Great Wall Resources Pty Ltd v O'Sullivan

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New South Wales


Court of Appeal


CITATION: Great Wall Resources Pty Ltd v O'Sullivan & Anor [2009] NSWCA 119
HEARING DATE(S): 15 May 2009
 
JUDGMENT DATE: 
4 June 2009
JUDGMENT OF: Giles JA at 1; Ipp JA at 2; Macfarlan JA at 3
DECISION: (a) The appeal be dismissed as incompetent.
(b) The appellant's Notice of Motion filed on 6 May 2009 be dismissed.
(c) The appellant's application for leave to appeal be dismissed.
(d) The appellant pay the respondents' costs of the purported appeal, the Notice of Motion and of the application for leave to appeal.
CATCHWORDS: APPEAL - leave to adduce fresh evidence - events occurring after date of trial - REAL PROPERTY - valuation of land - relevance of subsequent events
LEGISLATION CITED: Supreme Court Act 1970
CATEGORY: Principal judgment
CASES CITED: Campbell v Backoffice Investments Pty Limited [2008] NSWCA 95; (2008) 66 ACSR 59
Daandine Pastoral Co Pty Ltd v Commissioner of Taxation (1943) 7 The Valuer 299
Doherty v Liverpool District Hospital (1991) 22 NSWLR 284
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272
Janet M Gilchrist & Ors v The Estate of the Late Sara Alexander Taylor [2004] NSWCA 476
TEXTS CITED: A Hyam, The Law Affecting Valuation of Land in Australia, 3rd ed (2004) The Federation Press
PARTIES: Great Wall Resources Pty Ltd (Appellant)
Stephen O'Sullivan (First Respondent)
Norella O'Sullivan (Second Respondent)
FILE NUMBER(S): CA 40249/08
COUNSEL: R B Wilson (Appellant)
T H Barrett (Respondents)
SOLICITORS: Daly Lawyers (Appellant)
Russell McLelland Brown Lawyers (Respondents)
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): SC 1313/06
LOWER COURT JUDICIAL OFFICER: McLaughlin AsJ
LOWER COURT DATE OF DECISION: 19 May 2008





                          CA 40249/08
                          SC 1313/06

                          GILES JA
                          IPP JA
                          MACFARLAN JA

                          THURSDAY 4 JUNE 2009
GREAT WALL RESOURCES PTY LTD v O’SULLIVAN & ANOR
Judgment

1 GILES JA: I agree with Macfarlan JA.

2 IPP JA: I agree with Macfarlan JA.

3 MACFARLAN JA: By a contract of sale dated 13 June 2003, the appellant agreed to sell to the respondents certain land situated at Yallah on the South Coast of New South Wales. The land was part of a larger parcel of land being subdivided by the appellant. By the contract, the appellant warranted that a right of way affecting the land would be extinguished.

4 In proceedings between the appellant and the owners of the land entitled to the benefit of the right of way, Young CJ in Eq made orders on 21 November 2005 which included the following:

          “1. That immediately upon the Defendant/Cross Claimant Registering an easement, in favour of the Plaintiff/Cross Defendant, in the form annexed and marked ‘A’ to the Third Further Amended Cross Claim, over the “Property” (being Lot 10 in Deposited Plan 262279) then the easement presently recorded as a notification on the title of the Property (by reason of dealing number…
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Details
Case
[2009] NSWCA 119
Decision Date

CaseChat Overview and Summary

Great Wall Resources Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning the valuation of land. The dispute arose from a compulsory acquisition of land by the respondent, O'Sullivan, who was acting on behalf of the Roads and Traffic Authority. The primary judge had determined the compensation payable for the acquired land.

The central legal issues before the Court of Appeal were whether it should grant leave to adduce fresh evidence, specifically evidence of events occurring after the date of the trial, and whether the appeal itself was competent. The appellant sought to introduce evidence relating to the subsequent development and sale of adjoining land, arguing it was relevant to the valuation of the acquired land.

The Court of Appeal, comprising Giles JA, Ipp JA, and Macfarlan JA, dismissed the appeal as incompetent. The Court held that the appellant had not established that the primary judge had made any error of law or fact in the valuation. Furthermore, the Court refused leave to adduce fresh evidence, finding that the events occurring after the trial were not relevant to the determination of the compensation payable at the time of acquisition. The Court reasoned that the valuation should be based on the circumstances and knowledge available at the date of acquisition, not on subsequent developments.

Consequently, the Court dismissed the appellant's Notice of Motion and application for leave to appeal, ordering the appellant to pay the respondents' costs.

Orders

Orders of the court

(a) The appeal be dismissed as incompetent. (b) The appellant's Notice of Motion filed on 6 May 2009 be dismissed. (c) The appellant's application for leave to appeal be dismissed. (d) The appellant pay the respondents' costs of the purported appeal, the Notice of Motion and of the application for leave to appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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