SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2010 0018
| THOMAS JAMES LOVE | Appellant |
| v | |
| ROADS CORPORATION | Respondent |
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| JUDGES | WARREN CJ, TATE JA and EMERTON AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 15 and 16 August 2011 |
| DATE OF JUDGMENT | 16 December 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 434 |
| JUDGMENT APPEALED FROM | Roads Corporation v Love [2010] VSC 32 (Osborn J) |
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LAND VALUATION AND COMPENSATION – Appellant’s land compulsorily acquired – Appellant claimed compensation for loss of land and loss of value caused to the balance of the remaining land – Claimed loss of market value, special value, severance or disturbance, and loss of amenity – Appellant claimed for loss of potential future use of land as landfill – Trial judge found low prospect of use of land for future use as a landfill site – Found highest and best use of the land was future industrial use – Compensation awarded – Whether trial judge erred in calculating the amount of compensation awarded – The highest and best use of the land – Correct test for severance applied – No disturbance claim raised on appeal – No special value in landfill potential – Land Acquisition and Compensation Act 1986 ss 40, 41, 89 Valuation of Land Act 1960 s 5A – Appeal dismissed
COSTS – Appeal from the trial judge’s award of costs – Discretion as to costs under s 91 of the Land Acquisition and Compensation Act 1986 (Vic) – Whether it was open to the trial judge to have regard to an offer made ‘without prejudice save as to costs’ – Whether conduct arising from the making of a ‘without prejudice’ offer is unreasonable conduct for the purposes of s 91(1)(b)(i) of the Land Acquisition and Compensation Act 1986 – Whether the letter was a Calderbank offer – Coastal Estates Pty Ltd v Bass Shire Council [1994] 1 VR 210 considered – Land Acquisition and Compensation Act 1986, s 91 – Supreme Court (General Civil Procedure) Rules 2005, O 26 – Leave to appeal granted – Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr G H Garde QC with Mr B L Reilly | McCluskys |
| For the Respondent | Mr J Delany SC with Mr S S Goubran | Garland Hawthorn Brahe |
WARREN CJ
TATE JA
EMERTON AJA:
The appeal
This appeal is a challenge by Mr Love to an award of compensation made by the trial judge[1] in respect of land that the Roads Corporation (‘the Corporation’) compulsorily acquired from him, pursuant to the Land Acquisition and Compensation Act 1986 (‘the Act’). Mr Love submits that, due to errors made by the trial judge, the awarded sum does not sufficiently compensate him for the acquisition. He seeks to have the award set aside and the matter remitted for rehearing and determination.
[1]Roads Corporation v Love [2010] VSC 32 (‘Reasons’).
Mr Love also seeks leave to appeal from the trial judge’s award of costs.[2]
[2]Roads Corporation v Love [2010] VSC 154 (‘Costs…
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- Case
- [2011] VSCA 434
- Decision Date
CaseChat Overview and Summary
The court considered the arguments and found that the trial judge had correctly applied the law in determining the compensation amount and the highest and best use of the land. The court held that there was no special value in the landfill potential and that the test for severance was correctly applied. Regarding the costs, the court determined that the trial judge could consider the 'without prejudice save as to costs' offer when exercising discretion under section 91 of the Land Acquisition and Compensation Act 1986. The court concluded that the conduct arising from the offer did not constitute unreasonable conduct for the purposes of section 91(1)(b)(i) of the Act. As a result, the appeal was dismissed.
Orders
Orders of the court
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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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