G Capital Corporation Pty Ltd v Roads and Maritime Services

G Capital Corporation Pty Ltd (the applicants) appealed to the Court of Appeal of New South Wales against decisions of the Supreme Court concerning compensation for land compulsorily acquired by Roads and Maritime Services (the respondent). The applicants had entered into contracts for the sale of the relevant land prior to its compulsory acquisition by the respondent, with settlement yet to occur. The applicants objected to the amount of compensation offered, primarily seeking to recover the unpaid purchase price as a loss attributable to disturbance under section 59(1)(f) of the *Land Acquisition (Just Terms Compensation) Act 1991* (NSW). Preliminary questions were directed to the Supreme Court regarding the applicants' entitlement to compensation for this loss, specifically whether there had been an "actual use of land" by the applicants.

The Court of Appeal was required to determine whether the applicants were entitled to compensation for the unpaid purchase price as a loss attributable to disturbance, and whether the Supreme Court had erred in its preliminary findings on this matter. Central to this was the interpretation of "actual use of land" within the context of the *Land Acquisition (Just Terms Compensation) Act 1991* (NSW) and its application to parties who had contracted to purchase land but had not yet completed settlement at the time of acquisition.

The Court of Appeal granted leave to appeal in relation to one of the preliminary questions answered in the negative by the Supreme Court, but refused leave in relation to another. The Court ultimately dismissed the appeal, finding that the applicants were not entitled to compensation for the unpaid purchase price as a loss attributable to disturbance. The legal principle applied concerned the interpretation of "actual use" in the context of compulsory acquisition compensation, and the Court determined that the applicants' contractual rights did not constitute "actual use" for the purposes of establishing a claim for disturbance loss under the Act.

Consequently, the applicants were ordered to pay the respondent's costs of the applications for leave to appeal and the appeals.