Joyce v Health Administration Corporation

[2018] NSWSC 1679

Supreme Court

New South Wales

Medium Neutral Citation:

Joyce v Health Administration Corporation [2018] NSWSC 1679

Hearing dates:

30 October 2018

Date of orders:

30 October 2018

Decision date:

30 October 2018

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

(1) The notice of motion filed 26 October 2018 is dismissed.
(2) The plaintiffs are to pay the defendants’ costs of the notice of motion.
(3) The costs that the plaintiffs are to pay the defendants of the notice of motion are to be assessed on an indemnity basis.

Catchwords:

ADMINISTRATIVE LAW – judicial review – NSW Ministers for Health and for Finance – application for review of decisions to abridge notice period for compulsory acquisition of land from 90 to 30 days – Land Acquisition (Just Terms Compensation Act 1991 (NSW), s 13 – proposed acquisition notice with abridged notice period served – interlocutory injunction sought against Gazettal of compulsory acquisition notice – whether triable issue as to jurisdictional error

 

LAND LAW – compulsory acquisition of land – procedure for acquisition – notice to owners – review of administrative decisions to abridge notice period – notice served – interlocutory injunction sought against Gazettal of compulsory acquisition notice – land proposed to be compulsorily acquired by Health Administration Corporation for construction of hospital – where bona fide negotiations with owners continued for at least eight months – where negotiations unsuccessful – where perceived urgency for construction of new hospital facilities for provisions of healthcare to locality – whether triable issues – whether balance of convenience favours interlocutory relief – application refused

  COSTS – party/party – costs orders in interlocutory proceedings – costs of notice of motion sought on indemnity basis – whether balance of convenience overwhelmingly in favour of refusing application – whether interlocutory injunction application was doomed to fail – whether offers previously made would have given plaintiffs substantially the benefit sought through injunction – indemnity costs ordered

Legislation Cited:

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

Cases Cited:

Minister Administering the Environmental Planning and Assessment Act 1979 v Hamilton (1983) 50 LGRA 180

Texts Cited:

N/A

Category:

Procedural and other rulings

Parties:

Duane John Joyce (first plaintiff)
Kerry Douglas Prichard (second plaintiff)
Health Administration Corporation (first defendant)
Brad Hazzard, Minister for Health (second defendant)
Victor Dominello, Minister for Finance Services and Property (third defendant)

Representation:

Counsel:
Mr C Ireland (plaintiffs)
Ms N Sharp SC & Mr H Grace (defendants)

  Solicitors:
Colin Biggers & Paisley (plaintiffs)
Herbert Smith Freehills (defendants)

File Number(s):

2018/329307

Publication restriction:

No

Judgment (EX TEMPORE, REVISED)

1. HIS HONOUR: The plaintiffs are the registered proprietors of Lot 102 in Deposited Plan 870722, being rural property at 771 Cudgen Road, Cudgen in New South Wales. This land has, since the second half of 2017, been subject to processes for compulsory acquisition by an authority of the State under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) ("the Act"). The relevant authority is the Health Administration Corporation ("HAC").

2. By summons filed 26 October 2018, and then by an amended summons filed in court by leave on 30 October 2018, the plaintiffs seek judicial review of administrative decisions of the Minister for Health and the Minister for Finance in connection with the compulsory acquisition process. By notice of motion filed on 26 October 2018 the plaintiffs also seek an interlocutory injunction to restrain the HAC from publishing a notice in the New South Wales Gazette under s 19 of the Act to the effect that part of Lot 102 has been acquired by compulsory process. It is sought that this injunction continue until the summons for judicial review has been finally determined. The Ministerial decisions in respect of which judicial review is applied for concerned the shortening of a negotiation period and of a notice period which are part of the statutory process for compulsory acquisition of land for public purposes.

