Janchek v Transport for New South Wales

[2021] NSWLEC 1336

Land and Environment Court

New South Wales

Medium Neutral Citation:

Janchek v Transport for New South Wales [2021] NSWLEC 1336

Hearing dates:

Conciliation conference on 6, 12 and 19 May 2021

Date of orders:

09 June 2021

Decision date:

09 June 2021

Jurisdiction:

Class 1

Before:

Knight AC

Decision:

The Court orders:

(1) Compensation is determined in the sum of $2,050,000.00, pursuant to s 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act) for the acquisition of the whole of Lot 22 in Deposited Plan 421, being the land formerly known as 174 Victoria Road, Rozelle.

(2) The Applicants are to duly complete, execute and deliver to the Respondent the standard form deed of release and indemnity to be issued by the Respondent within 28 days of the final orders in these proceedings, with such deed to reflect these terms of agreement and provide for the subject matter of the proceedings being finalised on a full and final basis.

(3) Within 28 days of the Respondent receiving the Applicants' duly completed and executed deed of release and indemnity and direction as to payment, the Respondent will pay the Applicants:

(a) the Compensation less any advance compensation paid; and

(b) statutory interest in respect of the Compensation calculated in accordance with the Just Terms Act.

(4) The Respondent agrees to pay the Applicants' costs of the proceedings as agreed or assessed.

Catchwords:

COMPULSORY ACQUISITION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Land Acquisition (Just Terms Compensation) Act 1991, ss 43, 66

Land and Environment Court Act 1979, s34

Category:

Principal judgment

Parties:

Dimitri Janchek (First Applicant)
Wendy Ann Janchek (Second Applicant)
Transport for New South Wales (Respondent)

Representation:

Counsel:
C Ireland (Applicants)
A Hemmings (Respondent)

Solicitors:
Colquhoun & Colquhoun (Applicants)
Herbert Smith Freehills (Respondent)

File Number(s):

2020/308385

Publication restriction:

No

Judgment

1. COMMISSIONER: The proceedings comprise an objection to an offer of compensation in the amount of $1,433,204 arising from the compulsory acquisition by the Respondent of Lot 22 in Deposited Plan 421 being the land formerly known as 174 Victoria Road, Rozelle from the Applicants under s 43(d) of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act), with the Court required to determine the amount of compensation payable by the Respondent to the Applicant being within Class 3 of the Court’s jurisdiction.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 6, 12 and 19 May 2021. I presided over the conciliation conference.

3. At the conciliation conference the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Respondent agreeing to pay the Applicant compensation in the amount of $2,050,000.00 arising from the compulsory acquisition, plus the Applicants’ costs of the proceedings as agreed or assessed.

4. Under s 34 (3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under subss 66(1) and (2) of the Just Terms Act to hear and dispose of the Applicants’ claim for compensation.

5. I am satisfied that the parties’ decision is one the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

6. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

7. The Court orders that:

1. Compensation is determined in the sum of $2,050,000.00, pursuant to s 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act) for the acquisition of the whole of Lot 22 in Deposited Plan 421, being the land formerly known as 174 Victoria Road, Rozelle.

2. The Applicants are to duly complete, execute and deliver to the Respondent the standard form deed of release and indemnity to be issued by the Respondent within 28 days of the final orders in these proceedings, with such deed to reflect these terms of agreement and provide for the subject matter of the proceedings being finalised on a full and final basis.

3. Within 28 days of the Respondent receiving the Applicants' duly completed and executed deed of release and indemnity and direction as to payment, the Respondent will pay the Applicants:

1. the Compensation less any advance compensation paid; and

2. statutory interest in respect of the Compensation calculated in accordance with the Just Terms Act.

4. The Respondent agrees to pay the Applicants' costs of the proceedings as agreed or assessed.

…………………………

P Knight

Acting Commissioner of the Court

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Decision last updated: 09 June 2021