Elmon Pty Ltd v Roads and Maritime Services

[2016] NSWLEC 168

Land and Environment Court

New South Wales

Medium Neutral Citation:	Elmon Pty Ltd v Roads and Maritime Services [2016] NSWLEC 168
Hearing dates:	18 November 2016
Date of orders:	18 November 2016
Decision date:	18 November 2016
Jurisdiction:	Class 3
Before:	Moore J
Decision:	At [11]
Catchwords:	COMPENSATION – compulsory acquisition – Valuer General’s determination of compensation – determination not accepted and proceedings commenced – former owners seek to accept Valuer General’s determination after commencement of proceedings – is determination still open to acceptance – acceptance permissible after proceedings commenced – determination accepted – orders made
Legislation Cited:	Land Acquisition (Just Terms Compensation) Act 1991, ss 44(1), 68(1)
Cases Cited:	Niezabitowski v Roads and Traffic Authority of New South Wales 147 LGERA 517; [2006] NSWLEC 462
Category:	Principal judgment
Parties:	Elmon Pty Ltd (First Applicant) Lastep Pty Ltd (Second Applicant) Roads and Maritime Services (Respondent)
Representation:	Counsel: Mr I Hemmings SC (First and Second Applicants) Ms G Li (Respondent)   Solicitors: Thomson Geer (First and Second Applicants) Corrs Chambers Westgarth (Respondent)
File Number(s):	158049 of 2016
Publication restriction:	No

EX TEMPORE Judgment

1. HIS HONOUR: In this matter, the First and Second Applicants have proposed that I should make orders that would have the effect of implementing an acceptance by the Applicants of the statutory compensation arising from acceptance of the determination of the Valuer-General. The Applicants propose that the forms of orders to do so should be as handed up in their draft Short Minutes, forms of orders that appear to be entirely unexceptional for these purposes.

2. I indicate, as I did during the course of discussion, that I am not prepared under the circumstances to make proposed order (3), but I do propose to reserve the question of costs.

3. The position is this. Section 44(1) of the Land Acquisition (Just Terms Compensation) Act 1991 (the Just Terms Act) indicates that a person is entitled to accept, in this case the persons being two corporations, the amount of compensation offered, that being a statutory offer determined as to its amount by the Valuer-General's assessment.

4. In these circumstances, although the two companies have commenced proceedings after objecting to the terms of that offer, they have decided that they now wish to accept that assessed amount.

5. Biscoe J, in Niezabitowski v Roads and Traffic Authority of New South Wales 147 LGERA 517; [2066] NSWLEC 462 (Niezabitowski), sets out the reasons why the offer remains open and at large for acceptance, despite the fact that the objection has been made and the matter has been set down for determination in litigation before this Court as provided for in the Just Terms Act.

6. What has now happened is that the applicant companies have decided they wish to accept the offer and wish to have that implemented by way of orders in the proceedings. Mr Hemmings SC, counsel for the Applicants, has taken me through both the provisions of the Just Terms Act and the decision of his Honour in Niezabitowski.

7. Ms Li, for the Respondent, objects to me making the orders as sought, and suggests that s 68(1) of the Just Terms Act requires that either compensation is to be granted in consequence of an agreement between them during the proceedings (and she has made it more than abundantly clear this morning that there is no such agreement in the course of these proceedings) or, if no such agreement is reached, in accordance with the decision of the Court.

8. She objects to me determining the matter this morning, saying that there has been no hearing and that the acquiring authority wishes to continue to contest the appropriate amount of compensation to be paid. As to the first proposition, that which I have conducted this morning is a hearing of the Court. The matter has been listed this morning: it is a hearing. It may be a hearing without being a fully contested hearing on the merits but that is a matter that I consider does no longer arise as a consequence of the acceptance pursuant to s 44(1) of the Act of the statutory offer that has been made.

9. That offer, having been accepted, consistent with what his Honour dealt with in Niezabitowski, there are no matters of quantum remaining available to be determined in the proceedings. Quantum arises and is fixed as a consequence of the acceptance of the statutory offer.

10. I accept that the question of costs remains a discretionary matter, capable of being argued, and it is for that reason I have declined to make order (3) as sought by Mr Hemmings. However, I am satisfied that under the present circumstances, the course that is appropriate to be followed is not to do as his Honour did in Niezabitowski and dismiss the proceedings in circumstances where, in that case, the applicant sought to discontinue, but in these proceedings to make the orders (1) and (2) as sought.

11. I therefore make the following orders:

1. Compensation is determined in the sum of $3,114,540 pursuant to s 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (the Just Terms Act) in respect of the compulsory acquisition on 28 August 2015 of Lots 1 and 2 in Deposited Plan 517094 and Lot 1 in Deposited Plan 527320, being the whole of the land in Certificates of Title 1/517094, 2/517094 and 1/527320, known as 4928 Pacific Highway, Harwood;

2. Within 28 days of the date the Respondent receives a duly executed Deed of Release and Indemnity and Direction as to Payment form, the Respondent must pay to the Applicants the amount of compensation referred to in (1) less $2,803,086, being the advance payment made to the Applicants pursuant to s 48 of the Just Terms Act, plus statutory interest calculated in accordance with ss 49 and 50 of the Just Terms Act; and

3. Costs are reserved.

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Decision last updated: 17 February 2017