3. The plaintiffs received notice by letter of 25 September 2018 that the HAC intends to publish in the Gazette a notice of compulsory acquisition on or after 31 October 2018 if agreement should not be reached by that date regarding terms of acquisition. The Court has been informed today that it is now proposed to publish the notice of acquisition under s 19 in the Gazette on Friday 2 November 2018. The notice of motion seeks, in addition to restraint upon the HAC against publishing this notice, an order that the HAC should instruct those responsible for issuing the Gazette to withhold publication.

4. It is necessary to set out some background and narrative of the compulsory acquisition process which has been undertaken with respect to this land before referring to the sections of the Act under which the issues relevant to the summons and the notice of motion arise.

5. About August 2017 the HAC issued an invitation to owners of land in the general vicinity of Tweed Heads to express interest to the HAC with respect to the sale of land for the construction of a new public hospital to service the Tweed Valley. Soon after this the plaintiffs indicated their interest in selling Lot 102. The HAC evaluated the plaintiffs' property and deemed it potentially suitable. That state of affairs was reached by early December 2017. The plaintiffs’ land comprises about 23 hectares, approximately 19.38 hectares of which is cleared and in use as farm land. The remaining 3.83 hectares is heavily vegetated and undeveloped.

6. The plaintiffs had, before 8 December 2017, indicated to the HAC their willingness to sell part of the land as an alternative to selling the whole of it. They had suggested to the HAC a price of $1.6 million per hectare, which was well in excess of the HAC's concept of value at about $150,000 per hectare. The HAC resolved, as at 8 December 2017, to approach the plaintiffs to ascertain whether they had formed any current view on price.

7. On 5 February 2018 negotiations took place between the plaintiffs and HAC representatives. The HAC personnel indicated an understanding of value of the entirety of Lot 102 at $2.5 million to $3 million. The plaintiffs said they would require a price "in the early $30 millions".

8. Further negotiations took place on 13 March 2018, during which the plaintiffs made reference to comparable sales in the area and indicated their understanding of valuation principles. During this negotiation the plaintiffs confirmed "they had no intention of revising their asking price below $30 million so it was not worth wasting time" with a letter from HAC to invite a reduced asking price. The plaintiffs said they were prepared to sit on the land "for 10 to 20 years" until surrounding land near the site should be rezoned.

9. On 3 April 2018 the HAC wrote to the plaintiffs to confirm that Lot 102 was its preferred site for the new hospital project. The letter included these passages:

As the [expression of interest] process and subsequent discussions with you were unsuccessful in reaching an agreement on the terms of the acquisition of the property, Health Infrastructure now proposes to commence negotiations to acquire the property under the provisions of the Land Acquisition (Just Terms Compensation) Act 1991.

We will be seeking to negotiate the terms of the acquisition of the property from you over the next six months.

It is our hope that by reference to the provisions of the Act we will be able to reach an agreement with you in that six month time frame.

If we are unable to reach an agreement with you by 3 October 2018, we will issue you with a proposed acquisition notice under the Act in order to meet the construction time frame for the project.

10. The six month period referred to in this letter was no doubt a reference to s 10A of the Act, which is in the following terms:

10A Minimum period of negotiation for acquisition by agreement before initiation of compulsory acquisition process

(1) This section applies to land that is affected by a proposal for acquisition by an authority of the State, other than a proposal to acquire:

(a) Crown land, or

(b) an easement, or right to use land, under the surface for the construction or maintenance of works, or

(c) a stratum under the surface for the construction of a tunnel.

(2) The authority of the State is to make a genuine attempt to acquire the land by agreement for at least 6 months before giving a proposed acquisition notice.

(3) The owner of the land and the authority of the State may agree to a shorter or longer period of negotiation for the acquisition of the land by agreement.

(4) The Minister responsible for the authority of the State may approve a shorter period of negotiation, but only if the Minister is satisfied that the urgency of the matter or other circumstances of the case make it impracticable to have any longer period of negotiation. Any such approval requires the concurrence of the Minister administering this Act (being concurrence given for the particular approval or given generally for an approval of that kind).

(5) This section does not prevent a continuation of negotiation after the giving of a proposed acquisition notice.

