Nordburger Pty Ltd v Commissioner of Highways

[2022] SASCA 17

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

NORDBURGER PTY LTD v COMMISSIONER OF HIGHWAYS

[2022] SASCA 17

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)

11 March 2022

REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - POWERS OF ACQUISITION

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS

By Notice of Appeal dated 23 December 2021, the appellant sought to appeal against orders made by a Master of this Court on 1 December 2021 under s 24A(2) of the Land Acquisition Act 1969 (SA), whereby the appellant was ordered to provide vacant possession of land occupied under lease which was the subject of compulsory acquisition. On 23 December 2021 the appellant applied for a stay of the Master’s order. That was heard and refused by a Judge of this Court on the same date.

The appellant pressed its appeal, until it was discontinued by consent on 8 March 2022 after the subject premises were demolished.

The appellant opposes an order for costs. 

Held (per the Court):

1.      The appellant must pay the respondent’s costs.

Land Acquisition Act 1969 (SA); Uniform Civil Rules 2020 (SA), referred to.
Commissioner of Highways v Dorchester Pty Ltd [2021] SASC 137; De Pasquale v ASCF Managed Investments Pty Ltd [2021] SASC 21; Mineralogy Pty Ltd v National Native Title Tribunal, Red Alexander on Behalf of the Kurama People and The State of Western Australia [1998] FCA 1700; Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622; Viscariello v Macks (No 3) [2021] SASC 69, considered.

NORDBURGER PTY LTD v COMMISSIONER OF HIGHWAYS
[2022] SASCA 17

Court of Appeal: Civil – Livesey P, Bleby and David JJA

THE COURT:

1. The appellant, Nordburger, commenced this appeal one day out of time on 23 December 2021.

2. The appeal challenged the orders made by Judge Dart on 1 December 2021 under s 24A(2) of the Land Acquisition Act 1969 (SA), whereby it was ordered to provide vacant possession of land occupied by it under lease. The land was the subject of a notice of compulsory acquisition.[1] 

   [1]     See Commissioner of Highways v Dorchester Pty Ltd& Others [2021] SASC 137, [8], [17], [48] (Judge Dart).

3. On the same day as the Notice of Appeal was filed, the appellant applied for a stay of Judge Dart’s order.  That was heard and refused by Justice Parker on 23 December 2021.  In the course of ex tempore reasons, his Honour noted that compensation in favour of the appellant totalling $270,000 had been paid into Court.  Parker J regarded the appellant’s appeal as having “very limited” prospects of success.  His Honour described the appeal as “possibly” arguable.  Parker J emphasised that the ultimate decision involved the exercise of a judicial discretion and he could not identify any error.  As for the balance of convenience, whatever the delay in “the sorting out of the compensation”, there was no question that compensation would be paid.  That was, indeed, the “ultimate issue”.  It would be a matter for the appellant to demonstrate whether the compensation should ultimately be more than $270,000. 

4. When this matter was called over on 21 January and 4 February 2022, there was no dispute that the Commissioner had already taken possession of the land and the appellant was directed to advise by 1 February 2022 whether the appeal was to be pressed.  Remarkably, though the appellant acknowledged that the refusal of the stay and the likely demolition of the premises negated “the subject matter” of the appeal, it was being pressed so as to limit the appellant’s “exposure to costs”. 

5. The appellant was warned that for so long as the appeal remained on foot, it would be necessary to comply with the Court’s orders regarding the delivery of the appeal book, submissions and other materials. 

6. The appellant did not comply with the Court’s orders, nor did it discontinue the appeal.  Only when the matter was called over on 8 March 2022, because of the appellant’s failure to comply with the orders of the Court, did the appellant finally consent to discontinuance.

7. The matter has been called on today because the appellant opposes an order for costs. 

8. Both parties rely upon Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin.[2]  The appellant relies, in addition, on Viscariello v Macks (No 3) and Mineralogy Pty Ltd v National Native Title Tribunal, Red Alexander on Behalf of the Kurama People and The State of Western Australia.[3]  The respondent relies on rr 3.1(1)(k) and 194.6 of the Uniform Civil Rules 2020 (SA).

   [2]     Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622.

   [3]     Viscariello v Macks(No 3) [2021] SASC 69, [114]-[121] (Norman AJ) and Mineralogy Pty Ltd v National Native Title Tribunal, Red Alexander on Behalf of the Kurama People and The State of Western Australia [1998] FCA 1700.

9. For its part, the appellant maintains that it acted reasonably in commencing and continuing the appeal with the result that there should be no order as to costs.  In particular, the appellant contends that its appeal was only rendered otiose by events which occurred after the appeal was filed.  The appellant contends that the appeal had merit. 

10. The appellant relies upon De Pasquale v ASCF Managed Investments Pty Ltd (ACN 106 424 088) for the proposition that where there is a real issue of fact or law to be determined in relation to an action for possession of land, the usual course is that the proceeding must be subject to a claim and trial.[4]  De Pasquale’s case has nothing to do with this case. 

    [4]     De Pasquale v ASCF Managed Investments Pty Ltd (ACN 106 424 088) [2021] SASC 21 (De Pasquale).

11. This is not a case where the appeal was meritorious, and the appellant acted reasonably in commencing and pressing the appeal.  Rather, the appellant pressed an unmeritorious appeal notwithstanding that it was futile to do so once a stay was refused.

12. The appellant must pay the respondent’s costs.