Cantray Pty Ltd & Tulloch Trading Co Pty Ltd v Council of the City of Gold Coast
[1997] QLC 95
•25 June 1997
|
BRISBANE
25 JUNE 1997
Re: Determination of Compensation -
Resumption for Road Purposes
A96-46 and A96-46A
Cantray Pty Ltd (A96-46)
and
Tulloch Trading Co Pty Ltd (A96-46A)
v.
Council of the City of Gold Coast
J U D G M E N T
These claims for compensation arise consequent upon the resumption by the respondent Council of the City of Gold Coast on 7 April 1995 for road purposes of part of a freehold property situated at 254 Brisbane Road, Labrador. The resumed land is more particularly described as Lot 99 on RP 880419, County of Ward, Parish of Barrow, containing an area of 396 m² and comprises the whole of the frontage of the land to Brisbane Road with a width of about 18.3 metres and a depth of about 21.6 metres. The balance area of the property (the retention area) is described as Lot 1 on RP 880419, Parish of Barrow, and contains an area of 7626 m². Insofar as it is relevant to these proceedings, the history leading up to the lodgment of the claims with the Court is:
The owner of the resumed land at the date of resumption was a registered company known as Dalapat Pty Ltd. By contract dated 26 April 1995 Dalapat Pty Ltd sold the retention area (seemingly misdescribed in the contract as Lot 1 on RP 92888) to a company known as Cantray Pty Ltd. A special condition (2.2) within the contract reads:
“Notwithstanding any other provision of this contract the parties agree that any amount of compensation payable in relation to the area resumed is payable to the purchaser and the vendor has no claim whatsoever to any compensation amount paid.”
On 29 August 1996 the claimant company, Cantray Pty Ltd, filed a claim for compensation in the Land Court Registry in the sum of $236,800 made up as follows:
Loss of about 396 m² land $39,600
Loss of landscaping and paving $13,000
Loss of main office building $47,200
Loss of fencing, signage, electronic gates $10,000
Loss of rear landscaping, barbecue, shed $7,000
Loss of business during road construction $20,000
Loss of business because of impaired access $100,000
Total direct losses $236,800
At the outset of the hearing of the matter, leave was sought, and was granted, to Cantray Pty Ltd to amend the claim for compensation to $185,000, with compensation for disturbance (legal fees involved in the preparation of the claim) in the sum of $2,000.
As at the date of resumption, Dalapat Pty Ltd owned and operated a self storage warehouse business on the resumed land and on the retention area. The business was known as Wallis Self Storage. By contract also dated 21 April 1995, Dalapat Pty Ltd sold the Wallis Self Storage business to G & J Davidson Pty Ltd, a company which later changed its name, but not its ownership, to Tulloch Trading Company Pty Ltd. The shareholders in Cantray Pty Ltd and in Tulloch Trading Company Pty Ltd are identical (G and J Davidson). It is to be noted that provision is made in each of the sale contracts (Dalapat Pty Ltd to Cantray Pty Ltd and Dalapat Pty Ltd to G & J Davidson Pty Ltd) that they are subject to and conditional upon the contemporaneous completion each to each. Again, leave was sought to file a claim for compensation dated 21 April 1997 (the date of the Land Court hearing), in the sum of $43,335 by Tulloch Trading Co Pty Ltd for business losses suffered consequent upon the carrying out of the roadworks on the resumed land. It is also to be noted that there is no special condition in the Dalapat to Davidson sale contract assigning compensation assessment rights to Davidson. Counsel for the respondent Council of the City of Gold Coast resisted the admission of the claim on the basis that it was not a claim that is sustainable in law as the only party entitled to claim compensation for business losses was the owner at the time of resumption.
After hearing submissions from the parties, the Court accepted the claim subject to its proof, and which is made up as follows:
Loss of business during road construction $20,000
Loss of business in long term $23,335
Total Claim $43,335
Re: Cantray Pty Ltd Claim
I propose to consider the claim for loss of land and improvements, as amended, by Cantray Pty Ltd (A96-46)in the first instance. It is based on an assessment of compensation made by practising registered valuer Henry James Jewell who was called in evidence. Mr Jewell’s assessment of compensation is made on two bases - on a “piecemeal” basis in the sum of $197,435, and on a “before and after” basis in the sum of $178,435. He assesses compensation at approximately the midpoint between his valuations in the sum of $185,000.
