Goldmate Property Luddenham No. 1 Pty Ltd v Transport for NSW (No. 2)

[2024] NSWLEC 40

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Goldmate Property Luddenham No. 1 Pty Ltd v Transport for NSW (No. 2) [2024] NSWLEC 40

Hearing dates:

8, 9, 10, 11, 12, 15 and 16 May 2023; written submissions filed 12, 18 and 19 December 2023; further written submissions filed 20, 27 February 2024 and 5 March 2024

Date of orders:

19 April 2024

Decision date:

19 April 2024

Jurisdiction:

Class 3

Before:

Duggan J

Decision:

See paragraph 12

Catchwords:

COMPULSORY ACQUISITION – Application to reopen – interests of justice – evidence not relevant – Application dismissed

Legislation Cited:

Evidence Act 1995 (NSW)

Land Acquisition (Just Terms Compensation) Act 1991 (NSW)

Cases Cited:

Chhabra v Ku-ring-gai Council [2021] NSWLEC 1009

Goldmate Property Luddenham No. 1 Pty Ltd v Transport for NSW [2024] NSWLEC 39

Urban TransportAuthorityofNSWvNweiser (1992) 28 NSWLR 471

Category:

Procedural rulings

Parties:

Goldmate Property Luddenham No. 1 Pty Ltd (Applicant)
Transport for NSW (Respondent)

Representation:

Counsel:
T Hale SC with N Eastman (Applicant)
N Hutley SC with M Astill and E Dunlop (Respondent)

Solicitors:
Colin Biggers & Paisley Lawyers (Applicant)
Clayton Utz (Respondent)

File Number(s):

2022/00161771

Publication restriction:

No

JUDGMENT

Application to reopen

1. By Notice of Motion dated 30 November 2023, the Applicant sought to reopen and adduce evidence relating to an announced change to the funding arrangements relating to the M7 and M12 interchange. The orders sought in the Notice of Motion were opposed by the Respondent.

2. For the purposes of this decision, the definitions used in these reasons are the same as those defined in the judgment Goldmate Property Luddenham No. 1 Pty Ltd v Transport for NSW [2024] NSWLEC 39.

3. The present proceedings relate to the determination of value pursuant to provisions of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW). That determination is to be made as at the Date of Acquisition. The evidence the Applicant wished to adduce, if leave to reopen was granted, related to matters that came into existence well after the Date of Acquisition and related to matters with respect to the funding arrangements between the Commonwealth and State Governments. The Applicant accepted that a change to funding did not necessarily alter the nature and extent of the physical works under consideration in the proceedings. Further, the Applicant was unable to identify how this information relevantly related to the matters in issue in the proceedings.

Background

4. The parties each made submissions as to whether leave should be granted to reopen and adduce further evidence, which was provided to me by way of affidavit. Further, each party made written submissions as to how the further evidence should be treated in my consideration of the substantive proceedings in the event that leave was granted.

5. The parties agreed that the Notice of Motion and, if leave be granted, the consideration of the further evidence, be determined in chambers on the papers. It was agreed that the determination of the Notice of Motion and my reasons would be provided with the determination of the substantive proceedings.

Findings

6. I have determined to dismiss the Notice of Motion for the reasons that follow.

7. The relevant principles that apply to an application to reopen are well settled: Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 per Clarke JA at 478- 479 (with whom Mahoney and Meagher JJA agreed); Chhabra v Ku-ring-gai Council [2021] NSWLEC 1009 at [17]-[18]. The question to be considered is whether the interests of justice are better served by allowing or rejecting the application to reopen.

8. I note that the Respondent does not contend that it will be prejudiced by the reopening of the evidence.

9. Having regard to the interests of justice, I consider that it is appropriate to consider whether the evidence is relevant (in the sense identified in s 55(1) of the Evidence Act 1995 (NSW)) to an issue for determination in the substantive proceedings.

10. The issue to which the Applicant contended the evidence went to was the proper characterisation of the public purpose of the relevant acquisition. I accept that the characterisation of the public purpose was a central issue in the proceedings. However, the evidence sought to be adduced could be of no probative value in making that determination as:

1. The evidence related to a change in circumstances some two and a half years after the Date of Acquisition;

2. The funding arrangements between the two Governments affects how the infrastructure will be funded, not whether it will be physically constructed; and

3. The funding arrangements, whilst identified in the announcement of the WSIP, were the mechanism for the implementation of the public purpose, not the scope or nature of that public purpose. That is, it was the works to which the funding related that comprise the public purpose, not the means by which the works were to be paid for.

11. Accordingly, I do not consider that the interests of justice in this case favour the granting of leave to reopen the evidence.

Orders

12. For the reasons set out above, the following orders are made:

1. The Applicant’s Notice of Motion filed 30 November 2023 is dismissed; and

2. The costs of the Notice of Motion be costs in the cause.

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Amendments

19 April 2024 - Amendment to catchwords.

Decision last updated: 19 April 2024