Brompton Lodge Pty Ltd v Roads Corporation

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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:

  1. 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). 

  1. 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.

  1. 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…

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Details
Case
[2019] VSC 490
Decision Date

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.

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