Samsara Developments Pty Ltd as trustee for the Western Australian Land Unit Trust No.8 v The Public Transport Authority of Western Australia
[2025] WASC 27
•31 JANUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SAMSARA DEVELOPMENTS PTY LTD as trustee for THE WESTERN AUSTRALIAN LAND UNIT TRUST NO.8 -v- THE PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA [2025] WASC 27
CORAM: MASTER RUSSELL
HEARD: 7 FEBRUARY 2024
DELIVERED : 31 JANUARY 2025
FILE NO/S: CIV 1548 of 2023
BETWEEN: SAMSARA DEVELOPMENTS PTY LTD (ACN 136 321 265) as trustee for THE WESTERN AUSTRALIAN LAND UNIT TRUST NO.8
Plaintiff
AND
THE PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA
Defendant
Catchwords:
Practice and procedure - Summary judgment - Defendant's application for summary judgment pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (WA) - Plaintiff's claim for compensation under s 241 of the Land Administration Act 1997 (WA) - Turns on own facts
Practice and procedure - Strike out application - Defendant's application to strike out statement of claim pursuant to O 20 r 19(1) of the Rules of the Supreme Court 1971 (WA) – Plaintiff's claim for compensation under s 241(6) of the Land Administration Act 1997 (WA) - Whether plaintiff entitled to be compensated for loss of opportunity to develop land - Whether appropriate to resolve question of statutory construction summarily - Turns on own facts
Legislation:
Land Administration Act 1977 (WA), s 202(1), s 241, s 241(1), s 241(6)
Rules of the Supreme Court 1971 (WA), O 16 r 1, O 20 r 19(1), O 20 r 19(2)
Result:
Defendant's application for summary judgment dismissed
Defendant's application to strike out parts of amended statement of claim allowed
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr T Houweling |
| Defendant | : | Mr S J Cobbett |
Solicitors:
| Plaintiff | : | Cornerstone Legal |
| Defendant | : | State Solicitor's Office |
Cases referred to in decision:
Agar v Hyde [2000] HCA 41
Bakota v City of Wanneroo [2022] WASC 462
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
BGC Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2019] WASC 248
CIC Insurances Ltd v Bnkstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
DBW Reynolds Pty Ltd as trustee for the DBW Reynolds Family Trust v Public Transport Authority [2023] WASC 165
Doyle’s Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) [2021] NSWCA 246
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Fremantle Port Authority v Cosco Shipping Bulk (South East Asia) Pte Ltd [2023] WASC 95
Gerovich v Gerovich [2018] WASC 153
Great Southern Finance Pty Ltd (in liq) v Rhodes [2014] WASC 431
Hesse v Hardie [2023] WASCA 173
Italiano v The Water Corporation [No 2] [2020] WASC 112
Kelliher v Commissioner for Main Roads [No 2] [2015] WASC 478
Konowalow & Felber v Minister for Works [1961] WAR 40
Lenz Nominees Pty Ltd v Commissioner of Main Roads [2012] WASC 6
McKay v Commissioner of Main Roads [No 7] [2011] WASC 223
NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107
Palmer v Citic Ltd [No 13] [2024] WASC 325
Pisano v South Metropolitan Health Service [2023] WASCA 80
Project Blue Sky Inc v Australian Boroadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Rugby Joint Water Board v Shaw-Fox [1973] AC 202
Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332, 68 ALJR 313, 120 ALR 16
Spencer v The Commonwealth [1907] HCA 82; (1907) 5 CLR 418, 432
Theiss v Collector of Customs [2014] HCA 12; (2012) 250 CLR 664
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259
Westpac Banking Corporation v Anderson [2017] WASC 106
MASTER RUSSELL:
Introduction
The plaintiff, Samsara Developments Pty Ltd as trustee for the Western Australian Land Unit Trust No.8 (Samsara), was the owner of an area of land in Yelverton Drive, Midland, Western Australia, namely Lot 499 on Deposited Plan 66298, being the whole of the land in Certificate of Title Volume 2750 Folio 696 (Land).
The defendant, the Public Transport Authority of Western Australia (PTA), is a public authority and responsible for the construction of the railway network known as Metronet.
The Land is located south of the Midland townsite, in an area identified as the Midland Redevelopment Area (METRONET East - Midland Project area).[1]
[1] A declared redevelopment area as defined in regulation 12(1)(a) of the Metropolitan Redevelopment Authority Regulations 2011 (WA).
On 30 May 2018, the Metropolitan Redevelopment Authority approved development and construction of a two‑storey educational establishment, office and restaurant or cafe on the Land.
On 3 April 2019, Samsara entered into a contract to purchase the Land with a view to developing it and constructing 12 strata titled office suites on the Land. On 30 October 2019, after the contract became unconditional and before settlement, the PTA wrote to Samsara informing it of plans to expand existing and future rail operations in the vicinity of the Land as part of the Metronet project, and offering to acquire the Land from Samsara when it became the registered proprietor of the Land.
Samsara became the registered proprietor of the Land in November 2019 and, on 28 October 2020:
(a)Samsara and the PTA entered into an agreement pursuant to s 168 of the Land Administration Act 1997 (WA) (LAA) (Section 168 Agreement) under which it was agreed, in essence, that the PTA would take Samsara's estate and interest in the Land and Samsara would receive payment of $1,917,553.27. That amount comprised:
(i)$1,450,000 plus GST ($1,595,000) as an advance payment in full and final satisfaction of the land value component of the Land under s 241(2) of the LAA;
(ii)$145,000 as an advance payment for solatium;
(iii)$154,085.21 for reimbursement of costs incurred by Samsara, as set out in the spreadsheet attached to the Section 168 Agreement; and
(iv)the balance for outgoings under cl 3.1 of the Section 168 Agreement;
(b)the Land was 'taken' by registration of a 'taking order' (as those terms are defined in s 151 of the LAA) for public transport facilities in connection with a railway as authorised by the Eastern Railway Extension Act 1881 (WA); and
(c)the PTA paid Samsara the amount of $1,917,553.27.
Samsara issued these proceedings on 27 July 2023 claiming compensation from the PTA for disturbance to its business, interest on loans for the period between its purchase of the Land and the date the compensation was paid, and loss of profits.
The PTA denies that it is liable to Samsara for compensation, as claimed. In essence, the PTA says this is because it made a payment to Samsara in full and final satisfaction of the value of the Land, solatium and other costs and expenses pursuant to the Section 168 Agreement, and Samsara is not entitled to compensation for any future loss or loss of profits under the LAA.
The PTA otherwise denies Samsara's claims and applies for:
(a)summary judgment and dismissal of the action pursuant to O 16 r 1(1) of the Rules of the Supreme Court 1971 (WA) (RSC);
(b)alternatively, an order pursuant to O 20 r 19(1)(a), (b), (c) or (d) RSC that the statement of claim be struck out and the action be dismissed; or
(c)alternatively, an order pursuant to O 20 r 19(1)(a), (b), (c) or (d) RSC that paragraphs 19, 20, 21, 22, 23 of the statement of claim and paragraphs [A] - [D] (inclusive) of the prayer for relief be struck out.
For the reasons that follow:
(a)the PTA's applications for summary judgment and to strike out the statement of claim and dismiss the action are dismissed;
(b)the PTA's alternative application to strike out particular paragraphs of the statement of claim is allowed, and Samsara will have leave to amend, as set out.
