Commissioner of Highways v Dorchester Pty Ltd

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
COMMISSIONER OF HIGHWAYS v DORCHESTER PTY LTD & OTHERS
[2021] SASC 137
Judgment of Judge Dart a Master of the Supreme Court
REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - COMPENSATION
REAL PROPERTY - GENERAL PRINCIPLES - EJECTMENT
Land acquired by the applicant - third interested party tenant pursuant to an unregistered lease - acquisition has the effect of extinguishing the lease - notice of possession given - 6 September 2021 nominated as the date for possession - third interested party has not vacated the premises - applicant seeks order of ejectment - third interested party says applicant not presently entitled to an order for ejectment.
Held:
1. The applicant has leave, to the extent necessary, nunc pro tunc, to file an interlocutory application in these proceedings seeking an order for ejectment.
2. The third interested party is to provide vacant possession of the land comprised and described in Certificate of Title Register Book Volume 6255 Folio 948 to the Commissioner on or before 4.00pm on 13 December 2021.
3. The Commissioner is to forthwith pay the sum of $40,000 into the Court’s Suitors Fund to the credit of this action as part-payment of compensation due to the third interested party.
4. Costs of application reserved for further consideration.
Land Acquisition Act 1969 (SA) s 10, s 16, s 23A, s 24, s 24A; Land and Valuation Division Rules 2014 r 4(2)(e), r 5, r 12(4); Uniform Civil Rules 2020 (SA) r 10, r 12; Supreme Court Act 1935 (SA) s 27, referred to.
Hall v Nominal Defendant (1966) 117 CLR 423; Licul v Corney (1994) 180 CLR 213, considered.

COMMISSIONER OF HIGHWAYS v DORCHESTER PTY LTD & OTHERS
[2021] SASC 137
Civil

This is an application by the Commissioner of Highways (“Commissioner”) by which he seeks an order evicting the third interested party from land on Glen Osmond Road. The Commissioner is entitled to the order sought.
Background
The Commissioner has commenced works to widen and generally upgrade the intersection of Glen Osmond and Fullarton Roads. As part of that project the Commissioner has acquired various parcels of land. Relevant for this matter is the land comprised and described in Certificate of Title Register Book Volume 5443 Folio 399, being the land at 179 Glen Osmond Road Frewville.
The first interested party, Dorchester Pty Ltd, was the registered proprietor of the land. The second interested party, Australia & New Zealand Banking Group Ltd held a mortgage on the land. This application deals with the third interested party, Nordburger Pty Ltd (“Nordburger”), a tenant of the first interested party, pursuant to an unregistered written lease. It conducts a fast-food outlet on the site.
Structure of the Land Acquisition Act 1969
The Land Acquisition Act 1969 (“the Act”) contains a structured approach for the acquisition of land and the payment of compensation when land is acquired by a relevant government authority. If the amount of compensation is not able to be agreed between parties, jurisdiction is vested in this Court to determine the appropriate compensation.
There are a number of sections of the Act which are relevant to the dispute in this matter. The first is s 10, which provides:
10—Notice of intention to acquire land
(1)Subject to this Act, if the Authority proposes to acquire land (other than native title), the Authority must give a notice of intention to acquire the land to each person whose interest in the land is subject to acquisition, or such of those persons as, after diligent inquiry, become known to the Authority.
The Commissioner complied with the obligation in s 10(1) by serving notices of intention to acquire land on Dorchester and Nordburger on or about 19 August 2020. There is no dispute about the service of those notices and no issue arises in respect of s 10.
The next relevant section is s 16:
16—Notice of acquisition
(1)Subject to this Act,[1] the Authority may, at least three months after the first occasion on which any notice of intention to acquire was given but before the period for acquisition of the land comes to an end,[2] publish a notice of acquisition in the Gazette.
(2)On publication of the notice of acquisition—
(a)the land vests in the Authority to the extent of the interest specified in the notice; and
(b)a mortgage, charge, encumbrance, trust or other interest affecting the land (except native title) is, to the extent it affects the land subject to the acquisition, discharged; and
(c)if a residual interest remains after the acquisition, the interest is modified to the extent required by the acquisition.[3]
[1]    See in particular Division 1 of Part 4 which imposes limitations on the acquisition of native title in land in certain circumstances.
