Trandos v Western Australian Planning Commission
[2004] WASCA 150
•13 JULY 2004
TRANDOS & ORS -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2004] WASCA 150
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 150 | |
| THE FULL COURT (WA) | |||
| Case No: | CIV:1497/1996 | 19 MARCH 2004 | |
| Coram: | STEYTLER J TEMPLEMAN J SIMMONDS J | 13/07/04 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Interest allowable under s 32 of the Supreme Court Act Interest for delay not allowable | ||
| B | |||
| PDF Version |
| Parties: | NICHOLAS TRANDOS STAVROS TRANDOS HARISI TRANDOS WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Reservation and acquisition of land Price Referral to Full Court of question whether interest payable by planning authority Reasons of Full Court in Mount Lawley Pty Ltd v Western Australian Planning Commission adopted No entitlement to interest as part of price fixed under s 36(2a) and (2b) of Metropolitan Region Town Planning Scheme Act 1959 (WA) Interest on the price may be ordered pursuant to s 32 of Supreme Court Act 1935 (WA) |
Legislation: | Metropolitan Town Planning Scheme Act 1959 (WA), s 36 Supreme Court Act 1935 (WA), s 32 |
Case References: | Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149 Ansons Pty Ltd v Merlex Corporation Pty Ltd (2001) 162 FLR 443 Cornell v Town of East Fremantle (2003) 131 LGERA 20 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111 Drower v Minister of Works and Development [1980] 2 NZLR 691 Ester Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 Folkstone v Metropolitan Region Planning Authority [1968] WAR 164 Gould v Vaggelas (1985) 157 CLR 215 Haines v Bendall (1991) 172 CLR 60 Hill v Western Australian Planning Commission (2000) 107 LGERA 229 Kozaris v Roads Corporation [1991] 1 VR 237 Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57 MacDougall v Western Australian Planning Commission (2003) 129 LGERA 243 Mount Lawley Pty Ltd v Western Australian Planning Commission (2002) 123 LGERA 443 Ryan Nominees Pty Ltd v Western Australian Planning Commission [2003] WASCA 134 Sisters of Charity of Rockingham v The King [1922] 2 AC 315 Taylor v Johnson (1983) 151 CLR 422 Temwood Holdings Pty Ltd v Western Australian Planning Commission (2002) 25 WAR 484 The Aldora [1975] QB 748 The Commonwealth of Australia v SCI Operations Pty Ltd (1998) 192 CLR 285 Trandos v Western Australian Planning Commission (2001) 117 LGERA 257 Treloar v Ivory (1991) 4 WAR 318 Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520 Western Power Corporation v Normandy Power Pty Ltd [2002] WASC 113 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : TRANDOS & ORS -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2004] WASCA 150 CORAM : STEYTLER J
- TEMPLEMAN J
SIMMONDS J
- STAVROS TRANDOS
HARISI TRANDOS
Plaintiffs
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Defendant
Catchwords:
Town planning - Reservation and acquisition of land - Price - Referral to Full Court of question whether interest payable by planning authority - Reasons of Full Court in Mount Lawley Pty Ltd v Western Australian Planning Commission adopted - No entitlement to interest as part of price fixed under s 36(2a) and (2b) of Metropolitan Region Town Planning Scheme Act 1959 (WA) - Interest on the price may be ordered pursuant to s 32 of Supreme Court Act 1935 (WA)
(Page 2)
Legislation:
Metropolitan Town Planning Scheme Act 1959 (WA), s 36
Supreme Court Act 1935 (WA), s 32
Result:
Interest allowable under s 32 of the Supreme Court Act
Interest for delay not allowable
Category: B
Representation:
Counsel:
Plaintiffs : Mr J C Giles
Defendant : Mr G T W Tannin SC & Mr B P King
Solicitors:
Plaintiffs : Solomon Brothers
Defendant : State Solicitor's Office
Case(s) referred to in judgment(s):
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149
Case(s) also cited:
Ansons Pty Ltd v Merlex Corporation Pty Ltd (2001) 162 FLR 443
Cornell v Town of East Fremantle (2003) 131 LGERA 20
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111
Drower v Minister of Works and Development [1980] 2 NZLR 691
Ester Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Folkstone v Metropolitan Region Planning Authority [1968] WAR 164
(Page 3)
Gould v Vaggelas (1985) 157 CLR 215
Haines v Bendall (1991) 172 CLR 60
Hill v Western Australian Planning Commission (2000) 107 LGERA 229
Kozaris v Roads Corporation [1991] 1 VR 237
Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57
MacDougall v Western Australian Planning Commission (2003) 129 LGERA 243
Mount Lawley Pty Ltd v Western Australian Planning Commission (2002) 123 LGERA 443
Ryan Nominees Pty Ltd v Western Australian Planning Commission [2003] WASCA 134
Sisters of Charity of Rockingham v The King [1922] 2 AC 315
Taylor v Johnson (1983) 151 CLR 422