(6) The authority of the State is not required to comply with this section if:

(a) the owner of the land notifies the authority that the owner is not prepared to negotiate with the authority for the acquisition of the land by agreement, or

(b) the owner of the land cannot be located after the making of reasonable inquiries.

(7) Nothing in this section gives rise to, or can be taken into account in, any civil cause of action.

11. There is no prescribed form or other statutory prerequisite for the commencement of the six month period referred to in subs (2) of s 10A. The documents tendered on this application strongly indicate that a genuine attempt was made by HAC to negotiate a mutually acceptable price to acquire the land by agreement over the period commencing 8 December 2017 and continuing through to about 18 September 2018. This was an attempt to agree upon acquisition of either the whole of Lot 102 or part of it. As to the alternative of acquiring part of the land, identification of the part was an open aspect of the negotiations over the period from 8 December 2017.

12. Although the HAC’s letter of 3 April 2018 envisaged that the six month period would commence from its date, there is no evidence in the material before the Court to indicate that the plaintiffs in any material way relied upon that to their detriment so as to estop the HAC from contending that in fact a genuine attempt to purchase the land by agreement had been commenced in a manner sufficient to satisfy the requirements of s 10A several months before 3 April 2018.

13. After the letter of 3 April 2018 had been written, negotiations continued. On 20 July 2018 the HAC sought early access to the property for the purpose of carrying out geotechnical sub-soil testing to gather data which would be an essential part of the process of designing the hospital. The plaintiffs have never agreed to allow access for that purpose. They have refused such access notwithstanding offers from the HAC from time to time during the negotiation period of a non-refundable advance payment in the order of $3 million and offers of periodic payments by way of licence fee.

14. On 2 August 2018 a formal offer was made by the HAC of $4,757,500 for Lot 102. By this letter it was proposed that settlement should take place on 16 November 2018. The offer was not accepted. On 14 August 2018 the HAC made an alternative offer to acquire only part of the land, namely, that which substantially comprised the cleared and farmed portion. A draft development plan for sub-division was attached to this alternative offer. The draft plan proposed the sub-division of Lot 102 into Lot 11, comprising 19.4 hectares, being the cleared area, and Lot 12, comprising the smaller heavily vegetated area of 3.84 hectares. HAC offered to acquire Lot 11, only, for $3,827,500. The letter stated HAC's understanding that the plaintiffs wished HAC to consider the compulsory acquisition of only part of the land. The letter also made clear that either its offer of 2 August 2018 to purchase the whole of Lot 102, or the offer of 14 August 2018 for just Lot 11, could be accepted.

15. On 27 August 2018 the plaintiffs responded, through their solicitors, with a statement they were “prepared to advance the acquisition of the property on the following terms and conditions". This was followed by a calculation in which 18.5 hectares of the property were attributed a proposed price of $750,000 per hectare, excluding GST. Various other components were then added on, including GST, for a total price of $15,306,500.

16. This letter sought a non-refundable advance of $12,523,500. It was subject to exchange of formal contract documents. The letter stated that the offer was for acquisition of the entirety of the property, both the proposed Lots 11 and 12 in the HAC's letter of 14 August 2018. The letter concluded by stating that:

A suggestion to acquire simply Lot 11, leaving a small residue Lot, is untenable to our clients.

17. By letter of 18 September 2018 from the plaintiffs' solicitors to the HAC, the plaintiffs rejected the possibility of any further meeting to discuss or negotiate the acquisition. This letter stated that the plaintiffs were awaiting information regarding the sale of what they referred to as "the adjoining property". The letter stated that they were also awaiting information concerning "the basis for its sale price". From this and earlier letters, it does not appear that any such sale had been concluded by 18 September 2018 or that such information was available or that it would be available in the future or, if so, when it might be available. The letter stated that the plaintiffs were:

unable to advance a further meeting to discuss the current disparity between the offer by NSW Health to acquire their land and the offers made most recently by our client.

