Legal Research
Cases
Carbone v Melton City Council

Carbone v Melton City Council

Link copied

Case Copied 13 May 2020 72 min read

Contents

On this page

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0030

PAOLO CARBONE and GAETANA CARBONE	Applicants
v
MELTON CITY COUNCIL	First Respondent
and
THE REGISTRAR OF TITLES	Second Respondent

---

JUDGES:	TATE, KYROU and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 April 2020
DATE OF JUDGMENT:	13 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 117
JUDGMENT APPEALED FROM:	[2018] VSC 812 (Emerton JA)

---

INTEREST – Whether amount of compensation paid by first respondent prior to judgment for acquisition of part of applicants’ land constituted ‘a debt or sum certain’ that was ‘recovered’ in the proceeding – Whether ‘good cause is shown to the contrary’ – Leave to appeal granted – Appeal allowed – Supreme Court Act 1986 s 58.

---

APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr J D S Barber	Purcell & Purcell
For the First Respondent	Mr J S Graham	Harwood Andrews
For the Second Respondent	No appearance

TATE JA
KYROU JA:

Introduction and summary

The applicants, Paolo and Gaetana Carbone, were the registered proprietors of approximately 10 hectares of land at 828–850 Taylors Road, Plumpton, Victoria (‘Land’). They sold part of the Land to a residential developer, York Place Pty Ltd (‘York’), subject to the registration of a plan of subdivision.

As part of the subdivision, the first respondent, the Melton City Council, acquired part of the Land for active open space and road widening and offered the applicants the amount of $3,104,888 in compensation (‘offered amount’ or ‘compensation sum’) subject to the execution of a deed which included a release and an indemnity in favour of the Council. The offered amount was calculated in accordance with the applicable development contributions plan.[1] The applicants considered the offered amount inadequate and refused to sign the deed. They requested payment of the offered amount as an advance on the compensation payable by the Council. They also sought interest. The Council responded that the offered amount would be paid as soon as the applicants signed the deed.
[1]Part 3B of the Planning and Environment Act 1987 provides the legislative support for development contributions plans.

The applicants commenced a proceeding in the Trial Division in which they relevantly alleged that: the amount of compensation payable was $4,845,000; the legal basis for the Council’s obligation to pay compensation was the Land Acquisition and Compensation Act 1986 (‘LAC Act’); and they were entitled to interest under s 58 of the Supreme Court Act 1986 (‘SC Act’).

As s 58 of the SC Act is central to the issues on the appeal, it is relevantly set out below:

58 Interest to be allowed when debts or sums certain recovered
(1)If in a proceeding a debt or sum certain is recovered, the Court must on application, unless good cause is shown to the contrary, allow interest to the creditor on the debt or sum at a rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 … from the time when…

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 Carbone v Melton City Council 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: [2020] VSCA 117
Decision Date: 13 May 2020

CaseChat Overview and Summary

Carbone v Melton City Council involved a dispute between the applicants, Carbone, and the Melton City Council regarding compensation for the acquisition of part of their land. The matter was heard in the Supreme Court of Victoria, with the Court of Appeal subsequently granting leave to appeal and allowing the appeal. The primary issue for the court was to determine whether the amount of compensation paid by the council prior to judgment constituted a "debt or sum certain" that was "recovered" in the proceeding, and if good cause was shown to the contrary. This issue was significant in assessing the costs of the proceeding.

The court found that the compensation paid by the council did not constitute a debt or sum certain as it was not a fixed or ascertained amount at the time of payment. Rather, the amount was subject to potential adjustment pending the outcome of the proceedings. The court also considered whether good cause was shown to the contrary, which would allow the applicants to recover their costs from the council. The court concluded that good cause was not shown, primarily because the applicants had not presented any evidence or argument to support their claim that the compensation paid should be considered a debt or sum certain. Therefore, the applicants were not entitled to recover their costs from the council.

The Supreme Court of Victoria, upon appeal, allowed the appeal and granted leave for the applicants to appeal to the Court of Appeal. This decision was based on the court's findings that the compensation paid did not constitute a debt or sum certain and that no good cause was shown to the contrary. Consequently, the applicants were not entitled to recover their costs from the council. The final orders of the court included the allowance of the appeal, the grant of leave to appeal, and the direction that the applicants' costs were to be borne by themselves.

Orders