Brompton Lodge Pty Ltd v Roads Corporation - [2019] VSC 490

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

S ECI 2018 00283

BROMPTON LODGE PTY LTD, PETER WILLIAM CARPENTER and SANDRA GAEL CARPENTER	Applicants
v
ROADS CORPORATION	First Respondent
and
1050 WESTERN PORT HIGHWAY PTY LTD	Second Respondent

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 July 2019
DATE OF RULING:	22 July 2019
CASE MAY BE CITED AS:	Brompton Lodge Pty Ltd v Roads Corporation
MEDIUM NEUTRAL CITATION:	[2019] VSC 490

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PRACTICE AND PROCEDURE – Application for determination of a separate question under r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 – Proceeding claiming compensation for loss on sale under Pt 5, Planning and Environment Act 1987 – Contract for sale of land assigned applicants’ right, title and interest in any compensation received to purchaser – First respondent seeks to have validity of assignment determined as a separate question before trial – Answering question would not bring proceeding to an end or narrow issues at trial – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr S Morris QC with Ms C van Proctor	Schutz Consulting
For the First Respondent	Mr S Goubran	Hall & Wilcox
For the Second Respondent	Ms E Porter	Maddocks

HER HONOUR:

In this proceeding the applicants claim compensation from the Roads Corporation (VicRoads) for ‘financial loss suffered as the natural, direct and reasonable consequence’ of land owned by them being reserved for a public purpose, under s 98(1)(a) of the Planning and Environment Act 1987 (Vic) (PE Act). Their claim relates to six parcels of land in Cranbourne South, and arises from the application of a Public Acquisition Overlay to part of that land in January 2016 (2016 PAO).

The applicants have since sold the land, and claim to have received a price that was lower than the price they could reasonably have expected to get if the land had not been reserved. The sale of the land triggered the applicants’ entitlement to claim compensation, under ss 99(b) and 106 of the PE Act. The applicants have particularised their claim to be in the order of $25 million. VicRoads’ position, as set out in its amended particulars of offer, is that the applicants suffered no financial loss as a result of the application of the 2016 PAO, and are not entitled to any compensation.

The applicants sold the land in January 2018 to the second respondent, 1050 Western Port Highway Pty Ltd (the Purchaser). The purchase price was $55 million, which was approximately half the amount that the applicants’ valuer considers it was worth after the application of the 2016 PAO. The contract of sale was entered into against a background of dealings between the applicants and persons associated with the Purchaser over more than a decade, and was not regarded by their valuer as an arm’s length transaction. I understand that the applicants will contend at trial that…

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] VSC 490
Decision Date: 22 July 2019

CaseChat Overview and Summary

Brompton Lodge Pty Ltd brought an action against the Roads Corporation seeking compensation for loss on sale under Part 5 of the Planning and Environment Act 1987. The applicants had assigned their right, title and interest in any compensation received to the purchaser. The Roads Corporation sought to have the validity of the assignment determined as a separate question before the trial of the proceeding. The applicants opposed the application on the basis that answering the question would not bring the proceeding to an end or narrow the issues at trial.

The court had to determine whether the validity of the assignment should be determined as a separate question under rule 47.04 of the Supreme Court (General Civil Procedure) Rules 2015. The court noted that the application was not for the determination of a preliminary question that would determine the proceeding or narrow the issues to be determined at trial. The court held that answering the question would not bring the proceeding to an end or narrow the issues at trial. Therefore, the application was dismissed.

The court noted that the assignment did not affect the applicant’s capacity to bring the proceeding or the merits of the claim. The court held that the application was not an appropriate way to determine the validity of the assignment. The court held that the validity of the assignment could be determined at trial if it became an issue.

No orders were made as to costs.

Orders