Brock v Roads and Maritime Services (formerly Roads and Traffic Authority of NSW) No 2

[2013] NSWCA 12

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Brock v Roads and Maritime Services (formerly Roads and Traffic Authority of NSW) No 2 [2013] NSWCA 12

Hearing dates:

On the papers

Decision date:

15 February 2013

Before:

Beazley JA; Meagher JA; Tobias AJA

Decision:

The Orders made by the Court 11 December 2012 should be amended as follows:

(a) Insert after Order 2 the following further order:

"2(A) The appellant's claim for disturbance under s 55(d) of the Land Acquisition (Just Terms Compensation) Act 1991 is allowed at $41,880.

(b) Add to Order 3 the following sub-paragraph:

(iv) The appellant to repay to the respondent by 31 December 2014 the sum of $177,487.44 together with interest calculated from the date of payment.

(c) Vacate Orders 4 and 6.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - variation of orders - variation pursuant to compromise of claim -

COMPULSORY ACQUISITION OF LAND - compensation - claim for losses attributable to disturbance

Legislation Cited:

Land Acquisition (Just Terms Compensation) Act 1991

Category:

Procedural and other rulings

Parties:

Lynette Verlie Brock (Appellant)
Roads and Maritime Services (formerly Roads and Traffic Authority of NSW) (Respondent)

Representation:

Counsel:
R D Marshall (Appellant)
P Tomasetti SC with H Irish (Respondent)
Solicitors:
Bilbie Dan Solicitors (Appellant)Henry Davis York Solicitors (Respondent)

File Number(s):

CA206210 of 2011

 Decision under appeal 

Date of Decision:

2010-11-29 00:00:00

Before:

Sheahan J

File Number(s):

LEC30132 of 2009

Judgment

1. THE COURT: On 11 December 2012 the Court allowed the appeal in this matter and set aside Order 2 made by Sheahan J on 29 November 2010 in which his Honour had assessed the appellant's claim for disturbance under s 55(d) of the Land Acquisition (Just Terms Compensation) Act 1991 in the sum of $31,380.

1. The setting aside of Order 2 was on the basis that his Honour should not have rejected the appellant's claim for loss attributable to disturbance with respect to a stock watering system installed by the respondent to serve the appellant's land. Rather than remit the matter to the Land and Environment Court for the determination of that issue, the parties were directed within 14 days to attempt to compromise that claim. That attempt was successful and the parties have agreed that the appellant's claim for disturbance due to the stock watering system be assessed in the amount of $10,500.

1. It follows from the foregoing that the amount the appellant is required to repay to the respondent is reduced from $187,987.44 to $177,487.44.

1. As Orders 4 and 6 made by the Court on 11 December 2012 are now redundant, those orders should now be vacated.

1. Accordingly, the Orders made by the Court on 11 December 2012 should be amended as follows:

(a) Insert after Order 2 the following further order:

"2(A) The appellant's claim for disturbance under s 55(d) of the Land Acquisition (Just Terms Compensation) Act 1991 is allowed at $41,880.

(b) Add to Order 3 the following sub-paragraph:

(iv) The appellant to repay to the respondent by 31 December 2014 the sum of $177,487.44 together with interest calculated from the date of payment.

(c) Vacate Orders 4 and 6.

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