Dexus CPA Pty Ltd v Sydney Metro

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Dexus CPA Pty Ltd v Sydney Metro [2019] NSWLEC 186
Hearing dates:	27 November 2019
Date of orders:	27 November 2019
Decision date:	27 November 2019
Jurisdiction:	Class 3
Before:	Moore J
Decision:	Separate question refused
Catchwords:	SEPARATE QUESTION – proposed separate question not dispositive of proceedings – necessity for expert evidence on separate question – likelihood of appeal of any determination of separate question – no significant saving of time – separate question not appropriate
Legislation Cited:	Civil Procedure Act 2005, s 56 Land Acquisition (Just Terms Compensation) Act 1991, s 55(f) Uniform Civil Procedure Rules 2005, rr 28.2 and 31.19
Cases Cited:	820 Cawdor Road Pty Ltd v Wollondilly Shire Council (2013) 195 LGERA 170; [2013] NSWLEC 8 Bligh Consulting v Ausgrid [2017] NSWCA 95 Syncept Chatham Pty Ltd v Council of the City of Ryde [2019] NSWLEC 115
Category:	Procedural and other rulings
Parties:	Dexus CPA Pty Ltd (Applicant) Sydney Metro (Respondent)
Representation:	Counsel: Mr A Galasso SC (Applicant) Mr R Lancaster SC (Respondent)   Solicitors: King & Wood Mallesons (Applicant) Ashurst Australia (Respondent)
File Number(s):	103347, 103348, 103349 and 135872 of 2019
Publication restriction:	No

TABLE OF CONTENTS

Introduction

The separate question application

The evidence

Consideration

Orders

EXTEMPORE JUDGMENT

Introduction

1. HIS HONOUR: Dexus CPA Pty Ltd (Dexus) owns land at 60 Castlereagh Street (in the Sydney CBD) upon which a 22-level office building is constructed. Sydney Metro compulsorily acquired, from Dexus, two easements in February 2018, being easements for crane access and for scaffolding. On 13 April 2018, Sydney Metro also acquired a further easement for a safety structure and, finally, on 31 August 2018, Sydney Metro compulsorily acquired a fourth easement, being for a safety structure in the basement.

2. Under the Land Acquisition (Just Terms Compensation) Act 1991 (the Just Terms Act), Dexus has claimed a total compensation from Sydney Metro of nearly $12 million. The bases for compensation are set out in the relevant points of claim appended to the affidavit of Anthony Hill which was read on this motion for a separate question. The affidavit is dated 12 September 2019. Mr Hill is Sydney Metro’s solicitor.

The separate question application

3. On 12 September 2019, Sydney Metro applied to have a separate question set down for hearing and determination prior to dealing with the substantive issues in dispute between the parties. That application was made pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (the UCPR). The proposed question is in the following terms:

Whether, in respect of each of the four easements acquired by Sydney Metro which are the subject of the proceedings:

(a) was there any other land of the Applicant at the date of acquisition which adjoins or is severed from the acquired land for the purposes of the application of s 55(f) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW)?

and

(b)   if the answer to (a) above is “yes” in respect of…