Nasser v Roads and Traffic Authority (NSW) - [2006] NSWLEC 562

Reported Decision: (2006) 149 LGERA 289

Land and Environment Court

of New South Wales

CITATION: Nasser v Roads and Traffic Authority; Millstar Holdings Pty Limited v Roads and Traffic Authority (No 3) [2006] NSWLEC 562

PARTIES: APPLICANTS
Fred Nasser
Michael Nasser
George Nasser
Millstar Holdings Pty Ltd
RESPONDENT
Roads and Traffic Authority

FILE NUMBER(S): 30162 of 2003; 30163 of 2003

CORAM: Pain J

KEY ISSUES: Compulsory Acquisition of Land :- disturbance - whether stamp duty and legal costs for acquisition of replacement property claimable
Costs

LEGISLATION CITED: Land Acquisition (Just Terms Compensation) Act 1991 s59, s61

CASES CITED: Bezzina Developers Pty Limited v Leichhardt Municipal Council [2006] NSWLEC 175 ;
Blacktown City Council v Fitzpatrick Investments Pty Ltd [2001] NSWCA 259 ;
Constantino v Roads and Traffic Authority of New South Wales (No 2) (2005) 144 LGERA 224;
Damjanovic & Anor v Roads and Traffic Authority (No 2) (2005) NSWLEC 371;
Fitzpatrick Investments Pty Ltd v Blacktown City Council NSWLEC, Lloyd J, 28 April 1998, unreported;
Fitzpatrick Investments Pty Ltd v Blacktown City Council (No 2) [2000] NSWLEC 139 ;
Horton v Wyong Shire Council (No 2) [2005] NSWLEC 45;
Maggiotto v Roads and Traffic Authority [2006] NSWLEC 54 ;
Nasser v Roads and Traffic Authority; Millstar Holdings Pty Limited v Roads and Traffic Authority [2006] NSWLEC 181;
North Albury Shopping Centre Pty Ltd v Albury Municipal Council (1983) 49 LGRA 215 ;
Pastrello v Roads and Traffic Authority of New South Wales (2000) 110 LGERA 223;
Sebastian Cannavo and Busa v Roads and Traffic Authority of New South Wales [2004] NSWLEC 570 ;
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2004] NSWLEC 535 ;
Willis v Roads and Traffic Authority (NSW) NSWLEC, Lloyd AJ, 15 November 1995, unreported;
Yakas v Roads and Traffic Authority of New South Wales [No 2] [2004] NSWLEC 589

DATES OF HEARING: 30/08/2006; written submissions

DATE OF JUDGMENT:
09/21/2006

LEGAL REPRESENTATIVES: APPLICANTS
Mr P McEwen SC with Mr A Pickles
SOLICITORS
Allens Arthur Robinson
RESPONDENT
Mr J Maston
SOLICITORS
Corrs Chambers Westgarth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

21 September 2006

30162 of 2003, Fred Nasser, Michael Nasser & George Nasser v Roads and Traffic Authority;
30163 of 2003 Millstar Holdings Pty Limited v Roads and Traffic Authority (No 3)
JUDGMENT ON DISTURBANCE AND COSTS

1 Her Honour: I handed down judgment in relation to compensation for Millstar Holdings Pty Ltd (“Millstar”) on 6 June 2006 in Nasser v Roads and Traffic Authority; Millstar Holdings Pty Limited v Roads and Traffic Authority [2006] NSWLEC 181.

2 I handed down a further judgment in relation to compensation for the Nasser land on 8 September 2006; Nasser v Roads and Traffic Authority (No 2) [2006] NSWLEC 561.

3 This judgment deals with the claim for disturbance and costs in both those matters. I will deal with disturbance first.

Disturbance

4 Section 59 of the Land Acquisition (Just Terms Compensation) Act 1991…

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: [2006] NSWLEC 562
Decision Date: 21/09/2006

CaseChat Overview and Summary

The case of Nasser v Roads and Traffic Authority (NSW) before the Land and Environment Court of New South Wales involved the applicants, Fred Nasser, Michael Nasser, George Nasser, and Millstar Holdings Pty Ltd, challenging the compulsory acquisition of their land by the Roads and Traffic Authority. The applicants sought compensation for disturbance and costs, including stamp duty and legal fees incurred in purchasing replacement properties. The legal issues before the court were whether the applicants were entitled to claim disturbance under section 59 of the Land Acquisition (Just Terms Compensation) Act 1991 and if section 61 of the same act precluded such claims. Additionally, the applicants sought costs of the proceedings under section 69 of the Land and Environment Court Act 1979.

The court found that the applicants were entitled to claim disturbance for the valuation fees incurred in connection with the acquisition. However, regarding the stamp duty and legal costs for purchasing replacement properties, the court held that these costs were potentially recoverable under section 59(f) of the Just Terms Act, as they were a direct consequence of the acquisition. The court further ruled that section 61 did not preclude these claims because the compensation for the market value of the acquired land was not based on its potential use. The court also found that the Nasser brothers could claim these costs as they were in the business of land development, whereas Millstar, which owned only one property, could not make such a claim. Finally, the court awarded the applicants their costs of the proceedings as they had successfully obtained compensation exceeding the Valuer-General's award, aligning with the precedent that in compulsory acquisition cases, the court should favour awarding costs to the dispossessed owner.

Orders