But each of his compensation assessments include a component sum for loss of business. A sum of $43,335 is included in his “piecemeal” compensation assessment for this loss during road construction and for loss of business in the long term, and a sum of $20,000 is included for loss of business during roadworks in his “before and after” compensation assessment. As compensation for these business losses are now claimed by Tulloch Trading Company Pty Ltd, they should be excised from Mr Jewell’s valuation assessments for the Cantray Pty Ltd claim. This results in a “piecemeal” adjusted assessment of compensation of $154,100, and in a “before and after” adjusted assessment of compensation in the sum of $158,435. The approximate midpoint between these compensation assessments is $156,000.
To here illustrate the extent of the compensation dispute relative to the Cantray Pty Ltd claim, I now indicated that the respondent Council of the City of Gold Coast, through practising registered valuer Lloyd Sydney Parsons, assesses compensation for the loss of land and improvements in the sum of $87,000.
Mr Jewell tells us through his tendered valuation document that prior to resumption, the subject parent parcel was L-shaped with the 18.3 metre frontage to Brisbane Road widening out to about 40 metres at or about 142 metres in depth and continuing at that width to the rear boundary which is about 275 metres from the Brisbane Road frontage. The parent parcel is of medium elevation and almost level with a slight fall southerly and easterly. It is zoned “General Industry” under the provisions of the Gold Coast City Council Town Planning Scheme.
Erected on the parent parcel about 18 metres from the Brisbane Road boundary was a single-storey dwelling-house about 40 years’ old with an enclosed floor area of 108 m² and an open verandah of 20 m². This building had been renovated and converted for office use. Further back, the parent parcel is improved with storage warehouses, and these improvements are not affected by the resumption, the southern boundary of which traversed beneath the office/dwelling-house.
Mr Jewell says that the front of the parent parcel between Brisbane Road and the office building was attractively landscaped, including long-established trees and shrubs and had asphalt surfaced driveways and hardstanding areas with concrete edges. Substantial advertising signs were positioned on the land resumed, and multiple letterboxes which were not in use at the time of resumption. The side boundaries of the land were fenced and electronically controlled gates beside the office/dwelling provided for access to the rear storage areas. Barbecue facilities and a landscaped area and a 29 m² metal clad storage shed stood behind the office/dwelling area, with a large complex of about 250 storage sheds leased for self-storage purposes at the rear of the parent parcel. These storage sheds are on the retention area of the land.
Mr Jewell outlined in evidence the effects, as he saw them, of the resumption. It became necessary to remove the afore described improvements on the resumed land including the main office building, signage, and the electronically controlled security gates. The attractive landscaping and hard-stand areas were also on the resumed land. As a result of the resumption, Mr Jewell says that the landscaping at the rear of the office and the metal clad storage shed behind it were removed by Cantray Pty Ltd to facilitate the construction of a replacement office. The relocation of the security gates was necessary.
As a commencing point for his valuation on a “before and after” assessment of compensation, Mr Jewell refers to the purchase by Cantray Pty Ltd on 21 April 1995 from Dalapat Pty Ltd of the retention area, along with the right to claim compensation, for $945,000, and to the purchase by G & J Davidson Pty Ltd of the business goodwill from Dalapat Pty Ltd on the same date for $155,000. Accordingly, Mr Jewell sees it as appropriate to adopt a value of $1,100,000 as the “before resumption” value of the property and the business goodwill on the basis that Cantray Pty Ltd envisaged obtaining fair compensation consequent upon the resumption.
Mr Jewell informed the Court that prior to resumption, the parent parcel had two main land components. Land in front of, and behind the office/dwelling could be developed with income-producing structures, and back to the rear storage unit had a land area of 1,332 m². This potential development land area has been reduced in area to 936 m² post-resumption.
Mr Jewell points out that post-resumption, the retention area of the property now has a frontage to a service road rather than to the highway (Brisbane Road) as was the case pre-resumption. He would value the front section land of 1,332 m² prior to resumption at $125 per m², and the retention area front section of 936 m² post-resumption at $100 per m².
