Mitchell v Transport for New South Wales

[2020] NSWLEC 1337

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mitchell v Transport for New South Wales [2020] NSWLEC 1337

Hearing dates:

Conciliation conference on 27 July 2020

Date of orders:

31 July 2020

Decision date:

31 July 2020

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

See orders at [7] below.

Catchwords:

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

Legislation Cited:

Land Acquisition (Just Terms Compensation) Act 1991

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Justin Shane Mitchell (First Applicant)
Natalie Jean Collins (Second Applicant)
Transport for New South Wales (Respondent)

Representation:

Counsel:
L Nurpuri (Applicants)
B Tronson (Respondent)

Solicitors:
FM Legal Pty Ltd (Applicants)
Hunt & Hunt (Respondent)

File Number(s):

2020/149102

Publication restriction:

No

Judgment

1. COMMISSIONER: The proceedings comprise an objection to an offer of compensation on 21 February 2020 in the amount of $588,581.00 arising from compulsory acquisition by the Respondent of Lot 2 in DP 13492, being the whole of the land at 3 Illaroo Road, North Nowra, from the Applicants under s 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (the Act), with the Court required to determine the amount of compensation payable by the Respondent to the Applicants 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 27 July 2020. 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 Applicants the following amounts of compensation under the Act arising from the compulsory acquisition: Total compensation of $694,000.00 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 s 66(1) and (2) of the Act to hear and dispose of the Applicants’ claim for compensation.

5. I am satisfied that the parties’ decision 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.

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 $694,000.00, pursuant to section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (Act), for the acquisition of Lot 2 in Deposited Plan 13492, being the whole of the land in Certificate of Title 2/13492 being known as 3 Illaroo Road, North Nowra.

2. The Respondent is to pay the Applicants the amount of compensation referred to in Order (1), less any advance already paid, plus statutory interest on the balance of compensation calculated in accordance with sections 49 and 50 of the Act.

3. Within 28 days of the later of:

1. the date the Court issues its orders; and

2. the date on which the Respondent receives a duly executed deed of release and indemnity and direction as to payment from the Applicants,

the Respondent is to pay the Applicants the amount of compensation referred to in Order (1).

4. The Respondent has agreed to pay the Applicants’ reasonable costs as agreed or assessed subject to the production of invoices and receipts. There is to be no interest payable on costs.

Notations:

1. Save for the costs agreed in Order (4) of these orders the sum of $529,722.90 plus statutory interest has already been paid to the Applicants leaving $164,277.10 remainder (the Remainder) to be paid; and

2. Statutory interest pursuant to sections 49 and 50 of the Act is payable on the Remainder.

…………………………

S Dixon

Senior Commissioner of the Court

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Decision last updated: 31 July 2020