The PTA's application
In support of its application, the PTA relies on:
(a)an affidavit sworn by Stuart Jonathan Cobbett on 17 August 2023 (Cobbett Affidavit), except in relation to the application under O 20 r 19(1)(a), in respect of which no evidence is admissible;[2]
(b)an outline of submissions filed on 10 January 2024; and
(c)an outline of submissions in reply filed on 31 January 2024.
[2] Pursuant to O 20 r 19(2) RSC.
Samsara opposes the application and relies on an outline of submissions filed on 24 January 2024.
Applicable legal principles
Order 16 r 1(1) RSC allows a defendant to an action to apply to the court for summary judgment. The application may be made without leave at any time up to 21 days after the defendant enters an appearance, or any later time with leave of the court.
An application under O 20 r 19 RSC to strike out a pleading must be made within 21 days of service of any pleading to which the application refers. The court has a discretion to extend the time in which an application under O 20 r 19 RSC is brought.
The 21-day limit to bring an application for summary judgment (and to strike out a pleading) reflects the view that such applications should be brought promptly and at an early stage of the proceeding, before unnecessary expense is incurred. Ordinarily, where there is a delay, it must be explained, and the onus is on the applicant to demonstrate that the delay is justifiable in all of the circumstances.[3]
[3] See Westpac Banking Corporation v Anderson [2017] WASC 106 [38] (Pritchard J) and the authorities referred to, which also apply to an application under O 16 RSC. The same principles apply to an application under O 20 r 19 RSC.
In this case, the time within which the defendant was to make any such application was extended by agreement between the parties. The court made orders, by consent, on 4 July 2023 extending the time for making any application for summary judgment or strike out to 21 days after the filing of the amended writ and statement of claim.
The amended writ and statement of claim was filed on 27 July 2023. The defendant filed its application for summary judgment and strike out within 21 days of that date, on 17 August 2024. As such, leave is not required.
Summary Judgment Application
The legal principles relating to an application for summary judgment pursuant to O 16 r 1(1) are well established. They were summarised by Pritchard J in Gerovich v Gerovich[4] and more recently by the Court of Appeal in Pisano v South Metropolitan Health Service,[5] as follows:
[4] Gerovich v Gerovich [2018] WASC 153 [27] ‑ [32].
[5] Pisano v South Metropolitan Health Service [2023] WASCA 80 (Buss P, Vaughan & Hall JJA) (Pisano) [52].
[52]The general principles that apply on a defendant's application for summary judgment under O 16 r 1(1) RSC are well-established:
1.The power to order summary judgment is one that should be exercised with great care (sometimes expressed as 'exceptional caution'). A party should not ordinarily be denied the opportunity to have its case determined following trial. It is only in the clearest of cases, where there is a high degree of certainty about the ultimate outcome of the proceedings if they were to go to trial, that summary judgment ought properly to be granted. Accordingly, summary judgment will be granted only where it is clear there is no real question to be tried.
2.Put alternatively, the relevant question for summary dismissal is whether, on the materials before the court, it has been demonstrated that the plaintiff's action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail.
3.At all times the defendant retains the legal onus of demonstrating that the application for summary judgment ought to succeed. The defendant must establish that there is no real question to be tried on any cause of action raised by the plaintiff.
4.If a defendant's affidavit material establishes the basis for the summary judgment application, the plaintiff may assume an evidentiary onus to show why summary judgment should not be given. The plaintiff may, by an affidavit to show cause pursuant to O 16 r 2(1) RSC, seek to demonstrate the existence of a triable issue. The plaintiff's affidavit must condescend to particulars - it must set out facts which establish that it is reasonable to allow the plaintiff to pursue the action.
5.Actions should not be disposed of summarily where the material factual issues between the parties are in dispute. Similarly, summary dismissal should not be awarded simply because the court has formed the view that the plaintiff is unlikely to succeed on the factual issues. Unless the evidence is inherently incredible, where there is a conflict in the affidavit evidence the court should approach the summary judgment application on the basis that the facts set out in the affidavits of the party resisting judgment will be accepted at trial. But the court is not bound to accept uncritically, as raising a factual dispute calling for further investigation, every statement in an affidavit however inherently improbable in itself or equivocal, lacking in precision or inconsistent with undisputed contemporary documents or other statements by the deponent.
6.Where a plaintiff's claim depends on propositions of law apparently precluded by existing authority that may not always be the end of the matter. The court should be careful not to risk stifling the development of the law by summarily rejecting a claim if there is a reasonable possibility that the law is developing. Summary processes must not be used to stultify the development of the law where existing authority may be overruled, qualified or further explained.
7.It is not the case that summary judgment will only be given where the action is so hopeless as to not require argument. Extensive argument may be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot possibly succeed.
8.On an application under O 16 r 1(1) RSC the plaintiff is confined to the causes of action pleaded in the statement of claim (although the statement of claim will be construed broadly and generously, with ambiguities assumed in favour of the plaintiff, and a reasonable application to amend will be permitted). It is not for the court to identify or accept possible causes of action which are arguably available on the evidence but are not pleaded.
(citations omitted)
Strike Out Application
The legal principles relating to a strike out application are also well established. The principles were comprehensively set out by Smith J in Vantage Holdings Group Pty Ltd v Donnelly [No 4][6] and affirmed by the Court of Appeal in English v Vantage Holdings Group Pty Ltd,[7] as follows:
[6] Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60].
[7] English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [55] - [56] (Murphy & Vaughan JJA), [163] (Mitchell JA agreeing).
55…
The principles relevant to the strike out application are as follows:
(a)the essential functions of a pleading are to define and limit the issues for decision, to provide the basis for determining discovery and the admissibility of evidence for trial, and to ensure a fair trial by putting the other side on notice of the case it must meet;
(b)a statement of claim must not plead allegations at too high a level of generality. A pleading must be sufficiently particular to conform with one of the primary objects of pleadings, to inform the opposing party of the case that it must meet;
(c)a statement of claim must state specifically the relief or remedy claimed;
(d)the court should proceed with caution before striking out a pleading on the ground that it does not disclose a reasonable cause of action. While the court may determine a difficult question of law on such an application, it would usually be appropriate to leave the determination of such questions for trial;
(e)in alleging no reasonable cause of action:
(i)the question to be decided is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action. Rather, the question is whether it would be open to the party (on its pleadings) to prove facts at the trial which would constitute a cause of action; and
(ii)'reasonable' means reasonable according to law. If the facts pleaded conceivably give rise to relief, then the cause of action should be held to be reasonable;
(f)the mere fact that a case appears weak is not of itself sufficient to strike out the action;
(g)in considering a strike out application, it is now necessary to consider the role of pleadings in the context of case management techniques. Case management considerations are not, however, necessarily antithetical to the observance of pleading rules. The objects of O 1 r 4A and 4B of the Rules of the Supreme Court 1971 (WA) are often promoted by a clear and precise statement of the issues for decision;
(h)provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action (or defence), and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleading rules that evolved in, and derive from, a very different case management environment;
(i)pleadings may be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general; and
(j)irrelevant or unnecessary pleas in a statement of claim will be struck out on the grounds that they will prejudice, embarrass or delay the fair trial of the action where the defendant must traverse the allegations and, thereby, raise false issues.
(citations omitted)
To the extent the strike out application is made on the ground that the statement of claim discloses no reasonable cause of action, pursuant to O 20 r 19(1)(a) RSC, no evidence is admissible.[8]
The relevant provisions of the Land Administration Act 1997 (WA)
[8] O 20 r 19(2) RSC.
Part 9 of the LAA relates to the compulsory acquisition of interests in land. Relevantly, s 161(1) provides:
161.Interests in land may be taken etc.