In the result then, Mr Jewell’s assessment of compensation for the Cantray Pty Ltd claim (adjusted by the removal of the claim for business losses) on a “piecemeal” basis is:
Loss of 396 m² of land @ $125 per m² $49,500
Front section value reduction -
936 m² @ $25 per m² $23,400
Loss of front landscaping, fencing and paving $13,000
Loss of office/dwelling building $47,200
Cost of demolition of building residue $5,000
Loss of rear landscaping, barbecue, and shed $6,000
Relocation of signage, electronic gates, etc. $10,000
Assessment of Compensation $154,100
Mr Jewell has valued the office/dwelling on the resumed land as for the enclosed 108 m² floor area at $400 per m² and as for 20 m² of verandah at the rate of $200 per m². For the allowance he has made for the cost of demolition of this building post-resumption, he relies on a cost of $4,500 provided to him by Mr Davidson, to which he added $500 for considerable incidental costs. As for the assessment of $6,000 compensation for the value of the shed which has to be demolished, (and for the barbecue and landscaping), Mr Jewell says that the building measured 5.7 metres by 5 metres on the enclosed area without an awning. As to his assessment of $10,000 compensation for the relocation of the signage and electronic gates, etc., Mr Jewell relied upon quotations received by Dalapat Pty Ltd which indicated a cost of $10,000 was involved. Mr Davidson who was later called in evidence, and who carried out the work, agreed that the quotes were fair.
As for his “before and after” method of compensation assessment, Mr Jewell’s valuation (again adjusted for business losses) is:
Value of property and business before resumption $1,100,000
Value of property and business after resumption $910,165
Plus residual value of front land $93,600 $1,003,765
Direct loss in value $96,235
Cost of office/dwelling demolition $5,000
Value of office/dwelling $47,200
Cost of relocation of electronic security gates,
front signage and sundries $10,000 $62,200
Total Valuation of Compensation $158,435
Mr Jewell has had regard to a number of vacant sales in the area when determining the value of the resumed land and the reduction in the value of the front section of the retention area. They include:
Sale No. 1 - Lot 13 on RP 190377 - 1,500 m² - Livingstone to Kardum on 2 August 1994 for $145,000 ($97 per m²) - situation 4 Ivan Street, Labrador.
Mr Jewell says this is a “General Industry” zoned site in a secondary road and of similar value to the subject residual land fronting a service road.
Sale No. 2 - Lots 9 and 10 on RP 880370 - 3,000 m² - Gibb to Marine Finance on 15 November 1994 for $300,000 ($100 per m²) - situation 22-24 Gibbs Street, Labrador.
Mr Jewell says this is a “General Industry” zoned site again in a secondary road and of similar value to the subject residual land fronting a service road.
Sale No. 3 - Lots 4 and 5 on RP 880369 - 3,000 m² - Gibb to Mohammad on 21 November 1994 for $270,000 ($90 per m²) - situation 12-14 Gibbs Street, Labrador.
Again Mr Jewell says this is a “General Industry” zoned site in a secondary road and of similar value to the subject residual land fronting a service road.
Mr Jewell contends that his “before” resumption value of $125 per m² for the subject land, and his “after” resumption value of $100 per m² for it, are in line with the sales evidence, especially as after the resumption the retention area land is more like the Gibbs Street sites without the direct Brisbane roadway frontage.
Commenting generally, Mr Jewell told us that all of the service road construction following resumption was on the land resumed from Dalapat Pty Ltd and that prior to resumption, customers of the business on the parent parcel experienced no difficulty with vehicle ingress and egress from the land to Brisbane Road in either direction. But after resumption, and the construction of the roadworks, Mr Jewell says access is to the service road and in turn from the service road to Brisbane Road at two access points. Mr Jewell says that the customers may experience some difficulty locating the subject property from the service road access points. He does not agree with a proposition put to him that the construction of the service road has improved access to the subject site.
Also called in evidence by the appellant Cantray Pty Ltd was Garth Elliott Davidson, who with his wife is the claimant company owner. Mr Davidson’s evidence was largely directed towards the proof of the claim by Tulloch Trading Company Pty Ltd for business losses consequent upon the carrying out of the roadworks on the resumed land. I deal with this claim later in this judgment.
