Pham v Transport for NSW

[2024] NSWLEC 1284

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pham v Transport for NSW [2024] NSWLEC 1284

Hearing dates:

Conciliation Conference on 11 December 2023

Date of orders:

30 May 2024

Decision date:

30 May 2024

Jurisdiction:

Class 3

Before:

Kempthorne AC

Decision:

The Court orders:

(1) Compensation is determined in the sum of $3,100,000 pursuant to s 55 of the Land Acquisition Act (Just Terms Compensation) Act 1991 (the Act) for the acquisition of Lot 15 in Deposited Plan 1266923 being part of 1383 -1411 Elizabeth Drive, Kemps Creek NSW 2178.

(2) The Respondent is to pay the Applicants the amount of compensation referred to in Order 1, less the advance already paid, plus statutory interest on the balance of the compensation calculated in accordance with ss 49 and 50 of the Act.

(3) Within 28 days of the later of:

(a) the date the Court issues its orders; and

(b) the date on which the Respondent receives a duly executed deed of release and indemnity and direction as to payment form and restriction on the use of the land instrument pursuant to s 88E(3) of the Conveyancing Act 1919 from the Applicants;

the Respondent is to pay the Applicants the amount of compensation referred to in Order 2.

Catchwords:

COMPULSORY ACQUISITION – objection to the amount of compensation offered by the Respondent – conciliation conference – agreement between the parties – orders

Legislation Cited:

Conveyancing Act 1919, s 88E(3)

Land Acquisition (Just Terms Compensation) Act 1991, ss 49, 50, 55, 66

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Tuong Gia Pham (First Applicant)
Han Trang Pham (Second Applicant)
Transport for New South Wales (Respondent)

Representation:

Counsel:
T Poisel (Applicants)
B Tronson (Respondent)

Solicitors:
Mitry Lawyers (Applicants)
Hunt and Hunt (Respondent)

File Number(s):

2022/223233

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 3 proceedings comprise an objection by Tuong Gia Pham and Han Trang Pham (the Applicants) to an offer of compensation arising from the compulsory acquisition by Transport for NSW (the Respondent) of Lot 15 in Deposited Plan 1266923 being part of 1383 - 1411 Elizabeth Drive, Kemps Creek, NSW 2178 pursuant to the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 (the Act).

Jurisdiction Pre-Requisites

2. On 29 April 2022 the Valuer General of NSW (VG) on behalf of the Respondent determined the amounts of compensation pursuant to the Act as follows:

s.55(a) Market Value

    $1,675,000.00

s.55(c) Severance

Included in s.55(a) amount

s.55(d) Disturbance Not assessed as no evidence provided by the Applicants
Total

    $1,675,000.00

3. In the Points of Defence filed in the Court on 10 November 2022, the Respondent assessed the amounts of compensation pursuant to the Act as set out below:

s.55(a) Market Value

    $2,330,000.00

s.55(c) Severance

Included in s.55(a) amount

s.55(d) Disturbance

    $23,375.00

Total

    $2,353,375.00

4. The Applicants’ claimed the following the amounts of compensation pursuant to the Act:

s.55(a) Market Value

    $4,018,600.00

s.55(c) Severance

    $1,036,200.00

s.55(d) Disturbance

    $34,791.90

Total

    $5,089,591.90

5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties on 11 December 2023.

6. I presided over the conciliation conference.

Section 34 Agreement

7. During the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

8. The terms of the agreement reached by the parties are that:

1. Compensation is determined in the sum of $3,100,000 pursuant to s 55 of the Act, for the acquisition of Lot 15 in Deposited Plan 1266923, being part of 1383 - 1411 Elizabeth Drive, Kemps Creek NSW 2178.

2. The Respondent is to pay the Applicants the amount of compensation less the advance already paid, plus statutory interest on the balance of compensation calculated in accordance with ss 49 and 50 of the Act.

3. Within 28 days of the later of:

1. the date the Court issues its orders; and

2. the date on which the Respondent receives a duly executed deed of release and indemnity and direction as to payment form and restriction on the use of the land instrument pursuant to s 88E(3) of the Conveyancing Act 1919 from the Applicants,

3. the Respondent is to pay the Applicants the amount of compensation referred to above

9. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the functions pursuant to ss 66(1) and 66(2) of the Act to hear and dispose of the Applicants’ claim for compensation.

10. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

11. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Orders

12. The Court orders:

1. Compensation is determined in the sum of $3,100,000 pursuant to s 55 of the Land Acquisition (Just Terms Compensation) Act 1991, for the acquisition of Lot 15 in Deposited Plan 1266923, being part of 1383 - 1411 Elizabeth Drive, Kemps Creek NSW 2178.

2. The Respondent is to pay the Applicants the amount of compensation referred to in Order 1, less the advance already paid, plus statutory interest on the balance of compensation calculated in accordance with ss 49 and 50 of the Act.

3. Within 28 days of the later of:

1. the date the Court issues its orders; and

2. the date on which the Respondent receives a duly executed deed of release and indemnity and direction as to payment form and restriction on the use of the land instrument pursuant to s 88E(3) of the Conveyancing Act 1919 from the Applicants;

3. the Respondent is to pay the Applicants the amount of compensation referred to in Order 2.

Notations

13. The Court notes:

1. The Respondent has agreed to pay the Applicants’ reasonable costs of the proceedings as agreed or assessed, and subject to the production of invoices and receipts. There is to be no interest payable on costs.

2. Save for the costs agreed in Notation (1) above, the sum of $1,507,500 plus statutory interest has already been paid to the Applicants leaving $1,592,500 remainder (the Remainder) to be paid; and

3. Statutory interest pursuant ss 49 and 50 of the Land Acquisition (Just Terms Compensation) Act 1991 is payable on the Remainder.

P Kempthorne

Acting Commissioner of the Court

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Decision last updated: 30 May 2024