When further information as to this [other] sale is available (and [the plaintiffs] are pressing for more details) we will endeavour to make this information available to all parties for further consideration to assist the negotiation. Accordingly the suggestion of a meeting remains premature.

18. Up to this point, the HAC had included its valuer, Mr Tew, in at least one negotiating meeting. He had provided his valuation report dated 11 July 2018 to the HAC. He had valued Lot 102 at $4,730,000. There is no evidence before me that his valuation was provided to the plaintiffs. The plaintiffs deny having received it. However, they have received Mr Tew’s valuation as part of the evidence in these proceedings. So far as the evidence shows, the plaintiffs have never sought or obtained an independent valuation from any qualified valuer themselves. If they have obtained one, the evidence does not disclose that they have provided it to the HAC.

19. In all of this evidence I find not the slightest hint of any arguable case for the plaintiffs that the HAC has conducted its negotiations with the plaintiffs other than genuinely and in good faith from at least 8 December 2017.

20. In early September 2018, officers of the Department of Health prepared a recommendation to the Minister that he should approve shortening the negotiation period pursuant to s 10A(4) from six months to five months. The purpose of this was said to be to enable the Minister to issue a proposed acquisition notice under s 13. Section 13 provides as follows:

13 Minimum period of notice

(1) A proposed acquisition notice must be given at least 90 days before the land is compulsorily acquired.

(2) A shorter period of notice may be given if:

(a) the authority of the State and the owners of the land agree in writing to the shorter period, or

(b) the Minister responsible for that authority approves of the shorter period, but only if that Minister is satisfied that the urgency of the matter or other circumstances of the case make it impracticable to give any longer period of notice.

(3) The approval of a shorter period of notice under subsection (2) (b) requires the concurrence of the Minister administering this Act (being a concurrence given for the particular approval or given generally for an approval of that kind).

21. Once a proposed acquisition notice has been given to the land owner, the State is required as soon as possible either to acquire the land compulsorily or to withdraw the proposed acquisition notice (see s 14(1)). If the State is to proceed with acquisition, it does so by Gazetting notice thereof under s 19. Relevant parts of ss 14 and 19 are in these terms:

14 Compulsory acquisition to be completed as soon as practicable

(1) As soon as practicable after the expiration of the minimum period of notice of a proposed compulsory acquisition, the authority of the State must:

(a) acquire the land by compulsory process or by agreement, or

(b) withdraw the proposed acquisition notice.

…

19 Compulsory acquisition by notice in Gazette

(1) An authority of the State that is authorised to acquire land by compulsory process may, with the approval of the Governor, declare, by notice published in the Gazette, that any land described in the notice is acquired by compulsory process.

(2) A copy of the acquisition notice is, if practicable, to be published:

(a) in at least one newspaper circulating in the district in which the land is situated (whether published in print or on a website), or

(b) on at least one website that, in the opinion of the authority, is appropriate to cause the notice to come to the attention of persons in the district in which the land concerned is situated.

(3) An acquisition notice may relate to part only of the land described in the relevant proposed acquisition notice.

22. On the evidence tendered on this application I find no prima facie or arguable case that shortening the six month negotiating period under s 10A(2) and (4) was actually necessary. By early September 2018, on the evidence presented in this Court, there had been at least eight months of genuine negotiations.

23. Shortly after early September 2018, namely, on the 18th, it was apparent to the HAC that negotiations had come to an end because the plaintiffs declined to meet to discuss the difference between the parties any further until they had additional information at an indefinite time in the future. There could be no assurance from this communication that, even when that further information was available, it would assist to close the gap between about $15 million and about $4 million.

24. The gap itself was strongly demonstrative of an unsuccessful conclusion to negotiations. After such a protracted period, this differential between the parties could reasonably be inferred to mark the end of the period of potentially constructive discussion.

25. The memorandum to the Minister for Health of early September 2018 referred to in [20] above also recommended that the 90 day notice period under s 13 of the Act should be shortened to 30 days. The urgency which was propounded in this recommendation, with a view to satisfying the Minister of the requirements of subs (2)(b) of s 13, concerned both the needs of the Tweed Valley community for a new hospital and also the lead times and constraints concerning obtaining site information, preparing construction plans and commencing the works.

