Kritikos Developments Pty Ltd trading as Iron Duke Hotel (ABN 66 002 733 342) ACN 107827074 v Sydney Metro

[2019] NSWLEC 205

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kritikos Developments Pty Ltd trading as Iron Duke Hotel (ABN 66 002 733 342) ACN 107827074 v Sydney Metro [2019] NSWLEC 205
Hearing dates:	4 October 2019
Date of orders:	04 October 2019
Decision date:	04 October 2019
Jurisdiction:	Class 1
Before:	Moore J
Decision:	See orders at Annexure A
Catchwords:	APPLICATION FOR EXTENSION OF TIME - acquisition of subsurface stratum - Valuer-General determines nil entitlement to compensation - no challenge to nil entitlement to compensation for ~250 days - no direct explanation for delay - two reasons for delay able to be inferred - low threshold to be satisfied for granting extension - appropriate under the circumstance to grant extension
Legislation Cited:	Land Acquisition (Just Terms Compensation) Act 1991, s 66(3) Transport Administration Act 1988, Sch 6B
Cases Cited:	Landan Development Pty Ltd v Sydney Metro; Opera Australia v Sydney Metro; Altomonte Holdings Pty Ltd v Sydney Metro [2019] NSWLEC 65
Category:	Procedural and other rulings
Parties:	Kritikos Developments Pty Ltd trading as Iron Duke Hotel (ABN 66 002 733 342) ACN 107827074 (Applicant) Sydney Metro (Respondent)
Representation:	Counsel: Mr T Hale SC (Applicant) Mr L Waterson, barrister (Defendant)   Solicitors: Redenbach Lee Lawyers (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	251688 of 2019
Publication restriction:	No

EXTEMPORE JUDGMENT

1. HIS HONOUR: On Friday 20 September 2019, this Notice of Motion was filed on behalf of Kritikos Developments Pty Ltd trading as Iron Duke Hotel (Kritikos Developments) in Class 3 of the Court’s jurisdiction. The order that was sought in the Notice of Motion was an order that, pursuant to s 66(3) of the Land Acquisition (Just Terms Compensation) Act 1991 (the Land Acquisition Act), in effect, an extension of time be permitted to Kritikos Developments to commence proceedings to challenge a determination made by the Valuer-General that that Kritikos Developments’ entitlement to compensation under the Land Acquisition Act for market value or for disturbance for the acquisition of a tunnelling substratum underneath the surface of the land occupied by the Iron Duke Hotel was nil.

2. It is to be accepted that a very considerable period of time - in excess of 250 days - has elapsed since the Notice of Compensation was provided to Mr Kritikos, the sole director of Kritikos Developments that trades as the Iron Duke Hotel. No action was commenced to engage with the terms of the Land Acquisition Act until he became aware, in about February 2019, that there was a range of proceedings engaging the question of whether Sch 6B of the Transport Administration Act 1988 (the Transport Administration Act) acted to preclude compensation for the acquisition of such a substratum as has been acquired compulsorily under the hotel.

3. It is a consequence of Mr Kritikos seeking advice about those proceedings that these proceedings have now been commenced (or sought to be commenced) in light of a judgment given by me on 20 June 2019 (see Landan Development Pty Ltd v Sydney Metro; Opera Australia v Sydney Metro; Altomonte Holdings Pty Ltd v Sydney Metro [2019] NSWLEC 65), and the fact that there are ongoing preliminary interpretive proceedings as to the effect of Sch 6B of the Transport Administration Act and its exclusion of rights to compensation under the Land Acquisition Act for acquisition of such substratum.

4. Mr Kritikos does not expressly explain, or give reasons for why, he delayed between 15 March 2018, when he was advised that his entitlement to compensation for the acquisition of the substratum from Kritikos Developments was nil, and the steps that he took some 11 months or so later. However, as I raised with Mr Waterson of counsel for the acquiring authority this afternoon, there are two bases upon which I think it is reasonable to infer that there was sufficient cause - cause that is required as a consequence of s 66(3) of the Land Acquisition Act being engaged as the only permissible vehicle for an extension of time; and why inferences should be drawn that there is sufficient good cause at a low threshold for extension of time to be granted to the client represented by Mr Hale SC this afternoon.

5. First, as I put to Mr Waterson, the letter of 15 March 2018 from Transport for NSW addressed to Mr Kritikos had, as annexures to it, a number of documents, including the determination of compensation. The document is in the context of the peculiar and confined class of acquisitions that are substratum acquisitions to which Sch 6B of the Transport Administration Act applies and is infelicitously worded. It is not as if, as is conventionally the case in surface acquisitions, this is an instance where an offer of compensation by way of Valuer-General determination nominates an amount and there are (not unusually) proceedings about the adequacy of that amount. The notice in these terms does not explain adequately why the Valuer‑General has made that nil determination

6. Second, in the covering letter that forwarded those documents (having been signed by a Mr Gellibrand, the Acting Program Director of Sydney Metro), a paragraph appears on the second page of the letter which is almost in identical terms to the terms contained in Sch 6B(2)(i)(a), (b) and (c) and recites the necessary triggers for the potential for compensation to arise when a substratum is acquired. The leading into the setting out of those three very confined circumstances in Mr Gellibrand’s letters is as follows:

Generally, there is no compensation for the acquisition of land under the surface for the purposes of underground rail facilities unless, in accordance with the Transport Administration Act 1988 one of the following applies.

7. Then there are set out the matters that are contained, relevantly, in Sch 6B(2)(i) of the Transport Administration Act.

8. I am satisfied that it is sufficiently reasonable to infer that the combination of the various communications forwarded by Sydney Metro to Mr Kritikos would have engaged in his mind an understanding that he had no such entitlement to compensation.

9. Under the circumstances, it being a low threshold for good cause being shown for the purposes of s 66(3) of the Land Acquisition Act and in circumstances of the extremely limited range of cases where such substratum acquisitions are taking place, it is appropriate to grant the extension of time sought in the Applicant's Notice of Motion. I am going to invite Mr Hale to forward to my Associate the appropriate formal orders to give effect to that decision. I reserve the question of costs of today.

10. (Agreed terms of orders being handed up), I make the orders contained in the Short Minutes of Order signed by me today and placed on the file (see Annexure A).

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ANNEXURE A

Annexure A - Kritikos Developments v Sydney Metro - SMO- 4 Oct 19 (139 KB, pdf) Annexure A - Kritikos Developments v Sydney Metro - SMO- 4 Oct 19 (139 KB, pdf)

Decision last updated: 21 January 2020