Sun v Transport for NSW

[2022] NSWLEC 1599

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Sun v Transport for NSW [2022] NSWLEC 1599

Hearing dates:

Conciliation conference on 1 September 2022, 19 September 2022, 23 September 2022, 27 September 2022, and 6 October 2022.

Date of orders:

1 November 2022

Decision date:

01 November 2022

Jurisdiction:

Class 3

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Compensation is determined in the sum of $1,647,677.88 pursuant to s 55 of the Land Acquisition (Just Terms Compensation) Act 1991 for the acquisition of Lot 7 in Deposited Plan 23676 being the whole of the land known as 12 Webb Street, Riverwood NSW, 2210.

(3) The Respondent is to pay the Applicant the amount of compensation referred to in Order (1), less any advance amount of compensation and/or interest thereon already paid pursuant to s 68 of the Land Acquisition (Just Terms Compensation) Act 1991, plus statutory interest on the balance of compensation calculated in accordance with ss 49 and 50 of the Land Acquisition (Just Terms Compensation) Act 1991 within 28 days of the later of:

(a) The date of these Orders; and

(b) The date on which the Respondent received a duly executed deed of release and indemnity together with direction as to payment from the Applicant.

Catchwords:

COMPULSORY ACQUISITION – conciliation conference – compensation - agreement between the parties – orders

Legislation Cited:

Land Acquisition (Just Terms Compensation) Act 1991 ss 10-13, 19, 20, 41, 54, 55, 56, 59, 68

Land and Environment Court Act 1979 ss 19, 24, 25, 34

Category:

Principal judgment

Parties:

Chang Sun (Applicant)
Transport for NSW (Respondent)

Representation:

Counsel:
M Seymour (Applicant)
J McKelvey (Respondent)

Solicitors:
Newhouse & Arnold Solicitors (Applicant)
Hunt & Hunt Lawyers (Respondent)

File Number(s):

2022/130814

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicant has lodged an appeal objecting to the amount of compensation payable under the Valuer General’s Determination of Compensation dated 2 February 2022 in respect of the compulsory acquisition by the Respondent of land known as Lot 7 in Deposited Plan 23676 known as 12 Webb Street Riverwood NSW 2210 (the Land):

1. The proceedings are brought pursuant to s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act);

2. The proceedings fall within Class 3 of the Court’s jurisdiction pursuant s 19(e) of the Land and Environment Court Act 1979 (LEC Act).

3. The statutory power or function to be exercised in determining the proceedings is ss 24(1)-(2),25(1) and s 34(3)(a)-(b) of the LEC Act, and s 55(a)-(f) of the Just Terms Act.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 1 September 2022, 19 September 2022, 23 September 2022, 27 September 2022, and 6 October 2022. I presided over the conciliation conference.

3. At or after the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved upholding the appeal and awarding compensation in full and final settlement of the Applicant’s claim pursuant to ss 54, 55,56 and 68 of the Just Terms Act for the acquisition of the Land.

4. Under s 34(3)(a) and (b) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under ss 24, 25 and 34(3) of the LEC Act, and s 55(a)-(f) of the Just Terms Act to uphold the appeal and determine the compensation for the compulsory acquisition of the Land.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be:

1. The Respondent commenced negotiations with the Applicant in accordance with the requirements of s 10A(4) of the Just Terms Act on or about 17 February 2021.

2. The Minister for Transport and Roads and the Minister for Water, Property and Housing, being the Minister responsible for administering the Just Terms Act, approved the shortening of the minimum period of 90 days for a Proposed Acquisition Notice (s 13(2)(b) of the Just Terms Act) to 30 days.

3. The Respondent issued a Proposed Acquisition Notice (PAN) pursuant to ss 11 and 12 of the Just Terms Act on 13 July 2021.

4. The PAN was served on the Applicant, as owner of the fee simple, and Westpac Banking Corporation as the mortgagee of the Land.

5. The Land was acquired by the Respondent by publication in the NSW Government Gazette on 29 October 2021, being 108 days after the issue of the PAN notice, satisfying the requirements under s 13 of the Just Terms Act, and in accordance with s 19 of the Just Terms Act. In accordance with s 20 of the Just Terms Act the title to the Land was transferred to the Respondent upon the acquisition being published in the NSW Government Gazette.

6. The Valuer General carried out an independent valuation of the Land pursuant to the provisions of the Just Terms Act, and in accordance with s 41(2) and (d) of the Just Terms Act and served his Determination of Compensation dated 2 February 2022 on 7 February 2022 on the Applicant.

7. These proceedings were commenced on 6 May 2022, within 90 after the Applicant received the Determination of Compensation, in accordance with the time provision in s 66 of the Just Terms Act.

8. The parties have reached the following agreement: the sum of $1,647,677.88(incl of GST) to be paid by the Respondent to the Applicant in full and final settlement of the Applicant’s claim under the Just Terms Act. The sum of $1,647,677.88 is the total of the following amounts pursuant to the relevant sections of the Just Terms Act set out below:

1. Market value of the Land pursuant to s 56; $1,615,600.00

2. Disturbance pursuant to s 55 (d), as defined under s 59:

1. s 59(1(a) Legal fees $25,317.88

2. s 59(1)(b) Valuation fees $6,600.00

3. s 59(1)(f) Interpreter fees $160.00

6. As set out above the parties have explained, and I am satisfied, as to how the jurisdictional prerequisites have been satisfied.

7. 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 and ss 24, 25 and 55 of the Just Terms Act.

8. 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)(a) and (b) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notes

9. The Court notes:

1. The Respondent has agreed to pay the Applicant’s reasonable costs as agreed or assessed 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), the sum of $1,333,870.09 plus statutory interest has already been paid to the Applicants leaving the sum of $313,807.79 to be paid; and

3. Statutory interest pursuant to ss 49 and 50 of the Land Acquisition (Just Terms Compensation) Act 1991 is payable on the sum of $313,807.87.

Orders

10. The Court orders:

1. The appeal is upheld.

2. Compensation is determined in the sum of $1,647,677.88 pursuant to s 55 of the Land Acquisition (Just Terms Compensation) Act 1991 for the acquisition of Lot 7 in Deposited Plan 23676 being the whole of the land known as 12 Webb Street, Riverwood NSW, 2210.

3. The Respondent is to pay the Applicant the amount of compensation referred to in Order (2), less any advance amount of compensation and/or interest thereon already paid pursuant to s 68 of the Land Acquisition (Just Terms Compensation) Act 1991, plus statutory interest on the balance of compensation calculated in accordance with ss 49 and 50 of the Land Acquisition (Just Terms Compensation) Act 1991 within 28 days of the later of:

1. The date of these Orders; and

2. The date on which the Respondent received a duly executed deed of release and indemnity together with direction as to payment from the Applicant.

…………………………

M Peatman

Acting Commissioner of the Court

**********

Amendments

09 November 2022 - Pursuant to UCPR r 36.17, the Court amends Court Order (2) of the judgment to correct a typographical error

Decision last updated: 09 November 2022