW – Compulsory acquisition of land – Compensation – Objection to amount of compensation APPEALS – Right of appeal conferred by s 57 of the Land and Environment Court Act 1979 (NSW) limited to questions of law – Whether adjustments made by primary judge when considering comparable sale constitute errors of law – Whether primary judge erred in concluding acquisition of appellants’ land was for a purpose intrinsically connected with the draft Parramatta Road Urban Transformation Strategy (PRUTS) – Whether primary judge erred in disregarding prospect of rezoning the appellants’ land apart from the draft PRUTS APPEALS – General principles – Admission of fresh evidence
Legislation Cited:	Land Acquisition (Just Terms Compensation) Act 1991 (NSW) Land and Environment Court Act 1979 (NSW) Roads Act 1993 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	AMP Capital Investors Ltd v Transport Infrastructure Development Corporation [2008] NSWCA 325; (2008) 163 LGERA 245 Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707 Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541; (1973) 32 LGRA 170 Commissioner of Succession Duties (South Australia) v Executor Trustee and Agency Company of South Australia Ltd (1947) 74 CLR 358; [1947] HCA 10 Everest Project Developments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 & The Roads and Traffic Authority of New South Wales [2010] NSWLEC 88; (2010) 177 LGERA 43 Housing Commission of NSW v Falconer [1981] 1 NSWLR 547 Housing Commission of NSW v San Sebastian Pty Ltd (1978) 140 CLR 196; [1978] HCA 28 ISPT Pty Ltd v Valuer General (NSW) [2009] NSWCA 31; (2009) 165 LGERA 25 Jameson v Rail Corporation of New South Wales [2014] NSWLEC 83 Kenny and Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413; [1999] HCA 25 Leichhardt Council v Roads & Traffic Authority (NSW) [2006] NSWCA 353; (2006) 149 LGERA 439 Maurici v Chief Commissioner of State Revenue (2003) CLR 111; [2003] HCA 8 MMTR Pty Ltd v Roads and Maritime Services [2015] NSWLEC 177 Roads and Traffic Authority of NSW v Perry (2001) 52 NSWLR 222; [2001] NSWCA 251 Spencer v The Commonwealth (1907) 5 CLR 418; [1907] HCA 82 Sydney Water Corporation v Marrickville Council [2014] NSWCA 438 Turner v Minister of Public Instruction (1956) 95 CLR 245; [1956] HCA 7 Vilro Pty Ltd (in Voluntary Liquidation) v Roads and Traffic Authority NSW (No 3) [2010] NSWLEC 234;