(1)Whenever the Crown, the Governor, the Government, any Minister of the Crown, any State instrumentality or any local government is authorised, by this Act, the Public Works Act 1902 or any other Act, to undertake, construct or provide any public work, and the use of any land or any interest in land is required for the purposes of the work, then, unless otherwise specially provided —
(a)any interest in the land held by a person other than the Crown may be taken; and
(b)subject to Part 4, any designation of the land or of any interest in the land may be removed; and
(c)any management order affecting the land may be revoked or modified, whatever the purpose for which the order had been made, whether local or general; and
(d)any interest in the land held by the Crown or taken from some other person under paragraph (a) may be disposed of or granted to any other person; and
(e)any interest in the land held by the Crown or taken from some other person under paragraph (a) (including an interest disposed of or granted under paragraph (d)) may be designated for the purpose of the public work,
in accordance with this Part.
The following relevant terms are defined in s 151(1) of the LAA:
…
acquiring authority, in relation to land, means the person or body having the statutory authorisation referred to in s 161 to undertake, construct or provide any public work;
…
interest means any legal or equitable estate or interest in land … ;
…
take, taken and taking have the meaning given by subsection (2);
taking order means an order made under s 177.
Section 151(2) provides, relevantly:
(2)For the purposes of this Part and Part 10 —
(a) a reference to the taking of an interest in land is a reference to the extinguishment of the interest … by a taking order;
(b)a reference to the taking of land is a reference to the extinguishment of every interest in the land … by a taking order, subject to such exceptions as are specified in the order.
Section 177 prescribes the Minister's powers to make a taking order. It is not necessary that I set out the terms of that provision. There is no dispute that the Land was taken by registration of a taking order on 28 October 2020.[9]
[9] Amended statement of claim filed on 27 July 2023 (ASOC) [8]; Defence filed on 10 August 2023 (Defence) [8].
Part 10 of the LAA relates to entitlements to compensation. Section 202(1) provides that 'every person having an interest in land which is taken under Part 9 is entitled, subject to this Part, to compensation for the interest from the acquiring authority.'
The requirements to make a claim for compensation are prescribed in Division 2 of Part 10. They are not in dispute. Nor is it disputed that Samsara is entitled to be compensated for its interest in the Land taken by the PTA.
What is in dispute is the amount of compensation Samsara is entitled to and whether it is entitled to be compensated for the loss of an opportunity it had to develop the Land. Samsara claims it is entitled to be compensated for the disturbance to its business of developing lots for sale and consequential loss of the opportunity to generate revenue and profits from the sale of the developed lots. The PTA disputes this and says that such entitlement does not arise under the LAA.
Section 241 of the LAA sets out the framework for how compensation is to be determined. Samsara claims compensation in accordance with section 241(6), (9) and (11).[10] Relevantly, s 241 provides:
[10] ASOC [23], Prayer for relief [A].
241.How compensation to be determined
(1)In determining the amount of compensation (if any) to be offered, paid, or awarded for an interest in land taken under Part 9, regard is to be had solely to the matters referred to in this section.
(2)Regard is to be had to the value of the land with any improvements, or the interest of the claimant in the land, assessed as on —
(a)in the case of an interest taken for a railway or other work authorised by a special Act — the first day of the session of Parliament in which the Act was introduced; or
(b)in the case of an interest taken by agreement under section 168 — the date of the execution of the agreement, unless the agreement provides otherwise; or
(c)in the case of an interest to which paragraphs (a) and (b) do not apply — the date of the taking,
and discounting any increase or decrease in value attributable to the proposed public work.
…
(6)Regard is to be had to the loss or damage, if any, sustained by the claimant by reason of —
(a)removal expenses; or
(b)disruption and reinstatement of a business; or
(c)the halting of building works in progress at the date when the interest is taken and the consequential termination of building contracts; or
(d)architect's fees or quantity surveyor's fees actually incurred by the claimant in respect of proposed buildings or improvements which cannot be commenced or continued in consequence of the taking of the interest; or
(e)any other facts which the acquiring authority, the court, or the State Administrative Tribunal considers it just to take into account in the circumstances of the case.
…
Samsara also claims compensation pursuant to s 241(9), which is reproduced below together with s 241(8) to which it refers:
(8)If the interest in land is taken without agreement, an amount considered by the court or the State Administrative Tribunal or, for the purposes of making an offer, by the acquiring authority, appropriate to compensate for the taking without agreement may be added to the award or offer.
(9)The additional amount under subsection (8) must not be more than 10% of the amount otherwise awarded or offered, unless the court or the State Administrative Tribunal, or, for the purposes of making an offer, the acquiring authority, is satisfied that exceptional circumstances justify a higher amount.
Subsections 241(11) and (12) of the LAA relate to interest and are in the following terms:
(11)If the interest in land taken does not produce any rents or profits, interest is to be paid at the rate prescribed under section 8(1)(a) of the Civil Judgments Enforcement Act 2004 as at the date of entry for construction or carrying out of the work or the date of registration of the taking order, whichever is earlier, and the interest is payable from —
(a)the date of the service of the claim on the acquiring authority; or
(b)the date of entry for construction or carrying out of the work,
whichever is earlier, to the date —
(c)when the offer was served on the claimant, if the compensation awarded by the State Administrative Tribunal or the court of competent jurisdiction is not more than the amount offered by the acquiring authority; or
(d)of settlement of the claim, in any other case.
(12)Subject to subsections (10) and (11) —
(a)when any amount representing an advance payment of compensation is paid to a claimant, interest on the total amount of compensation is payable only to the date of the first payment, and interest is payable thereafter only on the balance outstanding from time to time; and
(b)when any amount is offered by the acquiring authority as an advance payment of compensation under section 248 and the offer is not accepted by the claimant within 30 days of the day on which it was made, no interest is payable thereafter in respect of the amount so offered.
It is not necessary for me to set out in detail the general principles that apply to the assessment of compensation to be awarded pursuant to s 241 of the LAA and the valuation of land taken. They were comprehensively set out by Beech J (as his Honour then was) in McKay v Commissioner of Main Roads [No 7][11] and summarised by Edelman J (when a judge of this court) in Lenz Nominees Pty Ltd v Commissioner of Main Roads.[12]
[11] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 (McKay [No 7]) [139] - [162].
[12] Lenz Nominees Pty Ltd v Commissioner of Main Roads [2012] WASC 6 (Lenz Nominees) [65] - [66], referring to the principles set out by Beech J in McKay [No 7].
More recently, in DBW Reynolds Pty Ltd as trustee for the DBW Reynolds Family Trust v Public Transport Authority,[13] Kenneth Martin J referred to the principles set out in McKay [No 7], as summarised in Lenz Nominees, and repeated his own earlier analysis of those principles in his reasons for decision in Italiano v The Water Corporation [No 2].[14]
[13] DBW Reynolds Pty Ltd as trustee for the DBW Reynolds Family Trust v Public Transport Authority [2023] WASC 165 (DBW) [69] - [70].
[14] DBW [71]; Italiano v The Water Corporation [No 2] [2020] WASC 112 [76] (Kenneth Martin J).
The proper construction of s 241(6) and certain subsections of that section was considered in McKay [No 7],[15] Lenz Nominees[16] and DBW.[17] I consider the relevant parts of those authorities, which are relied upon by the parties, later in these reasons.
[15] McKay [No 7] [2828] - [2832].