The relevant aspects of Mr Davidson’s evidence which was led in support of the Cantray Pty Ltd claim include that he confirms that the contract price for the demolition of the office/dwelling-house was $4,500, and in his view, Mr Jewell’s decision to add $500 for the contingencies was “just about spot on”. The signage had to be unbolted, lifted out of place and taken away, stored, and then relocated once all the roadworks were completed. Mr Davidson obtained quotes for the removal of the signage, and for the removal of the electronically controlled gates, and these were very similar to the quotes obtained by Dalapat Pty Ltd. But because there would be less disruption to the business, Mr Davidson decided it would be better for himself and his son (who is employed in the company) to carry out the work involved, and the only workmen he got in was to tidy up at the end for which he paid around $1,100.
Valuation evidence from Mr Parsons was called by the respondent Council of the City of Gold Coast. He says that the location of the property affected by the resumption is in a well-established industrial area which is predominantly zoned “General Industry”. The area is serviced by vehicular traffic along Brisbane Road which is a major arterial road carrying a heavy volume of traffic.
Mr Parsons says that prior to the resumption, ingress and egress was available to the subject property to both east and west bound traffic, but this was difficult and dangerous due to the crest of the hill being located approximately 50 metres to the west of the property frontage. Mr Parsons describes Brisbane Road post-resumption as being a four-lane road with two parking lanes, with a centre median strip. A two-lane bitumen sealed service road has been built since resumption on the southern side of Brisbane Road, and Mr Parsons confirms that access from the subject property is via this service road to ingress/egress traffic light controlled intersections to Brisbane Road. Mr Parsons considers that the service road has enhanced accessibility and visibility to properties which front it, including the subject property, on the southern side of Brisbane Road.
Mr Parsons confirms that the resumption affects improvements on the parent parcel including the office/dwelling, the hardstanding visitors’ car park and turning area, landscaping, steel fencing, an electronically controlled security gate, and signage. He also confirms that to maintain the pre-resumption storage operations, it was, post-resumption, necessary to relocate or rebuild the office/dwelling, and required the demolition of the barbecue, some weld mesh fencing, an old metal deck double lock-up garage and carport (described by Mr Jewell as a metal clad shed).
Mr Parsons’ assessment of compensation is made up, using the “piecemeal” method, as follows:
Value of land resumed -
396 m² @ $75 per m² $30,000
Value of office/dwelling-house -
Living area 109 m² @ $350 per m² $38,000
Verandas 18 m² @ $175 per m² $ 3,000 $41,000
Value of old shed and carport $6,000
Value of ground improvements including bitumen
sealed hardstanding, landscaping, letterboxes,
barbecue, fencing, etc. $10,000
Total Compensation $87,000
In addition to this assessment, Mr Parsons recognises that the actual relocation costs for the signage, fencing, security lighting and the electronic gates is compensable under the heading of disturbance, together with the actual out-of-pocket expenses for the demolition of the office/dwelling.
Mr Parsons told us that there are not a lot of comparable sales available to assess compensation principally because of the comparatively large size of the parent parcel which is in the order of 8,000 m², and because the parent parcel is very awkwardly shaped. As with Mr Jewell, Mr Parsons also relies upon “General Industry” zoned sales evidence in Gibbs Street as a basis for his valuation of the land resumed. Details of his sales are:
18 Gibbs Street - Gibbs Holdings Pty Ltd (Trustee) to Marine Finance Corporation Pty Ltd in March 1995 for $135,000 ($90 per m²) - area 1,500 m².
Mr Parsons described this as a vacant, level, rectangular shaped allotment encumbered by an easement for drainage and sewerage purposes. Zoning “General Industry”.
20 Gibbs Street, Labrador - Gibbs Holdings Pty Ltd (Trustee) to Marine Finance Corporation Pty Ltd in January 1995 for$135,000 ($90 per m²) - area 1,500 m².
Mr Parsons indicates this as being a vacant, level, rectangular shaped allotment encumbered by an easement for drainage and sewerage purposes. It is zoned “General Industry”.
8 Gibbs Street - Gibbs Holdings Pty Ltd (Trustee) to W O’Brien and R Louis in December 1994 for $190,000 ($110 per m²) - area 1,722 m².
Mr Parsons describes this as a vacant level rectangular shaped site encumbered by an easement for drainage and sewerage purposes. It is zoned “General Industry”.
