Shu v Cumberland Council

[2021] NSWLEC 1459

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Shu v Cumberland Council [2021] NSWLEC 1459

Hearing dates:

Conciliation Conference on 14 July 2021

Date of orders:

11 August 2021

Decision date:

11 August 2021

Jurisdiction:

Class 1

Before:

Kempthorne AC

Decision:

The Court orders:

(1) Market Value determined in the sum of $925,000.00, pursuant to s 55(a) of the Land Acquisition Act (Just Terms Compensation Act 1991 NSW (Just Terms Act), for the acquisition of Lot 2 in Section 16 Deposited Plan 939788 otherwise known as 45 Karrabah Road, Auburn in the State of New South Wales.

(2) Legal Costs determined in the sum of $16,831.50 (inclusive of GST), pursuant to s 59(1)(a) of the Just Terms Act.

(3) Valuation costs determined in the sum of $6,600.00 (inclusive of GST), pursuant to s 59(1)(b) of the Just Terms Act.

(4) Stamp Duty determined in the sum of $36,852.00 pursuant to s 59(1)(d) of the Just Terms Act.

(5) Other financial costs determined in the sum of $16,145.60 (inclusive of GST), pursuant to s 59(1)(f) of the Just Terms Act.

(6) Disadvantage resulting from relocation determined in the amount of $81,003.00 pursuant to s 60 of the Just Terms Act.

(7) Within 28 days of the later of either the date the Court issues sealed Consent Judgement Orders or the date the Respondent receives a duly executed deed of release and indemnity and direction as to payment form, the Respondent must pay to the Applicant the amount of compensation referred to in Orders (1) to (6) above, less the advance payment already made, plus statutory interest calculated in accordance with ss 49 and 50 of the Just Terms Act.

(8)    The Respondent is to pay the Applicants’ cost of the proceedings, as agreed or failing agreement as assessed.

Catchwords:

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

Legislation Cited:

Land Acquisition (Just Terms Compensation) Act 1991, ss 43, 47, 48, 49, 50, 54, 55, 56, 58, 59, 60, 66, 67

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

David Shu (First Applicant)
Jingru Li (Second Applicant)
Cumberland Council (Respondent)

Representation:

Counsel:
D Newhouse (Solicitor) (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
Newhouse & Arnold Solicitors (Applicant)
Barter Perry (Respondent)

File Number(s):

2021/111108

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 3 proceedings comprise an objection by David Shu and Jingru Li (the Applicants) to an offer of compensation arising from the compulsory acquisition by Cumberland Council (the Respondent) of Lot 2 in Section 16 in Deposited Plan 939788 being the property known as 54 Karrabah Road, Auburn pursuant to the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act).

Jurisdiction Pre-requisites

2. The Valuer General of NSW (VG) on behalf of the Respondent assessed the amounts of compensation as follows:

s 55(a) Market Value

   $760,000.00

s 55(d) Disturbance

   $67,463.00

s 55(e) Disadvantage resulting from relocation

   $81,003.00

Total

   $908,466.00

3. The Applicants’ claim set out the amounts of compensation as below:

s 55(a) Market Value

   $1,038,000.00

s 55(d) Disturbance

   $84,423.50

s 55(e) Disadvantage resulting from relocation

   $81,003.00

Total

   $1,203,426.50

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties on 14 July 2021.

5. I presided over the conciliation conference.

s 34 Agreement

6. 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.

7. The terms of the decision agreed to by the parties are that the Respondent will pay to the Applicants the following amounts pursuant to the Just Terms Act:

1. The amount of $925,000.00 compensation, for the compulsory acquisition of Lot 2 in Section 16 Deposited Plan 939788 otherwise known as 45 Karrabah Road, Auburn.

2. The amount of $16,831.50 (inclusive of GST) for Legal Costs.

3. The amount of Valuation $6,600.00 (inclusive of GST) for Valuation costs.

4. The amount of $36,852.00 pursuant for Stamp Duty.

5. The amount of $16,145.60 (inclusive of GST) for Other financial costs.

6. The amount of $81,003.00 for the Disadvantage resulting from relocation.

7. The Applicants’ cost of the proceedings, as agreed or assessed.

8. 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 Just Terms Act to hear and dispose of the Applicants’ claim for compensation.

9. 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.

10. 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

11. The Court orders:

1. Market Value determined in the sum of $925,000.00, pursuant to s 55(a) of the Land Acquisition Act (Just Terms Compensation Act 1991 NSW (Just Terms Act), for the acquisition of Lot 2 in Section 16 Deposited Plan 939788 otherwise known as 45 Karrabah Road, Auburn in the State of New South Wales.

2. Legal Costs determined in the sum of $16,831.50 (inclusive of GST), pursuant to s 59(1)(a) of the Just Terms Act.

3. Valuation costs determined in the sum of $6,600.00 (inclusive of GST), pursuant to s 59(1)(b) of the Just Terms Act.

4. Stamp Duty determined in the sum of $36,852.00 pursuant to s 59(1)(d) of the Just Terms Act.

5. Other financial costs determined in the sum of $16,145.60 (inclusive of GST), pursuant to s 59(1)(f) of the Just Terms Act.

6. Disadvantage resulting from relocation determined in the amount of $81,003.00 pursuant to s 60 of the Just Terms Act.

7. Within 28 days of the later of either the date the Court issues sealed Consent Judgement Orders or the date the Respondent receives a duly executed deed of release and indemnity and direction as to payment form, the Respondent must pay to the Applicant the amount of compensation referred to in Orders (1) to (6) above, less the advance payment already made, plus statutory interest calculated in accordance with ss 49 and 50 of the Just Terms Act.

8. The Respondent is to pay the Applicants’ cost of the proceedings, as agreed or failing agreement as assessed.

…………………………

P Kempthorne

Acting Commissioner of the Court

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Amendments

12 August 2021 - Amended typographical errors in representation details.

Decision last updated: 12 August 2021