[16] Lenz Nominees [409] - [425], although the focus of his Honour's consideration in Lenz Nominees was on s 241(6)(e). See also Bakota v City of Wanneroo [2022] WASC 462 [30] - [33].
[17] DBW [180] - [186].
The Section 168 Agreement
Relevantly, the Section 168 Agreement contained terms to the following effect:[18]
[18] Defined terms not otherwise defined in these reasons are as defined in the Section 168 Agreement.
(a)the PTA would take Samsara's estate and interest in the Land free from all limitations, interests, encumbrances, notifications and easements (except for the Specified Encumbrances) together with any improvements;[19]
(b)upon lodgement of the taking order for the Land, the PTA would pay Samsara:
(i)an advance payment of $1.595m (plus GST if applicable) representing $1.45m in full and final satisfaction of the land value component of the Land under s 241(2) of the LAA and $145,000 for solatium; and
(ii)$154,085.82 being reimbursement of costs incurred by Samsara as set out in the spreadsheet attached to the Section 168 Agreement;[20]
(c)the amount of Compensation (the amount payable for the Land assessed pursuant to s 241 of the LAA), if not agreed, shall be determined in accordance with the provisions of Part 10 of the LAA as varied by the Section 168 Agreement;[21]
(d)if the final amount of compensation to be paid cannot be agreed between the parties it shall be determined by an action for compensation by Samsara against the PTA in the Supreme Court of Western Australia or by reference of the claim to the State Administrative Tribunal in accordance with the provisions of the LAA;[22]
(e)The PTA acknowledged that if Samsara commences proceedings to have the quantum of compensation payable assessed it will not be entitled to a refund from Samsara of any amount of the advance payment if any determination of compensation in such proceedings reflects a sum which is less than the amount of the advance payment;[23] and
(f)Samsara and the PTA agreed that the consideration for the agreement to take included interest at the rate provided for in s 241 of the LAA being calculated from the date of registration of the taking order.[24]
[19] Section 168 Agreement, cl 2(a).
[20] Section 168 Agreement, cl 3.1 read with cl 1.1 - definitions of 'Advance Payment' and 'Costs'.
[21] Section 168 Agreement, cl 2(b) read with cl 1.1 - definition of 'Compensation'.
[22] Section 168 Agreement, cl 2(c).
[23] Section 168 Agreement, cl 2(e).
[24] Section 168 Agreement, cl 2(f).
Samsara's case
Samsara's case, as pleaded in the amended statement of claim (ASOC), is outlined in the introduction to these reasons. As noted, it is not in dispute that the Land was taken by the PTA and that the payment referred to of $1,917,553.27 was made by the PTA to Samsara on 28 October 2020 pursuant to the Section 168 Agreement.
At paragraph 18 of the ASOC, Samsara pleads that it was paid an 'Advance Payment' representing the value of the Land pursuant to s 241(2) of the LAA, leaving the question of its business losses to be decided.
Samsara claims it is entitled to further compensation. This is disputed by the PTA. Samsara's claim for further compensation, and which is the subject of the PTA's strike out applications, is pleaded in paragraphs 19 - 23 and the prayer for relief of the ASOC, as follows:[25]
[25] The mark up reflects the marked-up amendments to the statement of claim in the amended writ of summons filed on 27 July 2023.
19. Further, the Plaintiff is entitled to compensation for the disturbance the business of developing lots for the purpose of sale, for that reason the Plaintiff is entitled to consequential losses (sic).
20. The loss of the sale of the
Landdeveloped end lots is a loss of the Plaintiff's stock in trade and the opportunity to generate revenue and profit and is recoverable pursuant to Section 241(6) of the Act.21. As at the Taking Date the Plaintiff had a contract for the sale agreement of the entire first floor of the proposed development. Additionally, the Plaintiff
had been contracted toarranged for the fit out the entire first floor, that but for the Taking would have proceeded. The Plaintiff expected to develop the land for 12 strata lots from which it expected to earn revenue in carrying on its business and aan additionalcommercial profit. The revenue and profits generated are an essential part of the Plaintiffs (sic) business, for that reason the loss of the Land represents an effective loss of the Plaintiff's "stock". The Taking removed from the Plaintiff opportunity for the development of strata lots and the sale of those lots as part of the Plaintiff's ordinary business.22. The Plaintiff is entitled to the value of the business losses as disturbance.
GROUNDS FOR COMPENSATION
23. The Plaintiff now claims against the Defendant compensation in accordance with section 241(6) (9) and (11) of the Act.
less the Advance Payment and interest on the Advance Payment.In respect of the business losses incurred these include the following:(a) the cost of time spent by the Plaintiff company at the time immediately before the purchase of the Land up to the date of the Taking of the Land in respect of:
i. the costs incurred by the Plaintiff identifying and considering the Land for purchase;
ii. the costs incurred by the Plaintiff together with an analysis of the development potential of the Land;
iii. the costs incurred by the Plaintiff in instructing experts to consider the development potential of the Land before purchase of the Land;
iv. the cost incurred by the Plaintiff in considering various reports and information to assess the viability of any development;
v. the cost incurred by the Plaintiff in negotiations with the owner for the purchase of the lot;
vi. the cost incurred by the Plaintiff in negotiations with end lot purchasers for sale and construction of the strata lots to meet the purchasers needs; and
vii. the cost incurred by the Plaintiff in working out the costs for developing the site.
(b) settlement costs incurred on the purchase of the Land;
(c) interest on loans for the period between the purchase of the Land and the date on which compensation was paid; and
(d) business losses represented by the loss of the opportunity for the value of revenue less expenses on the sale of end lots as the "stock in trade" of the Plaintiff in carrying out its business of development and sale of lots built by the Plaintiff on the Land.
Particulars(a)value of the land being as at the date of registration of the Taking Order;(b)business loss pursuant to section 241(6) of the Act including:i.loss of profit;ii.planning costs;iii.architectural costs; and iv. engineering and other costs associated with development of the land.(c) the Plaintiffs (sic) costs include the costs of the Director Gino Vespoli meeting with the agent, Council, the Metropolitan Redevelopment authority, site inspections, reviewing plans for quotation of works and submitting plans for approval, together with and meeting with construction team including the construction Manager for the development of the Land, negotiating with the owner, and negotiations with prospective purchasers and purchasers of end lot sales;
(d) meeting and discussing with a Town Planner, Architect and Estimator to achieve the approval for the Development of the land, the cost of which will be provided before trial in respect of the full amount of the business losses caused by the Taking of the Land as set out in clause 23(a);
(e) settlement costs for the purchase of the land will be provided prior to trial;
(f) interest on loans for the period between the purchase of the Land and the date of the discharge of the mortgages will be provided prior to trial;
(g) solatium equal to 10% of the value of the entire claim or such higher amount as allowed by the Court pursuant to sections 241(8) and 241(9) of the Act;
(h) interest pursuant to the provisions of the Act, or alternatively pursuant to section 23 (sic) of the Supreme Court Act 1935 (WA) from the date of the claim until satisfaction of the claim.
AND THE PLAINTIFF CLAIMS
A. Compensation pursuant to section 241 (6) (9) and (11) of the Act,
less the Advance Payment already received;B. Solatium;
C. Interest; and
D. Valuation costs, legal costs and other professional costs incurred by reason of the Taking.
It was accepted on Samsara's behalf that the claim for settlement costs incurred on the purchase of the Land and references to those in paragraph 23(b) and in subparagraph (e) of the particulars to paragraph 23 are liable to be struck out. It was also accepted that the prayer for relief should be amended to delete the reference to, and claim for, 'professional costs', which it accepts are claimable as part of any costs assessment.