10 Gibbs Street - Gibbs Holdings Pty Ltd (Trustee) to W O’Brien and R Louis in December 1994 for $140,000 ($93 per m²) - 1,500 m².
Mr Parsons describes this as a vacant level rectangular shaped inside lot also encumbered by an easement for drainage and sewerage purposes. Zoning “General Industry”.
12 Gibbs Street - Gibbs Holdings Pty Ltd (Trustee) to MO Hashimi and S Hashimi in December 1994 for $135,000 ($90 per m²) - 1,500 m².
Mr Parsons also describes this as a vacant level rectangular shaped inside allotment, also encumbered by an easement for drainage and sewerage purposes. Zoning “General Industry”.
655 Pine Ridge Road, Labrador - NPA Nominees Pty Ltd to Bycroft Enterprises in December 1995 for $550,000 ($68 per m²) - area 8,038 m².
Mr Parsons says this is an elevated inside allotment with gentle to moderate fall from the road to the east. Improvements include a large two-storey brick residence. The site has a poor frontage to depth ratio and Mr Parsons considers it to be situated in an inferior location when compared with the resumed land.
Mr Parsons is aware that the subject property and business sold in 1995 after auction for $1,100,000, and that the sale involved the trade of four strata title commercial units by Cantray Pty Ltd. He confirms that the sale price was apportioned as to $945,000 for the freehold property and as to $155,000 for the business. The strata title commercial units have an estimated value of $550,000.
Mr Parsons is also aware that a vacant site located at 233 Brisbane Road has been listed for sale at $750,000 since February 1996 with no sale so far eventuating. This allotment has a poor frontage to depth ratio and is generally a level site with direct access onto Brisbane Road. The land area is 1.037 ha and the zoning is “General Industry”. Mr Parsons calculates that the asking price reflects $72 per m² and he considers the subject parent parcel to be inferior to this site.
Commenting on his valuation methodology, Mr Parsons says that the most appropriate method of assessing compensation when part only of a parcel of land is resumed is the “before and after” method of valuation, but, as I infer, since such a small area of land has been resumed relative to the area of the parent parcel, then in this case he feels the most practical valuation method to use is the “piecemeal” approach.
Mr Parsons does not agree with Mr Jewell’s assessment of compensation for the diminution in the value of the “front 936 m²” of land at the rate of $25 per m². He says it is the effect, if any, of the resumption on the whole of the retention parcel (7,626 m²) which has to be considered, and I agree in principle with this contention.
I now turn my attention to the determination of compensation, but before so doing I should indicate that, at the invitation of the parties and in company with the participants, I took a view of the subject land and the sales evidence parcels referred to in evidence by the valuers. This has been of assistance to me in my task.
There can be no doubt that best basis of valuation for compensation assessment where part only of a parcel of land is resumed is the “before and after” method. There is ample judicial authority in support of this view. But in this case, I am in serious doubt that I should be influenced by Mr Jewell’s “before and after” valuation. It adopts for its foundation the purchase price paid for the land and improvements and the storage business by Cantray Pty Ltd and G & J Davidson Pty Ltd as a going concern as the “before” valuation. The evidence is that there was involved in that purchase the trade by Cantray Pty Ltd to Dalapat Pty Ltd of a commercial medical centre block of units known as the Ashmore Professional Centre situated on Lots 2/6 in BUP 13501, County of Ward, Parish of Nerang, for $550,000. But to place reliance upon the $1,100,000 purchase price for the property and business as evidence of its value is questionable in view of the evidence of Mr Davidson that “it was a sale where the vendor and myself worked it out to the best in our interests”. Further Mr Davidson was not aware of the basis of the apportionment of the purchase price as between the land and improvements contract and the sale of business contract. In these circumstances, the only reliable valuation evidence before the Court is that based on the “piecemeal” method of valuation and, of course, the Court is bound for its determination of compensation by the evidence before it.
I agree with Mr Parsons that the available sales evidence is really not directly comparable in the sense that only 396 m² of the subject land is being resumed. But I must consider the merits of the sales evidence, and I find, notwithstanding the absence of Brisbane Road frontage, that the sales in Gibbs Street form the best basis of valuation for the “piecemeal” approach. The larger area sale in Pine Ridge Road is really not comparable with the subject land. Perhaps the most comparable site is the vacant site at 233 Brisbane Road but it has not yet sold, and again there is authority that, for valuation purposes, offers to buy or sell properties do not constitute a reliable basis of valuation.