[2]    The period for acquisition of the land is the period of 18 months after the notice of intention to acquire was given (see section 15(4)) or a longer period fixed under section 15(4a).
[3]    The acquisition of land under this section extinguishes native title to the extent permitted by the Native Title Act 1993(Cwth) (see sections 24MD(2), (2A) and (3)).
The notice of acquisition was published in the Government Gazette on 6 May 2021. The publication of the notice effected the acquisition. As a consequence of the operation of s 16(2)(b), the leasehold interest of Nordburger was extinguished. That being the case, Nordburger became, in effect, a trespasser on the land. Subject to a matter to which I will come, it had no entitlement to remain on the land.
The next relevant section is s 23A:
23A—Offer of compensation and payment into court
(1)Subject to this section, if the Authority gives notice of the acquisition of land, it must make an offer to the person or persons whom it believes to be entitled to compensation for the acquisition, stating the amount of compensation the Authority is prepared to pay.
(1a)However, the Authority need not make an offer under subsection (1) in the following circumstances:
(a)if the Authority considers that the amount of compensation is unable to be determined at the time the notice of acquisition is given, in which case the Authority must, as soon as is reasonably practicable after the amount of compensation is able to be determined, make an offer in accordance with subsection (1);
(b)in any other circumstances prescribed by the regulations, in which case the Authority must make an offer in accordance with any requirements set out in the regulations.
…
(3)The Authority must, within seven days after making an offer of compensation, pay the amount offered into the Court.
The Commissioner made an offer to Dorchester as registered proprietor of the land and paid an amount into Court shortly after the date of acquisition. The matter with Dorchester subsequently resolved.
At the time of acquisition no offer was made to Nordburger; the reason for that being the Commissioner considered that he was not able to determine the amount of compensation due to Nordburger. Until very recently, it was not clear whether Nordburger would be able to relocate, or whether the store at Frewville would simply close. The compensation amount would differ substantially depending on which option was pursued.
The Commissioner engaged a real estate agent to assist Nordburger with acquiring a suitable alternate premises. The Commissioner paid for that process. In the event, no suitable premises has been located. It is now clear that the compensation will need to be calculated on the basis that the store will simply shut, without relocation. The Commissioner has only been aware of that outcome for a short period. He has obtained a number of expert reports on the various components that need to be considered in formulating an offer. An offer of compensation will be made shortly.
The next relevant provision of the Act is s 24:
24—Entry into possession
(1)Subject to this section, if the Authority acquires an interest in land that confers a right of possession, the Authority must, as soon as is reasonably practicable after a notice of acquisition is published in relation to the land, give written notice to the occupier of the land of the date on which the Authority will enter into possession of the land (the possession date), being—
(a)in the case of land relating to a declared acquisition project—the date specified by the Authority (being a day on or after the date on which notice is given under this subsection); or
(b)in any other case—a date not less than 90 days after the date on which the notice of acquisition is published.
The Commissioner’s entitlement to possession of the land does not arise until the acquiring authority fixes the possession date by notice. As the section provides, that date may not be less than 90 days after the gazettal of the notice of acquisition. The requirement to give 90 days’ notice of intention to take possession is to protect people with an interest in acquired land and give them sufficient time to organise their affairs.
The Commissioner gave the s 24 notice to Dorchester and Nordburger on or about 10 May 2021. The notice nominated 16 August 2021 as the possession date. Nordburger was entitled to remain in possession until that date. Thereafter there were communications between the Commissioner and a solicitor then acting for Nordburger. The possession date was altered by agreement to 6 September 2021. It is now more than six months since the service of that notice on Nordburger.
The final relevant section is s 24A:
24A—Court orders in relation to entry into possession etc
(1)The Authority may apply to the Court for 1 or more of the following orders:
(a)if the Authority is entitled to enter into possession of land acquired under this Act—an order that a person be ejected from that land;
(b)an order that a person who owes rent to the Authority under section 24 pay the rent owed to the Authority;
(c)such other orders as the Authority considers appropriate.