Temwood Holdings Pty Ltd v Western Australian Planning Commission (2002) 25 WAR 484
The Aldora [1975] QB 748
The Commonwealth of Australia v SCI Operations Pty Ltd (1998) 192 CLR 285
Trandos v Western Australian Planning Commission (2001) 117 LGERA 257
Treloar v Ivory (1991) 4 WAR 318
Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520
Western Power Corporation v Normandy Power Pty Ltd [2002] WASC 113
(Page 4)
1 JUDGMENT OF THE COURT: This is a referral to this Court (the "referral") of the issue of the entitlement of the plaintiffs to interest on the price payable to the plaintiffs pursuant to s 36 of the Metropolitan Town Planning Scheme Act 1959 (WA). That section provides for compensation to the owner for injurious affection to land arising out of a reservation of land by amendments to the Metropolitan Regional Scheme. Upon the procedure in s 36 for making the claim having been followed, the defendant can elect either to pay compensation or to pay the price of the land. Under that section, if the parties are unable to agree a price, the owner can apply to the Supreme Court for the determination of the value of the land. That value will be its price.
2 In this case, the plaintiffs had made a claim for such compensation, the defendant had made such an election, and the owner subsequently made such an application to the Court. A judgment was given on 31 January 2000 by Heenan J in which his Honour determined a number of preliminary issues going to the basis upon which the land should be valued, including its highest and best use. Following this judgment, the parties consented to an order dated 22 November 2002 (made by Registrar Johnston) that, by par 1, set the price payable for the plaintiffs' land at $610,000 and, by par 3, referred the matter of any entitlement of the plaintiffs to interest on that amount to a Judge in Chambers. On that referral, McKechnie J on 4 March 2003 made the following orders:
"1. The issues of whether the plaintiffs have any entitlement to: -
1.1 interest on the price payable pursuant to section 36 of Metropolitan Region Town Planning Scheme Act 1959 (WA) (the 'Price') pursuant to s 32 Supreme Court Act 1935 (WA); or
1.2 interest or a premium for delay as part of the Price in accordance with the reasons for decision of McKechine [sic] J in Mount Lawley Pty Ltd v Western Australian Planning Commission [2002] WASC 307
be referred for the consideration of the Full Court of the Supreme Court of Western Australia and be heard at the same time as the appeal in Mount Lawley Pty Ltd v Western Australian Planning Commission Supreme Court FUL 12 of 2003.
(Page 5)
- 2. The balance of the matters affecting the determination of the Issue (as defined in paragraph 3 of the Orders made herein by Registrar Johnston on 22 November 2002) be reserved for further consideration after determination by the Full Court of the issues referred by paragraph 1 of this Order.
3. The costs of the hearing on 4 March 2003 be reserved."
3 The issues in par 1 of the orders made by McKechnie J were identical to the issues raised in the cross-appeal in Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149 (the "Mount Lawley appeal"), being the appeal referred to by McKechnie J in the concluding words of par 1 of his orders. Consequently, arrangements were made whereby counsel for the plaintiffs in the referral made submissions to us which counsel for the appellant (cross-respondent) in the Mount Lawleyappeal adopted, and counsel for the defendant, who was also counsel for the respondent (cross-appellant) in the Mount Lawleyappeal, responded to both sets of submissions. In our judgment in the Mount Lawley appeal, delivered contemporaneously with this judgment, we have consequently dealt with the issues which are raised in this referral.
4 In view of that commonality between the referral and the Mount Lawley appeal, it is unnecessary to do more than adopt as the reasons for our decision in the former the relevant parts of the reasons in the latter, being those parts of the reasons which appear under the headings "The valuation issues: market value or special value?" and "Interest". For those reasons, our determination of the issues referred to us in this referral is as follows:
1. The plaintiffs have the right pursuant to s 32 of the Supreme Court Act 1935 (WA) to seek an order of the Court for the payment of interest on the price payable pursuant to s 36 of the Metropolitan Region Town Planning Scheme Act 1959 (WA) which is set by the order of this Court of 22 November 2002.
2. The plaintiffs have no entitlement to interest for delay as part of the price so payable.
5 We would hear further from the parties as regards the form of the orders necessary to give effect to this determination.
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