Doing the best I can with the conflicting views of two very experienced valuers, I have come to the conclusion that a value of $100 per m² for the resumed land is not unreasonable, and I find compensation for it accordingly.
With regard to the claim for loss in value for the front section of 936 m², I find this unsustainable particularly in that the effect of the resumption is to be assessed in relation to the whole of the retention area. In any case, I am not convinced that the value of the retention area has been injuriously affected overall by the carrying out of the roadworks. Certainly it could well be that the exposure of the property to passing traffic on Brisbane Road has been diminished, but on the evidence, and on my view of the property, I certainly could not find that access to and from Brisbane Road from the retention area via the service road and traffic light controlled intersections is adversely affected by the carrying out of the roadworks, especially in view of the evidence about the access to Brisbane Road pre-resumption.
I now consider other aspects of the Cantray Pty Ltd claim. In valuation terms, there is an acceptable disparity between the valuers as to the value of the office/dwelling. The valuers’ measured floor areas of the building, for practical purposes, is identical. The difference in value results from the application of a value of $400 per m² (Mr Jewell) and $350 per m² (Mr Parsons) for the enclosed floor area of the building. I am conscious that in cases involving the determination of compensation, doubts are to be resolved in favour of a more liberal estimate than in revenue cases, viz. The Commissioner of Succession Duties (SA) and Executor Trustee and Agency Company of SA Limited and Others (1946-7) 74 CLR 358, p.373 - Dixon J). I adopt Mr Jewell’s valuation of the office/dwelling in the sum of $47,200.
It seems the most appropriate means of considering the losses claimed for the loss of front landscaping, fencing and paving, rear barbecue and shed should be on an overall basis. Mr Jewell assesses compensation for these items in the aggregate sum of $19,000. Mr Parsons’ estimate is $16,000. I cannot on the evidence be convinced that I should prefer one valuer’s estimate to the exclusion of the other’s opinion. For the same reason as with the office/dwelling, (a liberal estimate), I again adopt Mr Jewell’s assessment of compensation for these items.
This then, leaves the claim for the demolition costs of the building, and for the relocation costs of the signage, electronic gates, etc. for consideration. Mr Parsons properly regards these items as being compensable, but understandably was not in a position to quantify compensation for them. Again I adopt Mr Jewell’s estimates, based as they are for the most part on cost information gained by him from Mr Davidson. I so do notwithstanding that the relocation works on the signage, electronic gates etc., was carried out not in accordance with the tender quotations but mainly by Mr Davidson and his son.
In the result then, my determination of compensation for the resumption by the Council of the City of Gold Coast of Lot 99 on RP 880419, County of Ward, Parish of Barrow, is:
Loss of 396 m² of land @ $100 per m² $39,600
Loss of front landscaping, fencing and paving $13,000
Loss of office/dwelling building $47,200
Demolition costs of building residue $5,000
Loss of rear landscaping, barbecue and shed $6,000
Relocation of signage, electronic gates etc. 10,000
Total compensation for land and improvements $120,800
resumed
Valuation fees involved in the preparation of the claim for compensation have been paid. It is agreed between the parties that reasonable legal fees involved in the preparation and lodgment of the claim for compensation are $2,000. Compensation for legal fees, under the heading of disturbance, is accordingly determined.
In summary then, my determination of compensation in the Cantray Pty Ltd claim is:
Compensation for loss of land and improvements $120,800
Compensation for disturbance (legal fees) $2,000
Total award of compensation $122,800
Re: Tulloch Trading Co Pty Ltd Claim
I now consider the claim for compensation filed during the hearing by Tulloch Trading Company Pty Ltd (A96-46) for business losses. As aforementioned, it is submitted by the respondent Council of the City of Gold Coast that this claim for business losses has no standing in law, as it cannot be made by the company presently conducting the storage business (Tulloch Trading Company Pty Ltd). It is further submitted by the respondent Council that the only party entitled to compensation for business losses, if any, was the owner of the land and the business at the date of resumption (Dalapat Pty Ltd), as, although rights to compensation are generally assignable, a personal right, such as a right to lost profitability, cannot be assigned.