It was accepted on behalf of the PTA that, to the extent Samsara is permitted to pursue its claim for further compensation, it is entitled to also pursue its claims for interest and solatium in relation to any further compensation allowed.
The submissions
I do not repeat all of the submissions made. They are set out in the extensive written submissions filed on behalf of each party, as expanded upon in oral submissions. What follows is a summary.
I will first outline Samsara's submissions as to why it says it is entitled to further compensation. I will then outline why the PTA says it is not, and Samsara's claim should be summarily dismissed or struck out in whole or part.
Samsara's submissions
In summary, Samsara submits that:
1.As a developer, its business was to develop land and sell the developed lots for a profit. Samsara purchased the Land as part of its business as a developer to develop it into lots for sale.
2.Samsara entered into a contract to purchase the Land on 3 April 2019 for a purchase price of $1,450,000 plus GST. On 25 October 2019, Crosslinks Inc offered to purchase one of the proposed strata lots for $2,989,220 plus GST, and Samsara agreed to build an office suite to Crosslinks' specifications.
3.Samsara subsequently entered into the Section 168 Agreement, on 25 September 2020, pursuant to which it received a payment of $1,595,000 plus GST together with recoupment of only those expenses it had actually incurred as at the date of taking. It now seeks to recover 'damage caused by lost opportunity', which it claims it is entitled to pursuant to s 241(6) of the LAA.
4.The opportunity Samsara says it has lost is to develop the Land and to derive a profit from the sale of the developed 'end lots', which it submits were part of its 'stock in trade'. Samsara claims (though does not plead) that it is entitled to be compensated for this under s 241(6)(b), which provides for compensation for loss or damage sustained by reason of 'disruption and reinstatement of a business'.
5.Samsara is entitled to be compensated for the loss of its 'stock in trade', which it contends is a real loss that it had suffered, as at the taking date, or that would be suffered by it, referring to Edelman J's analysis of losses recoverable under s 241(6)(e) in Lenz Nominees.[26]
6.Samsara is also entitled to:
(a)the cost of time spent by it in relation to the development of the Land, including considering the development potential of the Land, negotiating its purchase, negotiating with purchasers of the lots to be developed and determining the cost of development;
(b)interest on loans;
(c)loss of revenue, including profits on the sale of the lots that were to be developed; and
(d)solatium and interest on the compensation ultimately determined.
[26] Lenz Nominees [423].
Put at its simplest, Samsara's position is that its lost opportunity to develop and sell the completed strata lot and unit to Crosslinks represents a loss that has been sustained. It contends that although the quantification of that loss is future looking, the loss itself had been sustained at the date of the taking. In support of that position, Samsara relies on the High Court's decision in Sellars v Adelaide Petroleum NL,[27] in which Brennan J stated:
Provided an opportunity offers a substantial, and not merely speculative, prospect of acquiring a benefit that the plaintiff sought to acquire or of avoiding a detriment that the plaintiff sought to avoid, the opportunity can be held to be valuable. And, if an opportunity is valuable, the loss of that opportunity is truly "loss" or "damage".[28]
[27] Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 (Sellars v Adelaide Petroleum).
[28] Sellars v Adelaide Petroleum 364 (Brennan J).
Samsara submits that:
1.The actual quantum of the business loss does not need to have been realised for there to have been compensable loss and damage.
2.The assessment and quantification of the 'damage' is undertaken by looking at the likelihood of future events, but it is not a future loss. Rather, the loss of the opportunity to develop and sell the developed lot is a loss sustained by Samsara as at the taking date. It is at that date that Samsara lost the opportunity to develop and sell the strata lot to Crosslinks and sustained the loss it seeks to be compensated for.
3.While its position is unique, it cannot be said that the categories of claim that fall under the statutory provisions are closed. There is nothing in the wording of s 241(6) which would preclude a claim in the nature of loss of opportunity.
The PTA's submissions
The PTA's overarching submission is that Samsara's claims are so clearly untenable that they cannot succeed and should be dismissed.
The PTA does not admit but accepts, for the purpose of the applications, that it may be assumed that Samsara was engaged in land development and that before Samsara learned of the proposed taking of the Land, it intended to build a two-storey building on the Land with 12 office suites, which it intended to sell.
In relation to Samsara's claim for business losses and its loss of opportunity to develop and sell the lots, the PTA referred, amongst other matters, to there being no evidence of a signed agreement between Samsara and Crosslinks for the sale of the proposed first floor office suite or in relation to its fit out.[29] It also says that the development approval issued on 30 May 2018 (defined in the Defence as the 2018 DA)[30] was conditional and time limited. If Samsara did not substantially commence development in accordance with the 2018 DA within two years from 30 May 2018, it would have required further approval from the MRA.[31]
[29] Defendant's written submissions [51]; Cobbett Affidavit SJC-06, pages 366 - 381.
[30] Defence [12(b)]. Metropolitan Regional Development Authority Approval to Undertake Development dated 30 May 2018: Cobbett Affidavit SJC-02, pages 304 - 312.
[31] Defence [14(b)].
However, the PTA accepts, for the purpose of the applications only, that it may be assumed that if the Land had not been taken, Samsara may have developed it and made a profit from its development and sale of the proposed first floor office suite to Crosslinks.
In summary, the PTA submits that:
1.The court need not resolve any factual controversies to determine the application.
2.Samsara is not entitled to any additional compensation beyond that paid under the Section 168 Agreement, being the amount of $1,917,553.27 paid by the PTA to Samsara on 28 October 2020.
3.Pursuant to s 241(1) of the LAA, in determining the amount of compensation, regard is to be had solely to the matters set out in s 241.
4.Section 241(2) provides for regard to be had to the value of the Land with any improvements as at one of the three alternative dates provided. Section 241(2)(b) provides that, in the case of an interest taken by agreement under s 168, the assessment date is the date of execution of the agreement, unless the agreement provides otherwise. Where an interest is not taken by an agreement under s 168 or for a railway or work authorised by a special Act, the assessment date is the date of the taking.
5.The provision of a specific date in s 241(2) reflects that, in assessing value, in accordance with the test in Spencer v The Commonwealth,[32] an assessment is required of what was known by the hypothetical purchaser and vendor at the time of the hypothetical bargain without regard to subsequent events.[33]
[32] Spencer v The Commonwealth [1907] HCA 82; (1907) 5 CLR 418, 432 (Griffiths J), 440 (Isaacs J).
[33] Referring to McKay [No7] [377] (Beech J); Kelliher v Commissioner for Main Roads [No 2] [2015] WASC 478 (Kelliher [No 2]) [116] ‑ [118] (Pritchard J).
6.In contrast, s 241(6) provides that, in determining the amount of compensation, regard is to be had to the loss or damage sustained by the claimant by reason of the matters specified in s 241(6)(a) ‑ (e). The plain meaning of s 241(6) is that, in determining the amount of compensation, regard may be had to loss or damage sustained by reason of the specified matters, irrespective of whether that loss or damage was sustained before or after the taking date.
7.Samsara's alleged loss of opportunity to profit from the sale of the developed Land and the sale of the proposed strata lot to Crosslinks does not fall within one of the matters specified and is not compensable under s 241(6) of the LAA.
8.It would be irrational to construe s 241(6) as conferring such an entitlement where s 241(2) already provides for a claimant to receive the value of the land, which is determined according to its highest and best use, including its potential as a development site.