26. On 7 September 2018 the Minister for Health accepted the recommendation and approved the shortening of the negotiation period from six months to five months, which, as I have said, appears on the evidence to have been an unnecessary step. The Minister also approved the reduction of the notice period under s 13(1) from 90 days to 30 days. Once the Minister for Health's approval of these recommendations had been obtained, the concurrence of the Minister for Finance had to be sought. It appears that the request to that Minister for concurrence had been prepared and approved by Departmental officers by about 14 September 2018. The concurrence of the Minister for Finance was obtained with his signature affixed on 20 September 2018. Pursuant to the Ministers’ decisions the HAC on 25 September 2018 gave the plaintiffs 30 days’ notice of intention to publish a notice of compulsory acquisition.

22. The plaintiffs have sought to demonstrate that there exist triable issues as to whether the Minister for Health and the Minister for Finance made reviewable administrative law errors in approving the abridgements of time under the Act. Having regard to the view that I take of s 10A, that shortening the six moth negotiation period was unnecessary, I will consider only the case with respect to alleged errors in the Ministers’ abridgement of the 90 day notice period to 30 days under s 13.

23. I do not see any clearly arguable error of law or other jurisdictional error in the decision of either Minister with respect to making this reduction in the statutory period of notice. The jurisdictional prerequisite under s 13(2)(b) and s 13(3) was that each Minister should be satisfied that the urgency of the matter made it impractical to allow more than the abridged period of 30 days. Ample basis for being so satisfied was provided in the briefing notes to each Minister. Their endorsement of their respective briefing documents, wherein the statutory texts were correctly set out, shows that they were satisfied according to the applicable criteria. The pressure of time under which the Court must determine this application for an interlocutory injunction does not permit that I should recite in these reasons all the putative errors argued by the plaintiff and all the defendant's responses. The question of whether an injunction should be granted can in this case be decided upon the balance of convenience, which I regard as clear.

24. If the interlocutory injunction sought by the plaintiffs is not granted under their notice of motion, they will be divested of title to the proposed Lot 11 in the sub-division of Lot 102 upon the acquisition notice being Gazetted. For the purposes of the argument I will assume, without having had an opportunity to research the point carefully, that Minister Administering the Environmental Planning and Assessment Act 1979 v Hamilton (1983) 50 LGRA 180 is authority for the proposition which the plaintiffs' counsel submits. He has argued that should the acquisition notice be Gazetted and vesting of title in the State take place, then if, at a subsequent final hearing of the plaintiffs' summons, administrative law error should be established and should the Court decide that the proposed acquisition notice was not lawfully issued and should be set aside, they would not be able to reverse the vesting of title in order to recover ownership of their property.

25. After the concurrence of the Finance Minister had been obtained on 20 September 2018, the proposed acquisition notice was sent to the plaintiff on 25 September, as referred to at [1] and [26] above. The notice advised the plaintiffs that a shortened negotiation period and a shortened period for the proposed acquisition notice had been approved in accordance with the requirements of the Act. The letter of 25 September 2018 stated HAC's preference to reach agreement with the plaintiffs to acquire either the whole or part of the property in accordance with offers previously made and gave assurance of a willingness to continue genuine attempts to reach a satisfactory agreement prior to the date of compulsory acquisition. The letter warned, however, that if agreement could not be reached by 31 October, an acquisition notice to acquire the proposed Lot 11 would be published and that that part of the plaintiffs' property would vest in the State.

26. Assuming that upon publication of this notice the plaintiffs will be divested of title and would not be able to reverse the divestiture, even if they should subsequently litigate their summons on a final basis and prove error (perhaps even that the proposed acquisition notice of 25 September 2018 was void) nevertheless the plaintiffs will retain their right to pursue just compensation for the acquisition, in accordance with the Act.