On the other hand, the Court is urged by counsel for the claimant to consider the claim on the basis of the general principle that under the provisions of s.20 of the Acquisition of Land Act 1967, losses such as those claimed by Tulloch Trading Company Pty Ltd are properly compensable, provided of course they are proven. The claimant company says that the losses fall to be compensated under the heading of “disturbance”, and that the Court should look behind what might otherwise seem to be legal technicalities or impediments and consider the claim since the contract of sale for the land and improvements to Cantray Pty Ltd and the contract of sale of the business to Tulloch Trading Company Pty Ltd were subject to completion each to each.
Compensation entitlements which arise as a result of a resumption do so under the provisions of s.12 of the Acquisition of Land Act 1967. Subsection (5) of that section reads:
“(5) On and from the date of publication in the Gazette of the proclamation or, in the case of Brisbane City Council, the date of publication in the Gazette of the notification of resumption the land thereby taken shall be vested or become Crown land as provided by the foregoing provisions of this section absolutely freed and discharged from all trusts, obligations, mortgages, charges, rates, contracts, claims, estates, or interest of what kind soever, or if an easement only is taken, such easement shall be vested in the constructing authority or, where the proclamation so prescribes, in the corporation requiring the easement, and the estate and interest of every person entitled to the whole or any part of the land shall thereby be converted into a right to claim compensation under this Act and every person whose estate and interest in the land is injuriously affected by the easement shall have a right to claim compensation under this Act.”
Now there can be no doubt that the claimant Tulloch Trading Company Pty Ltd did not at resumption date, hold an estate or interest in the land taken, and accordingly it is not entitled to claim compensation for business disturbance. Clearly Dalapat Pty Ltd owned the business at the relevant date and it seems only Dalapat Pty Ltd the then owner of the land, had any legal standing as a prospective claimant for business losses in this case. I do not see this finding as being necessarily prejudicial to the rights and interests of Tulloch Trading Company Pty Ltd (or the former G & J Davidson Pty Ltd), as it was no doubt in a position to consider the deleterious effect, if any, the proposed roadworks would have on the business it was about to purchase, and this was a fact available to it in the deliberations involved in negotiating a purchase price for the business. In addition, I adopt the submission by the respondent that if an entitlement was established, compensation for the business loss suffered by Dalapat Pty Ltd as a direct result of the resumption is not assignable. This is perhaps why there is no assignment of compensation entitlement clause in the contract of sale of the business to G & J Davidson Pty Ltd. I have come to this conclusion despite the valiant attempt by counsel for the claimants to convince me otherwise. The claim for compensation by Tulloch Trading Company Pty Ltd has no locus standi before the Court. Accordingly, Tulloch Trading Company Pty Ltd has no entitlement to compensation for business losses consequent upon the resumption by the respondent Council of the City of Gold Coast of Lot 99 on RP 880419, County of Ward, Parish of Barrow.
Section 28 of the Acquisition of Land Act 1967 provides that the Land Court may order that interest be paid upon the amount of compensation determined by it. Further, that such interest shall be at such rate per centum per annum that the Land Court deems reasonable. The section further provides that interest shall not be payable in respect of any amount of compensation advanced under s.23 of the Act.
The Court is advised that a sum of $87,000 was paid by the respondent Council of the City of Gold Coast to Cantray Pty Ltd by way of an advance against compensation on 26 August 1995.
I order that, in addition to compensation payable, the respondent Council of the City of Gold Coast pay to the claimant Cantray Pty Ltd interest at the rate of 8.25% per annum on the following sums and for the following periods:
On the sum of $120,800 for the period commencing on 7 April 1995 (the date of resumption) and ending on 26 August 1995 (the date of payment of the Advance), and
On the sum of $33,800 for the period commencing on 27 August 1995 and ending on the day immediately preceding the date upon which final payment of compensation is made, and
On the sum of $2,000 (legal fees) for the period commencing on the date the fees were paid by the claimant (if they were paid) and ending on the day immediately preceding the date upon which final payment of compensation is made.
CH CARTER
MEMBER OF THE LAND COURT
1
0
0