9.Contrary to Samsara's submissions, the focus of the words 'loss or damage sustained' in s 241(6) is on loss or damage actually incurred, and the section does not permit a claimant to recover losses that have not actually been, or will not actually be, incurred. In this regard, the PTA also referred to and relied upon Lenz Nominees, in which Edelman J considered s 241(6) (and equivalent provisions considered in the authorities referred to) and concluded that s 241(6) was concerned with compensation for damage arising from interference with activities carried on by the claimant on the subject land.
10.As such, in addition to showing loss or damage has been sustained, it is necessary to establish that the loss or damage arises from interference with the activities carried out on the subject land and is of one of the kinds described in s 241(6)(a) ‑ (e). Samsara's alleged loss of opportunity does not fall within any of those subparagraphs.
11.The authorities relied upon by Samsara in support of its contention that it is entitled to be compensated for its loss of opportunity concern cases in which the measure of damages was to put the claimant in the position it would have been in but for the tort, misleading or deceptive conduct or breach of contract alleged. In contrast, s 241 provides specific 'heads' or kinds of loss or damage for which compensation may be awarded and does not provide for compensatory damages entitling a claimant to be placed in the position it would have been in if the taking had not occurred.
12.It is clear on a review of the relevant authorities that the loss of an opportunity to derive future revenue had the Land not been taken is not loss or damage sustained within the meaning of s 241(6).[34]
13.It would be illogical to construe s 241(6) as permitting developers to claim 'business losses' for proposed developments but preclude such claims by other landowners because the land is not their 'stock in trade' as contended by Samsara.
14.To construe s 241 as contended by Samsara to allow a claimant to recover the value of the land, taking into account its development potential, under s 241(2) and also to recover profits that would have been made if the taking had not occurred under s 241(6), would result in an unintended windfall to the claimant.
15.As to the claim for interest on loans for the period between the purchase of the Land and the date on which compensation was paid, such does not arise from interference with activities on the Land and is not one of the heads or kinds of loss included in the subparagraphs of s 241(6).
16.As to the cost of time spent by Samsara's director, Mr Vespoli, no such loss is identified as having been sustained. In any event, such is not a loss included in the subparagraphs of s 241(6) of the LAA.
[34] Referring to DBW [184], [194] - [195], [433] (K Martin J); Kelliher [No 2] [157].
The issues
The key issues that arise for determination, at this stage, are whether Samsara's claimed loss of opportunity represents a loss that has been sustained within the meaning of s 241(6), and is therefore compensable under s 241 of the LAA.
More broadly, I am to determine whether Samsara's claim is so clearly untenable and unlikely to succeed at trial that summary judgment should be entered for the PTA, or the statement of claim should be struck out and the action dismissed.
If I reach the conclusion that Samsara's claim should not be summarily dismissed or struck out in its entirety, it remains for me to determine whether all or any of paragraphs 19 to 23 of the amended statement of claim and paragraphs A to D of the prayer for relief should be struck out.
Determination
Summary judgment and strike out applications
As has been noted, summary judgment is to be granted only where it is clear there is no real question to be tried. In the case of summary dismissal of a claim, the court must be satisfied on the materials before it that it has been demonstrated that the plaintiff's action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail.
Questions of fact and law are raised on the pleadings as to whether Samsara has suffered the losses claimed and whether such are losses it is entitled to be compensated for under s 241(6) of the LAA.
The PTA does not admit, but accepts for the purpose of the application, that it may be assumed that if the Land had not been taken, Samsara may have developed it and made a profit from its development and the sale of the proposed first floor office suite to Crosslinks.
It submits, in effect, that it is not necessary to resolve any factual questions as, on a proper construction of s 241(6) of the LAA, Samsara's claims for compensation in respect of the claimed business losses are so clearly untenable that the action should not be allowed to proceed to trial and should be dismissed.
As the authorities referred to make clear, the LAA does not entitle a dispossessed landowner to be compensated for all or any loss and damage suffered. A claim for compensation under s 241 of the LAA is to be distinguished from a claim for damages at common law.
In Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority,[35] the High Court stated in relation to compensation for resumption or compulsory acquisition of land 'there can be no "common law principle" which is engaged in resumption cases "because compulsory acquisition and compensation for it are entirely creations of statute"'.[36]
[35] Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259 (Walker).
[36] Walker [29], citing Rugby Joint Water Board v Shaw-Fox[1973] AC 202, 214.
It is well established that discerning the meaning of a statutory provision starts with a consideration of the ordinary meaning of the words used, considered in their context. The context includes matters such as the provisions of the statute as a whole, how the provisions work together and the purpose for which the statute was enacted.[37]
[37] Kelliher [No 2] [140], citing Theiss v Collector of Customs [2014] HCA 12; (2012) 250 CLR 664 [22] ‑ [23]; CIC Insurances Ltd v Bnkstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ); Project Blue Sky Inc v Australian Boroadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381 (McHugh, Gummow, Kirby & Hayne JJ).
As stated by Pritchard J in Kelliher [No 2], in considering the context of s 241 of the LAA,[38] it is clear from s 241(1) that the purpose of s 241 as a whole is to identify those matters which are to be taken into account in determining the amount of compensation to be awarded for an interest in land taken under Part 9 of the LAA.
[38] Kelliher [No 2] [156]
Beech J stated in McKay [No 7][39] that s 241(1) makes s 241 an exhaustive statement of the matters to which regard may be had in determining the amount of compensation to be awarded.[40]
[39] McKay [No 7] [141], [2831].
[40] See also DBW [195].
In Kelliher [No 2], Pritchard J rejected the plaintiffs' submission to the effect that the purpose of the LAA 'is to ensure that a dispossessed landowner is fully compensated', stating (among other things):[41]
[157]… s 241 does not provide 'full compensation' or compensation for 'any damage' suffered by the owner of land which is taken for public work. On the contrary, the various subsections in s 241 provide specific 'heads' of damage for which compensation may be awarded.
[41] Kelliher [No 2] [157].
The following requirements may be distilled from the authorities:
1.On a proper construction, s 241(6) allows the court to award compensation for any loss or damage sustained by the claimant by reason of any of subparagraphs (a) - (e).[42]
2.A claim under s 241(6) requires proof that the claimant has sustained loss or damage.[43]
3.In Lenz Nominees,[44] in considering a claim for compensation under s 241(6)(e), Edelman J stated that each of s 241(6)(a) ‑ (d) is concerned with compensation for damage arising from interference with activities carried on by a claimant on the subject land. His Honour referred in his analysis to Konowalow & Felber v Minister for Works,[45] in which Virtue J said:[46]
In each case there has been some activity on his part carried on on the land; he has used the land to a particular purpose and the resumption has interfered with this and he is entitled to compensation because of what it is necessary for him to do in respect of such interference, or because of money which he has spent on activity having been thrown away by reason of the resumption.
[42] McKay [No 7] [2832].
[43] McKay [No 7] [2834] - [2835]; Lenz Nominees [425].
[44] Lenz Nominees [417] - [420].
[45] Konowalow & Felber v Minister for Works [1961] WAR 40, 42 - 43.
[46] In relation to s 63(aa)(i) - (v) of the Public Works Act 1902 - 1956 (WA), which Edelman J noted was in very similar terms to s 241(6) of the LAA.
