Obeid v Victorian Urban Development Authority

[2012] VSC 251

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST

S CI 2011 01232

SAMIR OBEID	Plaintiff
v
VICTORIAN URBAN DEVELOPMENT AUTHORITY	Defendant

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 - 25 October 2011
DATE OF JUDGMENT:	18 June 2012
CASE MAY BE CITED AS:	Obeid v Victorian Urban Development Authority
MEDIUM NEUTRAL CITATION:	[2012] VSC 251	Revision 1 (18 June 2012)

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LAND ACQUISITION AND COMPENSATION – Leased land – Notice of compulsory acquisition published in Government Gazette – Construction of notice – Principles – What interest(s) acquired – What interest(s) divested – Whether tenant’s leasehold interest acquired or divested - Surrounding circumstances - Whether extrinsic material can be considered – Whether private correspondence from acquiring authority can be considered - Held:  Leasehold interest divested and tenant entitled to compensation accordingly – Land Acquisition and Compensation Act 1986 Parts I and II and ss 30 and 81; Land Acquisition and Compensation Regulations 1998 – Transfer of Land Act 1958 ss 53, 54; Interpretation of Legislation Act 1984 s 35, 38, 53; Victorian Urban Development Authority Act 2003, s 42.

ESTOPPEL – Whether tenant estopped from enforcing statutory right to compensation – No relevant reliance by acquiring authority – No detriment – Estoppel not established.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Garde QC with Mr G Peake	Rennick & Gaynor
For the Defendant	Mr J Delany SC with Mr P Chiappi	Garland Hawthorn Brahe

HIS HONOUR:

Overview

1. The plaintiff, Mr Samir Obeid, applies by originating motion for a declaration that his interest as a tenant of a certain retail shop in Mason Street, Dandenong was divested by virtue of a notice of acquisition under the Land Acquisition and Compensation Act 1986 (‘the LAC’) published in the Victoria Government Gazette on behalf of the defendant (‘VicUrban’) on 26 June 2008, and a declaration that he is entitled to make a claim for compensation under the LAC accordingly.

1. VicUrban acknowledges that Mr Obeid’s interest in the retail premises was an interest in land for the purposes of the LAC, but denies that his interest was divested by the relevant notice of acquisition, on its true construction. According to VicUrban, the publication of the notice resulted in the acquisition of only the landlord’s interest in the land; that this did not terminate or divest Mr Obeid’s leasehold interest; and that Mr Obeid therefore has no claim for compensation.

1. This case turns mainly on the proper interpretation of the notice of acquisition in the light of the provisions of the LAC. It raises questions of principle concerning the approach to be taken to interpreting notices of acquisition under the LAC, including questions concerning the extent to which the Court may have regard to matters external to the notice, such as private communications between the acquiring Authority and the relevant interest holders. In this regard, VicUrban seeks to rely in part on its private correspondence with Mr Obeid and…