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Moloney v Roads and Maritime Services

Moloney v Roads and Maritime Services

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Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Moloney v Roads and Maritime Services [2018] NSWCA 252
Hearing dates: 6-7 June 2018
Date of orders: 02 November 2018
Decision date: 02 November 2018
Before: Beazley P at [1], Basten JA at [2], Payne JA at [25]
Decision:
(1) Appeal dismissed.
(2) Appellants to pay the respondent’s costs as agreed or assessed.

Catchwords:
ENVIRONMENT AND PLANNING – acquisition of land – compensation – compensation awarded for market value including loss of amenity to main dwelling on residue land – whether claim for disturbance available for cost of relocation to replacement dwelling on residue land – relationship between heads of compensation for market value and disturbance – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55, 59
ENVIRONMENT AND PLANNING – acquisition of land – compensation – compensation awarded for market value including right to potential profits from acquired land – whether claim for disturbance available for loss of profits from acquired land – relationship between heads of compensation for market value and disturbance – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55, 59
Legislation Cited: Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 37, 54, 55, 56, 59, 61; Pt 3
Land and Environment Court Act 1979 (NSW), s 57
Roads Act 1993 (NSW)
Cases Cited: Almona Pty Ltd v Roads and Traffic Authority of NSW [2008] NSWLEC 112; (2008) LGERA 375
Brock v Roads and Maritime Services (formerly Roads and Traffic Authority of NSW) [2012] NSWCA 404; (2012) 191 LGERA 267
Gosford Shire Council v Green (1980) 48 LGRA 201
Harvey v Crawley Development Corporation [1957] 2 WLR 332
Health Administration Corporation v George D Angus Pty Ltd (2014) 88 NSWLR 752; [2014] NSWCA 352
Leichhardt Council v Roads and Traffic Authority (NSW) [2006] NSWCA 353; (2006) 149 LGERA 439
Marshall v Director-General, Department of Transport (2001) 205 CLR 603; [2001] HCA 37
McDonald v Roads & Traffic Authority (NSW) [2009] NSWLEC 105; 169 LGERA 352
Melino v Roads and Maritime Services [2018] NSWCA 251
Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of New South Wales [2006] NSWCA 314
Parfett v Roads and Maritime Services [2014] NSWLEC 1182
Roads and Maritime Services v Allandale Blue Metal Pty Ltd [2016] NSWCA 7
Roads and Traffic Authority (NSW) v McDonald (2010) 79 NSWLR 155; [2010] NSWCA 236
Roads and Traffic Authority (NSW) v Peak [2007] NSWCA 66
Roads and Traffic Authority (NSW) v Muir Properties Pty Ltd [2005] NSWCA 460; (2005) 143 LGERA 192
Tolson v Roads and Maritime Services [2014] NSWCA 161; (2014) 201 LGERA 367
Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5
Category: Principal judgment
Parties: John Brendan Moloney (First Appellant)
Colleen Patricia Moloney (Second Appellant)
Roads and Maritime Services (Respondent)
Representation:
Counsel:

Mr I Hemmings SC / Ms A Pearman (First and Second…

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: [2018] NSWCA 252
Decision Date: 02 November 2018

CaseChat Overview and Summary

The case of *Moloney v Roads and Maritime Services* concerned a dispute over compensation awarded for the compulsory acquisition of land by the Roads and Maritime Services. The appellants sought compensation for both the market value of the acquired land and for disturbance, specifically the costs associated with relocating to a replacement dwelling on their remaining land and for loss of potential profits from the acquired land. The matter was heard by Beazley P, Basten and Payne JJA in the Court of Appeal of New South Wales.

The primary legal issues before the court were whether the appellants were entitled to claim compensation for disturbance in addition to the market value of the acquired land, particularly concerning the costs of relocating to a replacement dwelling on the residue land and the loss of potential profits from the acquired land. These issues required the court to consider the relationship between the heads of compensation for market value and disturbance as provided for under the *Land Acquisition (Just Terms Compensation) Act 1991* (NSW), specifically sections 54, 55, and 59.