In Lenz Nominees, Edelman J said:[47]
423Section 241(6)(e) does not permit the recovery of losses which have not been suffered for several reasons. First, s 241(6)(e) is concerned with loss or damage 'sustained' by the claimant. The focus of these introductory words of the section is upon loss or damage actually incurred. The words of s 241(6)(d) do not detract from this. Those words refer to architect's fees or quantity surveyor's fees 'actually incurred by the claimant in respect of proposed buildings or improvements'. The reference to 'actually incurred' narrows those fees which are recoverable. This is perhaps in contrast with s 241(6)(c) which may include future lost profits from the termination of building contracts. Or it could be to emphasise that only those fees incurred prior to the Taking are recoverable.
[47] Lenz Nominees [423].
His Honour went on to say, among other things, that s 241(6)(e) requires that real loss has been suffered or will be suffered before an award of compensation can be made.[48]
[48] Lenz Nominees [425].
In DBW,[49] Kenneth Martin J said that Edelman J's observations at [423] in Lenz Nominees by reference to 'sustained' in the preface to s 241(6)(e) must be equally applicable by parity of reasoning to a claim under s 241(6)(b). In DBW the plaintiff sought compensation under s 241(6)(b) for 'lost income' for loss of future revenue obtainable upon profitable contracts it believed it would likely have obtained from a third party for storage of materials, had the taking not occurred. It claimed to have lost the potential future contracts and associated revenue because it did not have the storage space available at the relocated business premises.
[49] DBW [182].
His Honour concluded in DBW that the 'conceptual character of the as-articulated loss of chance claim … did not align to the legal character of a permissible claim for loss or damage that has been sustained, under s 241(6) of the LAA.' He said, in his view, the lost future revenue opportunity claim did not meet the threshold textual criteria of s 241(6)(b) in regard to showing loss or damage suffered by reason of disruption and reinstatement of a business. He said the 'loss of chance of gaining a future assumed profitable contractual relationship, is a claim of a different ilk to a consequential loss and damage cause of action, as envisaged by s 241(6) of the LAA'.[50]
[50] DBW [184] - [186].
The PTA relies on DBW in submitting that Samsara's alleged loss of a future opportunity to obtain additional revenue is not a claim for loss or damage that has been sustained under s 241(6)(b).
I am not persuaded it goes that far. Although the claim in DBW and Samsara's claim are both referred to as a claim for compensation for a loss of opportunity, the focus of the conclusions reached by Kenneth Martin J in DBW is on the facts of that particular case.
The court considered whether the loss claimed was a loss sustained having regard to the facts and after hearing evidence relating to the alleged loss and damage the subject of the claim.
The business losses claimed by Samsara are losses that it claims are recoverable as losses sustained as a result of disruption to its business as a land developer as it is no longer able to continue with the development of the Land. Its position is that this is distinct from the highest and best use of the Land as a component of the assessment of the Land's market value and the authorities relied upon by the PTA.
Samsara says that the loss of opportunity to profit from the development of the Land is an interruption to and a disruption of its business. This raises a question as to whether the losses claimed fall within 'disruption and reinstatement of a business' and as to the activities carried on on the land and whether the taking has interfered with those activities. As stated by Virtue J in Konowalow there may be an entitlement to compensation because of money which has been spent on activity having been thrown away by reason of the taking.
The issue of whether Samsara's business as a developer involved activity on or concerning the Land taken that has been disrupted by the taking is not one, in my view, that ought be determined without consideration of the relevant factual context.
No authority has been identified to directly support recovery of the business losses claimed by Samsara. The arguments raised by Samsara that the Land is its stock in trade and to the effect that it is entitled to compensation for time and money spent that has been 'thrown away' by reason of the taking have not, as far as I am aware, previously been directly considered by the court. As such, the prospects of this aspect of Samsara's claim, if permitted to proceed, are unclear. However, to use the words of the Court of Appeal in Hesse v Hardie,[51] whilst there may be an element of novelty to the claims, I do not consider they are untenable or unarguable so as to justify summary dismissal.
[51] Hesse v Hardie [2023] WASCA 173 [60].
I am unable to conclude on the material before me that there is a sufficiently high degree of certainty as to the ultimate outcome of the proceeding or that Samsara's claim is so clearly untenable that it must fail. There are questions which, in my view, should not be determined summarily, in an evidential vacuum and without consideration of the facts. This includes whether Samsara lost the opportunity to develop and sell the unit to Crosslinks and whether, as a matter of construction, such a loss is compensable under s 241(6) of the LAA.
In my view, the question as to whether Samsara's loss of opportunity to develop and sell the completed strata lot and unit to Crosslinks represents a loss that has been sustained is not one that can be determined summarily. Nor is the question as to whether the opportunity offers a substantial, and not merely speculative, prospect of Samsara acquiring a benefit so as to be valuable and amount to loss or damage.
Similarly, the question of whether the amount agreed and paid in satisfaction of the land value of the Land accounted for the development potential and the loss now claimed is a question that should, in my view, be determined at trial and not in an evidential vacuum.
In relation to the constructional question, I refer to and respectfully adopt Lundberg J's analysis and reasons in Palmer v Citic Ltd [No 13][52] and Fremantle Port Authority v Cosco Shipping Bulk (South East Asia) Pte Ltd.[53] Where constructional questions are raised in the context of a summary dismissal or strike-out application, the court may exercise its discretion to refrain from determining the issue at an interlocutory stage, particularly where the question is of some complexity. In my view, this is such a case.
[52] Palmer v Citic Ltd [No 13] [2024] WASC 325[62] - [63], referring to BGC Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2019] WASC 248 [77] (Smith J), upheld on appeal in NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [94] (Murphy JA) and [130] - [132] (Beech and Vaughan JJA); Fremantle Port Authority v Cosco Shipping Bulk (South East Asia) Pte Ltd [2023] WASC 95 (Fremantle Port Authority v Cosco) [19] (Lundberg J); Doyle's Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) [2021] NSWCA 246 [4] ‑ [5] (Bell P).
[53] Fremantle Port Authority v Cosco [19] ‑ [21] (Lundberg J).
I do not consider it is appropriate for the court to undertake the task of statutory construction summarily, in the abstract, without the benefit of evidence as to the factual context.
Also, as has been observed, the court should be careful not to risk stifling the development of the law by summarily rejecting a claim if there is a reasonable possibility that the law is developing. Summary processes must not be used to stultify the development of the law where any existing authority may be qualified or further explained.
I must also proceed with caution before striking out the statement of claim on the ground it does not disclose a reasonable cause of action. While the court may determine questions of law in determining an application for summary judgment and in considering whether a pleading discloses a reasonable cause of action, it would usually be appropriate to determine such questions following a trial.[54] This is particularly so in this case for the reasons I have outlined.
[54] Vantage Holdings [60(d)], citing Great Southern Finance Pty Ltd (in liq) v Rhodes [2014] WASC 431 [26] (Beech J) applying Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57] (Gaudron, McHugh, Gummow & Hayne JJ); Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46] (Gleeson CJ, Gummow, Hayne & Crennan JJ).
For those reasons, I am not satisfied that it is clear there is no real question to be tried or that Samsara's claim is untenable and bound to fail such that it ought not be allowed to proceed or should be struck out. The applications for summary judgment and dismissal of Samsara's claims should be and are dismissed.
The alternative strike out application
Having determined that Samsara's claim should not be summarily dismissed or struck out in its entirety, I turn to consider the PTA's alternative application to strike out paragraphs 19, 20, 21, 22 and 23 of the ASOC and paragraphs [A] - [D] (inclusive) of the prayer for relief.
It is evident from the submissions made on behalf of the PTA that although, adopting counsel for the PTA's words, the alleged loss is pleaded in convoluted terms, the PTA has been able to discern the nature of Samsara's claims. However, this appears to be the result of a significant exchange of correspondence between the parties' lawyers as opposed to the clarity of the pleading and the subsequent amendments to it.