27. Section 41 has the effect that within seven days after the HAC has compulsorily acquired the land it must provide the Valuer General with a list of issues that the HAC believes are relevant to determination by the Valuer General of the amount of compensation. The Valuer General must then determine the amount of compensation to be offered to the former owners. Section 42 provides that the HAC, within forty-five days after it has published the acquisition notice and thereby effected vesting of the land, must give the former owners written notice of the compulsory acquisition, of their entitlement to compensation and of the amount of compensation which is offered as determined by the Valuer General.

28. Without referring to the sections in detail I note that they provide ultimately for just compensation to be determined in a proceeding in the Land and Environment Court if objection is taken to the Valuer General's sum and not otherwise resolved.

29. The plaintiffs' position in relation to this land involves no special consideration which would give rise to a grave injustice if the acquisition proceeds according to Gazettal of the acquisition notice as proposed by the HAC. The plaintiffs do not live on the property. They have no personal or historical attachment to it. They have made explicit in their negotiations with the HAC that they have held the property and wish to continue holding it as a speculation with respect to rezoning and rising value.

30. Even if the acquisition should be deferred by injunction against Gazettal of the acquisition notice, it is only a matter of time before the plaintiffs will be in exactly the same position. That is, if the publication of this notice should be injuncted and thereafter there should be a final hearing of the summons with a determination that the shortening of time was ineffective and the steps required under the Act had not been taken, then it would only be a matter of weeks, at most months, before the full unabridged times provided for under the Act could be complied with and an effective proposed acquisition notice served and published in the Gazette. That would lead to divestment of title, albeit later than will be the case if the injunction is now refused. In short, the process of compulsory acquisition by the HAC is inexorable.

31. It appears from all the material disclosed to the Court on this application that the only purpose of the plaintiffs in seeking to hold the HAC to a longer period of negotiation and to hold the period of notice under s 13 at 90 days, is to maximise the time lag within which another sale in the locality might be concluded which might constitute useful evidence with respect to valuation.

32. However, it is accepted by both parties that if there should be such a sale in the locality after the acquisition has been effected by Gazettal of the notice, it may be taken into account in valuation, either by the Valuer General or by the Land and Environment Court. That is subject to allowance being made for the distance in time between the date of acquisition and the date of the subsequent comparable sale.

33. This possible differential in the plaintiffs’ position as between where they will stand if the acquisition notice is Gazetted either tomorrow or this week, and where they would stand if they should have the proposed acquisition notice set aside and have acquisition deferred to a later date, is minimal and ephemeral.

34. On the other hand, the State would suffer very significant detriment if the interlocutory injunction should be granted, in particular if it should subsequently appear on final hearing of the summons that the procedures of the Act were properly followed without reviewable error.

35. As the documents before the Court amply demonstrate, the HAC has evaluated an urgent need to proceed with this project in order to make additional hospital beds available in the Tweed Valley. The information upon which the HAC has acted has caused it to conclude and to report in the course of its processes that present hospital facilities in that area are over-strained, that population growth has outstripped the capacity of those facilities and that a delay with respect to the advancement of this new hospital will cause significant deficit in the capacity of the Health Department to deliver health services to the public.

36. Further, the HAC has concluded that the lead times for gathering geotechnical information on the site and for preparing plans of the hospital development are such that any deferral of access to the site will correspondingly defer commencement of work. In the course of negotiations the HAC has repeatedly sought from the plaintiffs their agreement to access the site in order to relieve pressure of time on the HAC with respect to Gazetting the acquisition notice and obtaining title. If the HAC was able to gain access to carry out its subsurface geotechnical examinations, its need to acquire title could be to some degree deferred. It has offered this more than once but the plaintiffs have not agreed. Such offers have been made with the inclusion of substantial non-refundable down payments on the ultimate acquisition price.

