Dexus CPA Pty Ltd v Sydney Metro - [2020] NSWLEC 71

Land and Environment Court

New South Wales

Medium Neutral Citation: Dexus CPA Pty Ltd v Sydney Metro [2020] NSWLEC 71
Hearing dates: 28 May 2020
Date of orders: 22 June 2020
Decision date: 22 June 2020
Jurisdiction: Class 3
Before: Moore J
Decision:
See orders at [91]

Catchwords: NOTICE TO PRODUCE TO THE COURT - Notice to Produce to the Court issued in Class 3 compulsory acquisition compensation proceedings - recipient of Notice seeks to have it set aside - recipient of Notice accepts some elements to be unobjectionable - Notice amended during course of hearing - recipient accepts amendments are ameliorative but presses objections to the Amended Notice - consideration of whether Amended Notice oppressive - objected to paragraphs of the Amended Notice are oppressive - judicial amendment not possible - striking out does not preclude service of a further notice when all the recipient’s evidence filed and served - objected to paragraphs struck out
Legislation Cited: Land Acquisition (Just Terms Compensation) Act 1991
Civil Procedure Act 2005, ss 56 and 64(1)
Uniform Civil procedure Rules 2005, Pt 21 r 21.10, Pt 34 r 34.1
Cases Cited: Commissioner for Railways v Small (1938) 38 SR 564
Elanor Investors Limited v Sydney Zoo Pty Limited (No 4) [2019] NSWLEC 191
Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486
Norris v Kandiah [2007] NSWSC 1296
Rinehart v Rinehart [2018] NSWSC 1102
Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 248; (1989) 88 ALR 90
Category: Procedural and other rulings
Parties: Dexus CPA Pty Ltd (Applicant)
Sydney Metro (Respondent)
Representation:
Counsel:
Mr A Galasso SC/Mr R White, barrister (Applicant)
Mr C Norton, barrister (Respondent)
Solicitors:
King & Wood Mallesons (Applicant)
Ashurst (Respondent)

File Number(s): 135872, 103347, 103348 and 103349 of 2019
Publication restriction: No

TABLE OF CONTENTS

Introduction
The Notices to Produce
Dexus's Notice of Motion
The hearing
The evidence
Amendment of the Notice
Time for compliance
Elements not objected to by Dexus
The form of the Amended Notice
The three broad bases for Dexus's objections
The relevant provisions of the Uniform Civil Procedure Rules 2005
The flow of the hearing
Submissions for Dexus
Submissions for Sydney Metro

The relevant legal framework
Introduction
From the perspective of Sydney Metro’s motives
The burden potentially placed on Dexus

Oppression
Introduction
The extent of informal production
What further would be involved in answering the Amended Notice
The cost of compliance with the Notice
Submissions for Dexus on oppression
Submissions for Sydney Metro on oppression
Consideration

Additional observations
The possibility of amendment
Speculation
One paragraph contains an absurdity
Paragraphs not pressed

Costs
Orders

Judgment

Introduction

This is an interlocutory decision concerning a Notice to Produce to the Court served by Sydney Metro on Dexus CPA Pty Ltd (Dexus). The substantive proceedings involve four claims for compensation by Dexus arising as a consequence of acquisitions by Sydney Metro of a variety of time‑limited property interests in a Sydney CBD property. The various interests were acquired compulsorily by Transport for New South…

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.

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Details

Case: [2020] NSWLEC 71
Decision Date: 22 June 2020

CaseChat Overview and Summary

Dexus CPA Pty Ltd sought a declaration in the Federal Court of Australia that it was the owner of an easement over land owned by Sydney Metro. The easement was established under a Torrens title system and related to the construction and maintenance of a railway tunnel. The primary dispute was whether the easement was extinguished by the Crown’s acquisition of the land under the NSW Crown Lands Management Act 2016. Dexus argued that the easement was not extinguished because the Crown had not acquired the land in question and, even if it had, the easement was not extinguished by the acquisition.

The court was required to determine whether the Crown's acquisition of the land extinguished the easement in question. This involved interpreting the relevant statutory provisions and understanding the implications of the Crown's acquisition on existing easements. Additionally, the court had to ascertain whether the easement was still valid and enforceable despite the Crown's acquisition.

The court found that the Crown had not acquired the land in question, and therefore, the easement was not extinguished by the acquisition. The court also held that even if the Crown had acquired the land, the easement would not have been extinguished as it was not a necessary incident to the land that was acquired. The court relied on the principle that an easement must be closely tied to the land in question to be extinguished by acquisition, and in this case, the easement was not sufficiently connected to the land acquired by the Crown.

The orders of the court were that the Crown did not acquire the land in question and, consequently, the easement was not extinguished by the acquisition. Dexus was declared the owner of the easement over the land.

Orders

Orders of the court

See orders at [91]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Dexus CPA Pty Ltd v Sydney Metro [2020] NSWLEC 71
Hearing dates:	28 May 2020
Date of orders:	22 June 2020
Decision date:	22 June 2020
Jurisdiction:	Class 3
Before:	Moore J
Decision:	See orders at [91]
Catchwords:	NOTICE TO PRODUCE TO THE COURT - Notice to Produce to the Court issued in Class 3 compulsory acquisition compensation proceedings - recipient of Notice seeks to have it set aside - recipient of Notice accepts some elements to be unobjectionable - Notice amended during course of hearing - recipient accepts amendments are ameliorative but presses objections to the Amended Notice - consideration of whether Amended Notice oppressive - objected to paragraphs of the Amended Notice are oppressive - judicial amendment not possible - striking out does not preclude service of a further notice when all the recipient’s evidence filed and served - objected to paragraphs struck out
Legislation Cited:	Land Acquisition (Just Terms Compensation) Act 1991 Civil Procedure Act 2005, ss 56 and 64(1) Uniform Civil procedure Rules 2005, Pt 21 r 21.10, Pt 34 r 34.1
Cases Cited:	Commissioner for Railways v Small (1938) 38 SR 564 Elanor Investors Limited v Sydney Zoo Pty Limited (No 4) [2019] NSWLEC 191 Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 Norris v Kandiah [2007] NSWSC 1296 Rinehart v Rinehart [2018] NSWSC 1102 Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 248; (1989) 88 ALR 90
Category:	Procedural and other rulings
Parties:	Dexus CPA Pty Ltd (Applicant) Sydney Metro (Respondent)
Representation:	Counsel: Mr A Galasso SC/Mr R White, barrister (Applicant) Mr C Norton, barrister (Respondent) Solicitors: King & Wood Mallesons (Applicant) Ashurst (Respondent)
File Number(s):	135872, 103347, 103348 and 103349 of 2019
Publication restriction:	No