Candibon Pty Ltd v Minister for Planning - [2011] VSC 415

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

No. 4637 of 2006

CANDIBON PTY LTD (ACN 006 867 358)	Plaintiff
v
THE HONOURABLE JUSTIN MADDEN (IN HIS CAPACITY AS MINISTER FOR PLANNING)	First Defendant
STATE OF VICTORIA	Second Defendant

---

JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	4-7, 11-14, 18, 20-21, 25-26 October, 4, 22-24, 29-30 November, 2-3, 6, 8-10, 14-16 December 2010
DATE OF JUDGMENT:	29 August 2011
CASE MAY BE CITED AS:	Candibon Pty Ltd v Minister for Planning
MEDIUM NEUTRAL CITATION:	[2011] VSC 415

---

REAL PROPERTY – Acquisition of land by private treaty – Alleged threat of compulsory acquisition by Minister – Application of Land Acquisition and Compensation Act 1986 (Vic) to a sale by private treaty –- Whether the Minister was ‘empowered’ to compulsorily acquire the land – Whether acquisition was for the purposes of the planning scheme – Compliance with statutory obligations for compulsory acquisition - Right of pre-emption if land sold within 18 months – Consequences of any breach of statutory obligation – Availability of restitutionary remedies – Availability of damages - Land Acquisition and Compensation Act 1986 (Vic) ss 4, 6, 13, 18, 109(2) - Planning & Environment Act 1987 (Vic), ss 98-99, 171-173.

TORTS - Deceit – Statements allegedly made to induce the sale of land to the Minister – Whether there was an ‘implicit representation’ about the government’s continuing position known to be false by the Minister – Pleadings to be strictly construed.

TORTS – Negligence – Whether the Minister had a duty to take care to ensure the accuracy of statements in regarding determinations concerning the future development of land – Meaning of determination - Intention of the government as opposed to intentions of the Minister - Reliance on statements made by the Minister – Loss suffered as a result of selling the land to the Minister - When cause of action accrued – Extension of limitation period for fraud or mistake – Whether the plaintiff’s mistake as to the Minister’s intentions was the ‘gist of the action’ or an ‘essential ingredient’ of its cause of action in negligence –– Negligence claim statute barred – Limitation of Actions Act 1958 (Vic), s 5, 27(c).

UNCONSCIONABLE CONDUCT – Whether there was ‘special disadvantage’ arising from alleged statements made by the Minister as to future land use policy - Limitations of actions for equitable relief by analogy – Application of the statutory time limit to the claim for relief from the consequences of unconscionable conduct – Limitation of Actions Act 1958 (Vic), s 5 – Supreme Court Act 1928 (Vic) s 82(1)(c).

DAMAGES – Whether plaintiff would have been entitled to damages on basis of ‘true value’ of the land as opposed to market value.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Richter QC and Mr L Glick SC with Mr J Manetta and Mr P Connor	Belleli King & Associates
For the Defendants	Mr W F Lally…

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.

Keep reading for free

Create a free CaseChat account to read Candibon Pty Ltd v Minister for Planning and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] VSC 415
Decision Date: 29 August 2011

CaseChat Overview and Summary

Candibon Pty Ltd brought an action against the Minister for Planning in the Supreme Court of Victoria. The plaintiff sought relief over the sale of a parcel of land to the Minister. The plaintiff alleged that the Minister had made representations about the future use of the land that induced the sale, but which were known to be false. The plaintiff further argued that the Minister was empowered to compulsorily acquire the land, and that the acquisition was for the purposes of the planning scheme. The plaintiff claimed damages for deceit, negligence, and unconscionable conduct, as well as restitutionary relief.

The court considered whether the Minister was empowered to compulsorily acquire the land, whether the acquisition was for the purposes of the planning scheme, and whether there was an implicit representation about the government’s continuing position known to be false by the Minister. The court also examined the meaning of determination, the intention of the government as opposed to the intentions of the Minister, and the reliance on statements made by the Minister. The court considered the availability of restitutionary remedies, damages, and the consequences of any breach of statutory obligation.

The court found that the Minister was not empowered to compulsorily acquire the land, and that the acquisition was not for the purposes of the planning scheme. The court held that there was no implicit representation about the government’s continuing position known to be false by the Minister. The court found that the plaintiff’s deceit claim failed because the plaintiff could not establish an ‘implicit representation’ about the government’s continuing position. The court held that the Minister owed no duty to the plaintiff to take care to ensure the accuracy of statements regarding determinations concerning the future development of land. The court found that the plaintiff’s negligence claim was statute-barred, as the cause of action accrued when the plaintiff sold the land to the Minister, and the limitation period had expired. The court held that the plaintiff’s claim for relief from the consequences of unconscionable conduct was also statute-barred.

The court dismissed the plaintiff’s action in its entirety and ordered the plaintiff to pay the defendant’s costs.

Orders