37. In all of these circumstances, I consider that the prospects of the plaintiffs on final hearing of the summons of demonstrating administrative law error are relatively slight and the putative arguable issues are not clearly, or at least not demonstrably, in their favour. I have not elaborated my reasons for that conclusion in arriving at my determination as to how to resolve the notice of motion because on the question of balance of convenience I consider that the overwhelming balance is in favour of refusing the interlocutory injunction, allowing the acquisition to proceed and leaving the plaintiffs to pursue their entitlements to compensation in accordance with the Act and ultimately by recourse to the Land and Environment Court if need be.

38. For those reasons:

1. The notice of motion filed 26 October 2018 is dismissed.

2. The plaintiffs are to pay the defendants’ costs of the notice of motion.

44. The defendant seeks its costs of the notice of motion on an indemnity basis. This is advanced upon the argument that the balance of convenience against granting the interlocutory injunctions was always overwhelmingly in favour of refusing the injunction and that to seek an injunction in these circumstances was, in effect, to proceed with an application which was doomed to fail.

45. The defendant also argues that it had made offers which would have given the plaintiffs substantially the benefit that they sought by pursuing the injunction. This is a reference to two alternative offers that were made by the HAC. One of them was that, notwithstanding the proposed acquisition notice served on 25 September 2018 and expiring in late October, the HAC would not cause Gazettal of an acquisition notice until about mid-November 2018 provided that the plaintiffs would in the meantime allow the HAC access to the land to carry out their geotechnical examinations so that the matter of real urgency from the HAC’s point of view could be addressed.

46. The alternative offer was that if the acquisition notice was published in late October 2018, nevertheless the time prescribed in s 42 of forty-five days could be extended, so that although the land would vest in the HAC upon Gazettal of the acquisition notice, there would be a longer time frame within which the value of the property (and hence the amount of compensation) would be ascertained.

47. The purpose and value of each of these offers was that, in either form, the HAC was offering that some further time could go by within which the possible further comparable sale of property near to the subject property might be completed, or at least a contract entered into. Hence, within the extended times allowed, there might come into the hands of the plaintiffs the additional evidence which they were holding out for to enhance their claim for value.

48. Both of these offers were conciliatory and of value to the plaintiffs. Either of them, if accepted, would have given the plaintiffs the advantage that they themselves declared they wished to obtain (of obtaining data on this additional sale), whilst at the same time accommodating the HAC's urgency with respect to gaining access to the land.

49. In circumstances where the balance of convenience was so heavily weighted against the plaintiffs on their application for an interlocutory injunction, the application ought not to have been made. The circumstance that offers were made to accommodate the plaintiffs' wishes and to give them the advantage they sought further supports the proposition that an interlocutory injunction should not have been sought.

50. It appears to me, on all the material that has been presented on this application, that the HAC has done everything within its power reasonably to progress negotiations in a sensible way, to provide alternatives to the plaintiffs with respect to acquisition to try to suit their wishes and to accommodate their desire to obtain information which would bear upon value, all so far as the HAC possibly could do whilst still fulfilling its duties to the public to try to advance this project.

51. The HAC has, as it appears to me on all of this information, acted in every respect bona fide and genuinely to give the plaintiffs a fair opportunity to obtain proper compensation by way of an agreement and without resort to the compulsory acquisition process or litigation in the Land and Environment Court.

52. Against that, the plaintiffs' position has been obdurate in negotiation and unreasonable in declining offers that were made, such as those that I have just mentioned. It may yet be shown that the plaintiffs’ holding out for compensation in the order of $15 million is justified. If they cannot reach agreement with the HAC following the completion of the resumption process and if the matter is litigated in the Land and Environment Court, for all I know they may persuade that Court that a proper resumption price is $15 million. But what the Court is concerned with here is the process of bringing this to a head and to resolution by due process under the Act. In that respect the application for an interlocutory injunction on this notice of motion has been, in my view, totally unproductive and unwarranted in the face of odds heavily set against it and in the face of reasonable offers to accommodate the interests of all parties.

53. For those reasons I further order:

1. The costs that the plaintiffs are to pay the defendants of the notice of motion are to be assessed on an indemnity basis.

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Decision last updated: 05 November 2018