(2)The Court may, on an application under this section, make such orders as it considers appropriate.
The Commissioner is entitled to enter into possession of the land, having given the requisite notice under s 24. The entitlement has existed since 6 September 2021. The Commissioner is therefore able to apply to the Court for an order of ejectment. The Commissioner has complied with the statutory scheme, served the relevant notices and is presently entitled to enter into possession.
Procedural objections of Nordburger
These proceedings were commenced on 12 May 2021 by way of an interpleader action. This is the usual manner acquisition actions commence, because there is a requirement to pay monies into court. Nordburger was named as the third interested party.
It appears that the proceedings were not initially served on it. That may have been due to the fact that no monies were paid in on account of Nordburger’s interest at the time the proceedings were commenced. The matter subsequently resolved with the first and second interested parties. The Court made orders for payment out of monies to each of those parties.
On 15 October 2021, the Commissioner filed an interlocutory application seeking the ejectment order. It was served on Nordburger and the matter was listed for directions on 19 October. Nordburger attended on the directions hearing and advised the Court that it opposed the making of an order for ejectment. It was represented by its Director, who is an admitted legal practitioner, but does not practice as such.
A timetable was set which allowed Nordburger to file any affidavits in opposition to the application and fixed a time for the filing of submissions. The matter was listed for argument on 23 November. In the result, submissions were filed but Nordburger did not avail itself of the opportunity to file any affidavit material. Since the hearing, each party has filed further brief submissions.
On the morning of 23 November Nordburger filed a document headed Notice of Procedural Objections. The effect of the notice was to submit that there were procedural irregularities which meant the matter should be adjourned.
Several issues were raised. The first was whether the Commissioner is pursing the ejectment in the proper form of proceedings. The second was whether the action remained on foot. On the hearing it was also suggested that a Master should not deal with the matter; it should be dealt with by a Justice.
Proceedings under the Act are dealt with, in part, by the Land and Valuation Division Rules (“LVD Rules”) and in part by the Uniform Civil Rules 2020 (“UCR”). The LVD Rules were completely overhauled in 2014. As a result of the introduction of the Uniform Civil Rules, those rules were substantially amended commencing 18 May 2020. When I say amended, it would be more accurate to say the Rules have been substantially diminished. Large parts of the rules were simply revoked.
To understand the submission put by Nordburger, it is necessary to consider the definition of some of the various actions provided for in the LVD Rules. There is an action called an acquisition action which deals with the acquisition of an interest in land pursuant to a number of different statutes. An acquisition action includes an application for an order of ejectment under s 24(2) of the Land Acquisition Act. [4]
[4] LVD rule 4(2)(e).
The LVD Rules also provide for a lodgement action. A lodgement action is one where the acquiring party pays money into Court under the relevant provisions of the Act. The present action is a lodgement action. Nearly all actions commenced in this Court under the Act are lodgement actions. A lodgement action is required to be commenced as an interpleader action.
There is a complication in dealing with the rules in that, since the amended LVD Rules commenced on 18 May 2020, the Act itself has been amended twice. The LVD Rules have not been amended to encapsulate the amendments in the Act. The power of ejectment is now found in s 24(A) of the Act not s 24, which is the section referred to in the rules.
The other LVD rule to note is rule 5, which provide that the Uniform Civil Rules also apply to LVD proceedings in the Court. That position is modified only by the fact that, if there is an inconsistency between the LVD Rules and the Uniform Civil Rules, the LVD rules prevail. [5]
[5] LVD rule 5.
Prior to the commencement of the UCR and the amendments to the LVD Rules, there existed LVD Supplementary Rules. Those supplementary rules provided for ejectment applications to be made by interlocutory application. That is what has occurred here. That rule no longer exists, but the filing of an interlocutory application is still the appropriate way in which to seek an order for ejectment.
It is important to remember that rules are servants, not masters. A dispute about whether or not the correct action has been commenced is always going to be an arid dispute dealing with form rather than substance.