There are a number of difficulties with the paragraphs of the ASOC the subject of the PTA's alternative strike out application. In many respects, as identified in more detail in relation to each particular paragraph, the pleading, as it stands:
(a)is at too high a level of generality and lacks clarity, which may prejudice, embarrass or delay the fair trial of the action;
(b)does not set out or particularise all of the material facts relied upon sufficiently so as to define and limit the issues for decision, provide a basis for determining discovery and the admissibility of evidence for trial, and to put the PTA on notice of the case it must meet; and
(c)does not specifically identify the provision under which the relief or remedy is claimed. Although Samsara has clarified in its submissions that it relies on s 241(6)(b), that is not presently pleaded.
Paragraphs 19, 20 and 22
As presently pleaded, each of the matters stated above apply to paragraphs 19, 20 and 22. As such, I am satisfied that each of those paragraphs should be struck out.
Paragraph 21
As presently pleaded, paragraph 21 is vague and pleaded at too high a level of generality. It is lacking in clarity and devoid of particulars in relation to:
(a)'the contract for the sale agreement of the entire first floor of the proposed development' and the 'arrangements' for the fit out referred to;
(b)the pleaded expectations of Samsara in relation to the development of the Land;
(c)the material facts and basis upon which it is alleged that the Land is Samsara's stock in trade and upon which it is alleged that is a compensable loss;
(d)the specific provision under which the alleged loss is claimed and, if s 241(b) of the LAA, the facts relied upon to support a plea that Samsara sustained the loss or damage by reason of disruption and reinstatement of its business.
Paragraph 21 is also devoid of any plea as to causation of the alleged loss and damage Samsara seeks to recover.
For these reasons, paragraph 21 also suffers from the deficiencies set out in [85] and should be struck out.
Paragraph 23
In paragraph 23, Samsara pleads in broad terms, and with no particulars, that it claims compensation in accordance with section 241(6), (9) and (11) of the LAA. It does not identify which subparagraph(s) of s 241(6) are said to apply.
Then, set out in subparagraphs, in very broad unparticularised terms are the business losses Samsara claims to have suffered and in respect of which it seeks compensation. There are difficulties with the numbering of the sub-paragraphs, which is confusing. I will deal with each of the sub-paragraphs in turn, as they have been referred to in Samsara's pleading.
In paragraph 23(a), Samsara pleads and seeks to advance a claim for the cost of the time it spent immediately before the purchase of the Land up to the date of the taking of the Land. The cost of time claimed includes costs incurred by it in respect of:
1.Identifying and considering the Land for purchase.
2.Analysis and instruction of experts to consider and assess the development potential of the Land and the viability of its development.
3.Negotiations with the owner for the purchase of the Land and with end lot purchasers for the sale and construction of the strata lots.
4.Working out the costs for developing the site.
It appears, though is not immediately apparent that the particulars of the cost of time claimed are set out in the second subparagraphs (c) and (d).
This aspect of Samsara's claim is not clearly pleaded. Based on the submissions made, Samsara's case is, in essence, that these costs were incurred by it and are recoverable as losses incurred as a result of disruption to its business as a land developer, which have been lost (thrown away) as it is no longer able to continue with the development of the Land.
However, the plea is, as it stands, at too high a level of generality and lacking in particulars such that it is liable to prejudice, embarrass or delay the fair trial of the action. The alleged losses and particulars of them, including when the losses are said to have been incurred, are matters that should be in Samsara's knowledge and ability to plead and particularise, being costs it says it has already incurred.
In subparagraph 23(b), Samsara pleads and seeks to claim settlement costs incurred on the purchase of the Land. Subparagraph 23(e) states that Samsara will provide particulars of those costs prior to trial.
Samsara has accepted that paragraphs 23(b) and (e) and 'professional costs' in paragraph D of the prayer for relief should be struck out.
In the first subparagraph 23(c), Samsara pleads and seeks to advance a claim for interest on loans for the period between the purchase of the Land and the date on which compensation was paid. Subparagraph 23(f) states that Samsara will provide particulars of such interest prior to trial.
I am not persuaded that interest on loans is recoverable under s 241(6)(b), or any of the other specific heads of loss provided in s 241(6) of the LAA. However, for the reasons already given in relation to summary dismissal of the claims, it is not appropriate in my view to express any concluded view, at this stage, so as to strike out the subparagraph as disclosing no reasonable cause of action.
However, the subparagraph should be struck out. As presently pleaded, it suffers the same fate as the preceding subparagraphs. It is pleaded at too high a level of generality and completely lacking in particulars in relation to the loans the subject of the claim and the interest claimed. These are matters that will be known to Samsara and the particulars ought to be provided.
In the first subparagraph 23(d), Samsara claims business losses 'represented by the loss of the opportunity for the value of revenue less expenses on the sale of end lots as [its] "stock in trade" in carrying out its business of development and sale of lots built by [it] on the Land'.
As already outlined, Samsara submits, though it is not clear as presently pleaded, that the claimed loss of opportunity to profit from the development of the Land is recoverable as a result of the interruption to, and a disruption of, its business caused by the taking of the Land.
I have already referred to the general lack of pleading as to causation of any such loss. Further, as already stated, no authority has been identified that directly considers or supports recovery of such a loss. As such, the prospects of this aspect of Samsara's claim if permitted to be clarified by way of further amendment are unclear. However, for the reasons already stated, I am not satisfied it should be struck out as disclosing no reasonable cause of action or on the basis the claim is bound to fail.
However, it should be struck out on the basis that, as presently pleaded, it is liable to embarrass or delay the fair trial of the action because it is vague and lacking in particulars. The particulars provided in the following subparagraphs are inadequate.
In subparagraph (g), Samsara pleads it is entitled to solatium and, in subparagraph (h), to interest pursuant to the provisions of the LAA, alternatively s 23 (sic) of the Supreme Court Act 1935 (WA). Presumably this is a typographical error and intended to be a reference to s 32 of the Supreme Court Act.
In the prayer for relief, Samsara claims:
A. Compensation pursuant to section 241 (6) (9) and (11) of the Act.
B. Solatium.
C. Interest.
D. Valuation costs, legal costs and other professional costs incurred by reason of the taking.
Paragraph A of the prayer for relief should be amended to make clear which subsection of s 241(6) the relief claimed is sought.
As to paragraphs B and C of the prayer for relief, the PTA accepts that Samsara is permitted to pursue a claim for interest and solatium in relation to any further compensation that may be allowed. As such, I would not strike out those paragraphs of the prayer for relief which claim Solatium and Interest. However, in amending the pleading, Samsara should state with more particularity the basis upon which each are claimed.
Samsara has indicated that it intends to amend paragraph D of the prayer for relief, including to remove the reference to professional costs.
For these reasons, paragraphs 19 - 23 of the ASOC will be struck out. However, Samsara will have leave to further amend the ASOC to address the deficiencies in those paragraphs and corresponding amendments to the prayer for relief.
Conclusion and orders
For these reasons:
(a)the PTA's applications for summary judgment, strike out of the statement of claim and dismissal of the action are dismissed;
(b)the PTA's alternative application to strike out particular paragraphs of the statement of claim is allowed;
(c)paragraphs 19 - 23 of the ASOC are struck out; and
(d)Samsara will have leave to further amend the ASOC.
I will hear from the parties as to the final form of the orders to be made and in relation to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BF
Associate to Master Russell
31 JANUARY 2025
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