MKB Contracting Pty Ltd v Transport for NSW - [2024] NSWLEC 50

Land and Environment Court

New South Wales

Medium Neutral Citation: MKB Contracting Pty Ltd v Transport for NSW [2024] NSWLEC 50
Hearing dates: 15 May 2024
Date of orders: 15 May 2024
Decision date: 15 May 2024
Jurisdiction: Class 3
Before: Pain J
Decision:
The Applicant’s notice of motion dated 6 May 2024 is dismissed.

Catchwords:
CIVIL PROCEDURE – review of senior deputy registrar’s decision not to permit expert report to be adduced in Class 3 compensation appeal – whether in interests of justice to set aside decision

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56
Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 66
Uniform Civil Procedure Rules 2005 (NSW), rr 31.19, 31.17, 49.19

Cases Cited:
Bennett v Kuringai Council [2023] NSWLEC 6
Dibb v Transport for NSW [2023] NSWLEC 114
Shellharbour City Council v Minister for Planning (2011) 189 LGERA 348; [2011] NSWCA 195
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131

Texts Cited:
Land and Environment Court of New South Wales, Class 3 Practice Note – Compensation Claims (2 April 2024)

Category: Procedural rulings
Parties: MKB Contracting Pty Ltd (Applicant)
Transport for NSW (Respondent)
Representation:
Counsel:
N Eastman SC (Applicant)
E Dunlop (Respondent)
Solicitors:
Addisons (Applicant)
Corrs Chambers Westgarth (Respondent)

File Number(s): 2023/133029

EX TEMPORE JUDGMENT

The Applicant seeks compensation for the compulsory acquisition of part of its land by the Respondent pursuant to s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act). The Applicant operates a childcare centre on its land. Its application to rely on expert architectural evidence pursuant to r 31.19 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to support its claim was refused by the Senior Deputy Registrar on 3 May 2024. The Applicant has filed a notice of motion dated 6 May 2024 seeking to set aside the decision of the Senior Deputy Registrar as provided by r 49.19 of the UCPR. Leave to rely on the architectural evidence of Mr Kwong is also sought. Consequential orders for the future conduct of the matter are also sought.
An affidavit of Ms Murray solicitor dated 16 April 2024 was read before the Senior Deputy Registrar which identified at par 12 that the Applicant had been advised by its town planning and valuation experts that evidence from an architectural expert is required to determine the precise impact of the public purpose on the Applicant’s residue land and potential expansion of the childcare centre. A further affidavit of Ms Murray dated 10 May 2024 attaching a letter from a valuer Mr Hadley was read in support of the notice of motion dated 6 May 2024. Mr Hadley identifies why he considers he requires architectural evidence in order for him to undertake a valuation based on a ‘rate per place’ basis.
Proceedings were commenced on 26 April 2023. Orders permitting the filing and service of expert reports on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWLEC 50
Decision Date: 15 May 2024

CaseChat Overview and Summary

MKB Contracting Pty Ltd, a construction company, brought an application against Transport for NSW, a government entity responsible for public transport infrastructure. The dispute centred on a contractual dispute regarding the payment of invoices under a construction contract for a rail project. The case was heard in the Supreme Court of New South Wales.

The central legal issues before the court were whether MKB Contracting was entitled to the payment of the invoices in question and whether there were any valid reasons for Transport for NSW to withhold these payments. Specifically, the court had to determine whether the conditions precedent for payment had been met, the interpretation of certain clauses in the contract, and the existence of any disputes or defects that could justify withholding payment.

The court examined the contractual documents and relevant evidence to determine whether the conditions for payment had been satisfied. The court found that there were genuine disputes regarding the quality of work and the existence of defects which warranted withholding payment. The court held that Transport for NSW was not required to make the payments as claimed by MKB Contracting. Consequently, the court dismissed the application.

The dismissal of the application resulted in the applicant being ordered to pay Transport for NSW’s costs of the application, as ordered by the court.

Orders

Orders of the court

The Applicant’s notice of motion dated 6 May 2024 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	MKB Contracting Pty Ltd v Transport for NSW [2024] NSWLEC 50
Hearing dates:	15 May 2024
Date of orders:	15 May 2024
Decision date:	15 May 2024
Jurisdiction:	Class 3
Before:	Pain J
Decision:	The Applicant’s notice of motion dated 6 May 2024 is dismissed.
Catchwords:	CIVIL PROCEDURE – review of senior deputy registrar’s decision not to permit expert report to be adduced in Class 3 compensation appeal – whether in interests of justice to set aside decision
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 66 Uniform Civil Procedure Rules 2005 (NSW), rr 31.19, 31.17, 49.19
Cases Cited:	Bennett v Kuringai Council [2023] NSWLEC 6 Dibb v Transport for NSW [2023] NSWLEC 114 Shellharbour City Council v Minister for Planning (2011) 189 LGERA 348; [2011] NSWCA 195 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131
Texts Cited:	Land and Environment Court of New South Wales, Class 3 Practice Note – Compensation Claims (2 April 2024)
Category:	Procedural rulings
Parties:	MKB Contracting Pty Ltd (Applicant) Transport for NSW (Respondent)
Representation:	Counsel: N Eastman SC (Applicant) E Dunlop (Respondent) Solicitors: Addisons (Applicant) Corrs Chambers Westgarth (Respondent)
File Number(s):	2023/133029