Nordburger submits that it is not permissible to bring an interlocutory application in the lodgement action and that an acquisition action must be commenced by the Commissioner. That being the case, Nordburger says that no order should be made in this action in respect to ejectment, because ejectment is something to be raised in an acquisition action only.
There are two answers to the submission. The first relates to the operation of the LVD Rules. In particular:
12—General
…
(4) An action governed by this Subdivision may, if a proceeding has been started in the Court in relation to the acquisition or boundary the subject of the action, be made—
(a)if the new action is by the Applicant in the proceeding—by amending the existing Claim and statement of claim to introduce the new action; or
(b)if the new action is by any other party in the proceeding—by cross claim by filing a Cross Claim and statement of cross claim in the prescribed form set out in Schedule 7 to the Uniform Civil Rules.
The effect of LVD r 12(4) is that, where a lodgement proceeding has been started in relation to the acquisition of land, an acquisition action may be pursued in that original action. That is, of course, commonsense. Taken to its logical extension, the submission of Nordburger would require, in a number of matters, the commencement of two proceedings; the first being the lodgement action to pay monies into Court and the second being an acquisition action to have a dispute about the appropriate compensation. That is highly undesirable. The Supreme Court Act 1935 directs the Court to avoid multiple actions.[6]
[6] Section 27.
The second answer is the application of r 12 of the UCR. That is the rule which permits the Court to make any order it considers appropriate in the interests of justice. It permits the Court to override the strict application of any rule. To the extent necessary, I propose to order that the ejectment matter proceed by way of interlocutory application in the lodgement action.
A further submission by Nordburger was that this proceeding is finalised. There is no dispute that, as between the Commissioner and the first and second interested parties, the matter has resolved by the making of final orders. No final orders have ever been made against Nordburger. I do not regard the proceedings as having been finalised.
The next issue is the question of whether a Master may hear the application. The LVD Rules provide jurisdiction of a Master in the following terms:
10—Jurisdiction of Masters
(1) Subject to this rule, a Master may exercise the same jurisdiction as a Judge of
the Court.
(2) An interlocutory proceeding may be heard and determined by a Master.
(3) An application for payment out of monies paid into Court may be heard and
determined by a Master.
(4) The trial of an action can only be heard and determined by a Master if—
(a) a Judge of the Court directs that it is to be heard and determined by a
Master; or
(b) all parties consent to trial by a Master.
The only matter that cannot be dealt with by a Master is a trial or final hearing of an action. The real dispute between the Commissioner and Nordburger is one of compensation in respect of the interest of Nordburger in the subject land being extinguished by operation of the Act. That is the matter that may well go to trial. In this case, because of what will be a complex dispute about the consequences of the closure of one of its premises, it is unlikely the parties will be able to reach agreement.
The question of whether a decision is interlocutory or final is the subject of voluminous judicial consideration. It is often not an easy distinction. A starting point is what was said by the High Court in Hall v Nominal Defendant, in particular by Windeyer J who said: [7]
In most cases the test that seems to be most satisfactory, and the one that accords most nearly with what has been said on the subject in this Court, is it seems to me to look at the consequences of the order itself and to ask does it finally determine the rights of the parties in a principal cause pending between them. It is never enough to ask simply does the order finally determine the actual application or matter out of which it arises; because, subject to the possibility of an appeal, every order does that, unless it be an order that is expressly declared to be subject to variation.
[7] (1966) 117 CLR 423 at 443.

The issue was further considered by the High Court in Licul v Corney where Gibbs J said: [8]
The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view — which was preferred by the Court of Appeal in Salter Rex and Co v Ghosh [1971] 2 QB 597 ; [1971] 2 All ER 865 — is that the test depends on the nature of the application made to the court. The other view which, since Hall v Nominal Defendant (1966) 117 CLR 423 ; [1966] ALR 705 should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties? Within either of those tests the judgment of the Full Court in the present case is not a final judgment. It does not have the effect of finally disposing of the rights of the parties. It leaves it open — at least in theory — to the applicants to make a further application, upon prior notice served on the respondent himself, for an extension of time for service of each summons, and if that extension is granted, and the summonses are served, to proceed with the actions. The order is therefore not final in nature whatever its practical effect may be.