The Court of Appeal reasoned that compensation for disturbance is intended to cover losses that are not reflected in the market value of the acquired land. It held that where compensation for market value already includes an amount for the loss of amenity to the main dwelling on the residue land, a separate claim for the cost of relocation to a replacement dwelling on that same residue land would be duplicative. Similarly, the court found that if compensation for market value had accounted for the potential profits from the acquired land, a claim for disturbance based on the loss of those profits would also be impermissible as it would amount to double recovery. The court affirmed that the Act aims to provide just terms compensation, which requires careful consideration to avoid overcompensation.

The appeal was dismissed, and the appellants were ordered to pay the respondent’s costs.

Orders

Orders of the court

(1) Appeal dismissed.

(2) Appellants to pay the respondent’s costs as agreed or assessed.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Moloney v Roads and Maritime Services [2018] NSWCA 252
Hearing dates:	6-7 June 2018
Date of orders:	02 November 2018
Decision date:	02 November 2018
Before:	Beazley P at [1], Basten JA at [2], Payne JA at [25]
Decision:	(1) Appeal dismissed. (2) Appellants to pay the respondent’s costs as agreed or assessed.
Catchwords:	ENVIRONMENT AND PLANNING – acquisition of land – compensation – compensation awarded for market value including loss of amenity to main dwelling on residue land – whether claim for disturbance available for cost of relocation to replacement dwelling on residue land – relationship between heads of compensation for market value and disturbance – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55, 59 ENVIRONMENT AND PLANNING – acquisition of land – compensation – compensation awarded for market value including right to potential profits from acquired land – whether claim for disturbance available for loss of profits from acquired land – relationship between heads of compensation for market value and disturbance – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55, 59
Legislation Cited:	Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 37, 54, 55, 56, 59, 61; Pt 3 Land and Environment Court Act 1979 (NSW), s 57 Roads Act 1993 (NSW)
Cases Cited:	Almona Pty Ltd v Roads and Traffic Authority of NSW [2008] NSWLEC 112; (2008) LGERA 375 Brock v Roads and Maritime Services (formerly Roads and Traffic Authority of NSW) [2012] NSWCA 404; (2012) 191 LGERA 267 Gosford Shire Council v Green (1980) 48 LGRA 201 Harvey v Crawley Development Corporation [1957] 2 WLR 332 Health Administration Corporation v George D Angus Pty Ltd (2014) 88 NSWLR 752; [2014] NSWCA 352 Leichhardt Council v Roads and Traffic Authority (NSW) [2006] NSWCA 353; (2006) 149 LGERA 439 Marshall v Director-General, Department of Transport (2001) 205 CLR 603; [2001] HCA 37 McDonald v Roads & Traffic Authority (NSW) [2009] NSWLEC 105; 169 LGERA 352 Melino v Roads and Maritime Services [2018] NSWCA 251 Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of New South Wales [2006] NSWCA 314 Parfett v Roads and Maritime Services [2014] NSWLEC 1182 Roads and Maritime Services v Allandale Blue Metal Pty Ltd [2016] NSWCA 7 Roads and Traffic Authority (NSW) v McDonald (2010) 79 NSWLR 155; [2010] NSWCA 236 Roads and Traffic Authority (NSW) v Peak [2007] NSWCA 66 Roads and Traffic Authority (NSW) v Muir Properties Pty Ltd [2005] NSWCA 460; (2005) 143 LGERA 192 Tolson v Roads and Maritime Services [2014] NSWCA 161; (2014) 201 LGERA 367 Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5
Category:	Principal judgment
Parties:	John Brendan Moloney (First Appellant) Colleen Patricia Moloney (Second Appellant) Roads and Maritime Services (Respondent)
Representation:	Counsel: Mr I Hemmings SC / Ms A Pearman (First and Second…