LW & EBR Peeck & Sons Pty Ltd v Regional Growth NSW Development Corporation

[2023] NSWLEC 1617

Land and Environment Court

New South Wales

Medium Neutral Citation:

LW & EBR Peeck & Sons Pty Ltd v Regional Growth NSW Development Corporation [2023] NSWLEC 1617

Hearing dates:

Conciliation Conference on 5 October 2023

Date of orders:

19 October 2023

Decision date:

19 October 2023

Jurisdiction:

Class 3

Before:

Kempthorne AC

Decision:

The Court orders:

(1) In compensation for the compulsory acquisition by the Respondent on 5 August 2022 of Lot 25 in Deposited Plan 1228218 and Lot 26 in Deposited Plan 1228218, the Respondent will pay the Applicant the following amounts:

(a) $11,350,000 in market value pursuant to ss 55(a) and 56 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act); and

(b) $170,000 for legal costs and valuation fees, pursuant to ss 55(d) and 59(1)(a) and (b), of the Just Terms Act.

(2) The Applicant will complete and deliver to the Respondent the Deed of Release and Indemnity and Direction as to Payment (Forms) within 28 days of a sealed judgment

(3) The Respondent will pay the compensation referred to in Order (1) above, less any advance payment already made, plus statutory interest calculated in accordance with ss 49 and 50 of the Just Terms Act within 28 days of the Respondent receiving the duly completed Forms.

(4) The Respondent will pay the Applicant’s costs of the proceedings in the amount of $30,000 within 28 days of the Respondent receiving the duly completed Forms. There is to be no interest payable on costs of the proceedings.

Catchwords:

COMPULSORY ACQUISITION – objection to the amount of compensation offered by the respondent – conciliation conference – agreement between the parties – orders

Legislation Cited:

Land Acquisition (Just Terms Compensation) Act 1991, ss 49, 50, 55, 56, 59, 66

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

LW & EBR Peeck & Sons Pty Ltd (Applicant)
Regional Growth NSW Development Corporation (Respondent)

Representation:

Counsel:
P Tomasetti SC (Applicant)
M Astill (Respondent)

Solicitors:
Kent McRae (Applicant)
Norton Rose Fulbright Australia (Respondent)

File Number(s):

2023/198538

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 3 proceedings comprise an objection by LW & EBR Peeck & Sons Pty Ltd (the Applicant) to an offer of compensation arising from the compulsory acquisition by Regional Growth NSW Development Corporation (the Respondent) of Lot 25 in Deposited Plan 1228218 being the property known as 147 Dampier Street, Bomen NSW 2650 and Lot 26 in Deposited Plan 1228218 being the property known as 1178 Olympic Highway, Bomen NSW 2650 pursuant to the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act).

Jurisdiction Pre-requisites

2. The Valuer General of NSW (VG) on behalf of the Respondent assessed the total amount of compensation for the acquisition at $10,670,000.

3. The Applicant’s original claim filed in the Court set out the amounts of compensation as below:

Sections 55(a) and 56 Market Value of Lots 25 and 26

   $14,000,000.00

Sections 55(d) and 59 Disturbance

                                  $261,402.11

Total

                                                                                  $14,261,402.11

4. The Applicant’s Points of Claim filed in the Court set out the amounts of compensation as follows:

Sections 55(a) and 56 Market Value Lot 25

         $2,430,000.00

Sections 55 (a) and 56 Market Value Lot 26

        $13,840,000.00

Sections 55(d) and 59 Disturbance

                      $261,402.11

Total

  $16,531,402.11

5. The Respondent’s Points of Claim filed in the Court set out the amounts of compensation as follows:

Sections 55(a) and 56 Market Value Lot 25

         $2,050,000.00

Sections 55 (a) and 56 Market Value Lot 26

        $9,150,000.00

Sections 55(d) and 59 Disturbance

                      $61,187.50

Total

                                                                      $11,261,187.50

6. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties on 5 October 2023.

7. I presided over the conciliation conference.

Section 34 Agreement

8. During the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

9. The terms of the agreement reached by the parties are that:

1. In compensation for the compulsory acquisition by the Respondent on 5 August 2022 of Lot 25 in Deposited Plan 1228218 and Lot 26 in Deposited Plan 1228218, the Respondent will pay the Applicant the following amounts:

1. $11,350,000 in market value pursuant to ss 55(a) and 56 of the Just Terms Act, and

2. $170,000 for legal costs and valuation fees, pursuant to ss 55(d) and 59(1)(a) and (b) of the Just Terms Act.

2. The Applicant will complete and deliver to the Respondent the Deed of Release and Indemnity and Direction as to Payment (Forms) within 28 days of a sealed judgement.

3. The Respondent will pay the compensation referred to in paragraph (a) above, less any advance payment already made, plus statutory interest calculated in accordance with ss 49 and 50 of the Just Terms Act within 28 days of the Respondent receiving the duly completed Forms.

4. The Respondent will pay the Applicant’s costs of the proceedings in the amount of $30,000 within 28 days of the Respondent receiving the duly completed Forms. There is to be no interest payable on costs of the proceedings.

10. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the decision of the parties if it is a decision that the Court could have made in the proper exercise of its functions. The decision of the parties involves the Court exercising the functions pursuant to ss 66(1) and 66(2) of the Just Terms Act to hear and dispose of the Applicant’s claim for compensation.

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

12. As the decision of the parties 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 that decision.

Orders

13. The Court orders:

1. In compensation for the compulsory acquisition by the Respondent on 5 August 2022 of Lot 25 in Deposited Plan 1228218 and Lot 26 in Deposited Plan 1228218, the Respondent will pay the Applicant the following amounts:

1. $11,350,000 in market value pursuant to ss 55(a) and 56 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act); and

2. $170,000 for legal costs and valuation fees, pursuant to ss 55(d) and 59(1)(a) and (b), of the Just Terms Act.

2. The Applicant will complete and deliver to the Respondent the Deed of Release and Indemnity and Direction as to Payment (Forms) within 28 days of a sealed judgment

3. The Respondent will pay the compensation referred to in Order (1) above, less any advance payment already made, plus statutory interest calculated in accordance with ss 49 and 50 of the Just Terms Act within 28 days of the Respondent receiving the duly completed Forms.

4. The Respondent will pay the Applicant's costs of the proceedings in the amount of $30,000 within 28 days of the Respondent receiving the duly completed Forms. There is to be no interest payable on costs of the proceedings.

P Kempthorne

Acting Commissioner of the Court

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