[8] (1994) 180 CLR 213 at 225.
In my view, the issue of ejectment is interlocutory. It is not finally determining any rights of the parties. The rights of the parties to possess and occupy the land are determined by the Act. The Commissioner is the person entitled to possession of the land.
On this application, the Court is not being asked to determine who has the better right to possession. Nordburger has no such right. It is simply obliging Nordburger to vacate a property which it has no right to remain in possession of. The contest between the parties that does exist, and which would be final, is the question of compensation. That is a matter for another day and will be litigated in due course. That is the matter that will need to be dealt with by a Justice rather than a Master. The present application is interlocutory.
Consideration
The sole question is whether the Commissioner is entitled to an order for ejectment in circumstances where Nordburger is not willing to vacate the property. It is clear that the store is profitable and Nordburger wishes to continue trading at the location for as long as it can.
The evidence before the Court from the Commissioner is to the effect that further delay in obtaining possession of the property may cause a delay to the overall project. It is the intention of the Commissioner to demolish the improvements on the land before Christmas. Whether that is still practical is unclear. Nordburger has filed no affidavits. The Court has no evidence of the consequences to it of an ejectment, other than it will cease trading.
The scheme of the Act as set out above is clear. The Commissioner is now the registered proprietor of the land and a new Title has issued.[9] Nordburger’s lease was extinguished. The Act gives a grace period of 90 days for a person with interest in acquired land to vacate the premises, but once that date has expired, the occupant is a trespasser.
[9] Certificate of Title Register Book Volume 6255 Folio 948.
Nordburger’s principal argument is that the land has not been properly acquired under the Act. The argument is that an offer of compensation is a prerequisite for exercising rights over acquired land. It is submitted that the Commissioner did not comply with the statutory obligation to make an offer of compensation and the subject land should not be treated as having been “acquired under” the Act.
The argument is not consistent with the provisions of the Act. The obligation to make an offer of compensation contained in s 23A is mandatory, but s 23A(1a) absolves the Commissioner from the obligation to make an offer of compensation in circumstances where that compensation is not able to be determined. That is the situation here. It is only in the last week or two that Nordburger has advised the Commissioner that it will not seek to relocate the store. The Commissioner will now proceed to make an offer of compensation and pay the money into the suitors Fund.
The other problem with the argument is, as between the Commissioner and the registered proprietor, Dorchester, there can be no doubt that there was a valid acquisition. Monies were paid into the Suitors Fund at the time of acquisition. The Commissioner properly became the registered proprietor of the land and Nordburger’s entitlements at that time were extinguished.
Nordburger has known since 19 August 2020 that it would be required to move and, since 10 May 2021, when it would be required to move. It has had a very lengthy time within which to organise its affairs.
The Commissioner is entitled to the order for ejectment. There is a question of whether conditions should be imposed. Section 24A of the Act gives the Court power to make orders that it considers appropriate.
The material before the Court discloses that, on 3 September 2021, the Commissioner made an offer to provide Nordburger with the services of a removalist to relocate its goods from the land to a storage facility or new premises. This was to be at the cost of the Commissioner, but the costs were to be set off against the claim for compensation.
On 1 October 2021 the Commissioner made an offer to pay Nordburger the sum of $25,000 by way of part-payment of compensation. The purpose of the offer is to permit Nordburger to facilitate removal of its property. It is appropriate to provide Nordburger with funds to assist it with the costs of vacating the premises.
I make the following orders:
1.The applicant has leave, to the extent necessary, nunc pro tunc, to file an interlocutory application in these proceedings seeking an order for ejectment.
2.The third interested party is to provide vacant possession of the land comprised and described in Certificate of Title Register Book Volume 6255 Folio 948 to the Commissioner on or before 4.00pm on 13 December 2021.
3.The Commissioner is to forthwith pay the sum of $40,000 into the Court’s Suitors Fund to the credit of this action as part-payment of compensation due to the third interested party.
4.Costs of application reserved for further consideration.

[2021] SASC 137

1 December 2021