Dexus CPA Pty Ltd v Sydney Metro

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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

  1. 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…

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Details
Case
[2020] NSWLEC 71
Decision Date

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

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