Zappia v Transport for NSW

[2014] NSWLEC 38

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Zappia and Ors v Transport for NSW [2014] NSWLEC 38

Hearing dates:

11 April 2014

Decision date:

11 April 2014

Jurisdiction:

Class 3

Before:

Biscoe J

Decision:

Consent procedural orders in accordance with short minutes of orders in 6 proceedings (see [8] of judgment).

Catchwords:

PRACTICE AND PROCEDURE - case management of proceedings in North West Rail Compensation List - orders for certain of the proceedings to be heard together and to travel in tandem.

Legislation Cited:

Land Acquisition (Just Terms Compensation Act 1991
State Environmental Planning Policy (Sydney Region Growth Centres) 2006

Cases Cited:

Attard & Ors v Transport for NSW [2013] NSWLEC 176
Bonomo v Transport for New South Wales [2014] NSWLEC 25
Cudgegong Australia Pty Ltd v Transport for NSW [2014] NSWLEC 19
Cudgegong Australia Pty Ltd v Transport for NSW [2014] NSWLEC 36

Category:

Procedural and other rulings

Parties:

31242 of 2012
Maria Rosa Zappia (First Applicant)
Caterina Golding (Second Applicant)
Natale Zappia (Third Applicant)
Giovanni Zappia (Fourth Applicant)
Maria Zappia (Fifth Applicant)
Transport for NSW (Respondent)

30167 of 2013
Carmen Camilleri (Applicant)
Transport for NSW

30158 of 2012
Charlie Sultana (First Applicant)
Lyn Sultana (Second Applicant
Transport for NSW (Respondent)

30338 of 2013
C & L Sultana Excavation Pty Ltd (Applicant)
Transport for NSW (Respondent)

30171 of 2013
Cudgegong Australia Pty Ltd (Applicant)
Transport for NSW (Respondent)

30833 of 2013
Remo Crisante (Applicant)
Transport for NSW (Respondent

Representation:

COUNSEL:
31242 of 2012
A Galasso SC with A Stafford (Applicants)
M Peatman (Respondent)

30167 of 2013
A Pearman (Applicant)
M Peatman (Respondent)

30158 of 2012
S Flanigan (Applicants)
M Peatman (Respondent)

30338 of 2013
S Flanigan (Applicant)
M Peatman (Respondent)

30171 of 2013
P Colagiuri (Applicant)
M Peatman (Respondent)
MR Hall (Second Respondent

30833 of 2013
S Nash (Applicant)
M Peatman (Respondent)
SOLICITORS:
31242 of 2012
Sciglitano & Co (Applicants)
Hunt & Hunt (Respondent)

30167 of 2013
Macaulay Hawach (Applicant)
Hunt & Hunt (Respondent)

30158 of 2013
Mark Turnbull & Co (Applicants)
Hunt & Hunt (Respondent)

30171 of 2013
PC Law (Applicant)
Hunt & Hunt (Respondent)
ERA Legal (Second Respondent)

30338 of 2013
Mark Turnbull & Co (Applicant)
Hunt & Hunt (Respondent)

30833 of 2013
Low Doherty & Stratford (Applicant)
Hunt & Hunt (Respondent)

File Number(s):

31242/12, 30158/13, 30167/13, 30171,13, 30338/13, 30833/13

EX TEMPORE Judgment

1. This is a case management hearing of proceedings in the new "North West Rail Compensation List", administered by the Court as a subset of the Class 3 Compensation List. Proceedings in the North West Rail Compensation List are for compensation for the compulsory acquisition of land for the purpose of the North West Rail Link. Proceedings will be added to the list as they are commenced and deleted as they are finalised. To assist the Court to identify new proceedings belonging in the list, the solicitors for the respondent acquiring authority, Transport for NSW, agree to endorse the respondent's notice of appearance with the words "North West Rail Compensation List".

1. A consensus has emerged this morning among the represented parties, with which I generally agree, that it is desirable that compensation claims for resumed properties in proximity to each other, such as those in the same precinct under the State Environmental Planning Policy (Sydney Region Growth Centres)2006 (Growth Centres SEPP), should be heard together where it is expected that they would have had a similar market value at the resumption date under the Land Acquisition (Just Terms Compensation Act 1991. This is in order to avoid the risk of inconsistent Court decisions as to their market value based on different evidence and submissions, and to save time and costs in managing and hearing sufficiently similar matters. The problem of inconsistent compensation decisions, particularly concerning market value, by different decision-makers is exacerbated by the fact that the various applicants mostly have different expert witnesses (they also have different lawyers), and in some matters the respondent also has different expert witnesses (albeit the respondent has rationalised by retaining the same solicitors).

1. Case management considerations led Preston CJ of LEC to order that seven of the proceedings in Riverstone East Precinctunder the Growth Centres SEPP be tried together: Attard & Ors v Transport for NSW [2013] NSWLEC 176. They were tried together by me with an eighth related proceeding and judgment is reserved (Attard x 2, Xiguis, Hsia, Sultana, Camilleri x 2, and Milicevic). Meanwhile judgment has been delivered in the matter of Bonomo v Transport for New South Wales [2014] NSWLEC 25 relating to land in Area 20 Precinct(Sheahan J), and judgment has been reserved in two other matters relating to land in Area 20 Precinct: De Battista v Transport for New South Wales (Pain J) and Chircop v Transport for NSW (Biscoe J). As decisions of the Court concerning the amount of compensation are delivered, they should provide guidance and facilitate settlement of other proceedings relating to proximately located land resumed for the purpose of the North West Rail Link.

1. Annexed hereto and marked as follows are two useful documents prepared by the respondent's solicitors, which it would be helpful if they could update and provide to the Court from time to time, concerning proceedings in the North West Rail Compensation List:

"A"

An aerial map on which has been superimposed the location of the acquired properties. However, it does not show the location of the Refalo and Canulli properties to which Annexure B refers.

"B"

A schedule showing details of the proceedings relating to the acquired properties. As I understand it from the respondent's solicitor, there are also three other proceedings not referred to in this Schedule relating to land outside the Growth Centres SEPP precincts acquired for the same purpose that should be added to the North West Rail Compensation List: the respondent's solicitor should make arrangements with the Registry for them to be so designated.

1. The following applicants in the North West Rail Compensation List are represented before me today, all of whose resumed properties were in precincts under the Growth Centres SEPP except for that of Crisante:

Zappia & Ors	31242/12	Riverstone East precinct
Camilleri	30167/13	Riverstone East precinct
Sultana & Ors	30158/13	Area 20 precinct
C & L Sultana Excavation Pty Ltd	30338/13	Area 20 precinct
Cudgegong Australia Pty Ltd	30171/13	Area 20 precinct
Crisante	30833/13

1. The case management considerations referred to above at [2] have driven an oral motion this morning by the applicants in the Zappia proceeding to vacate their hearing due to commence next Monday 14 April 2014 and for that proceeding to be heard together with the Camilleri proceeding referred to above at [5]. Both proceedings relate to land in Riverstone East Precinct. Both properties are quite close together in Schofields Road and on opposite sides of Tallawong Road, such that it might be expected that the market value of one would be similar to the market value of the other. The Camilleri applicants and the respondent in both proceedings support the motion. This Court jealously guards against vacating hearing dates other than in exceptional circumstances. In light of the considerations addressed above at [2], I am persuaded that the orders sought should be made and that, as the Camilleri proceeding still has a way to go in preparing for hearing, the two matters should travel in tandem. Before the next directions hearing in those two matters, the parties should confer as to the making an order that evidence in one be evidence in the other: such an order seems sensible. Since the applicants have each retained a different set of experts, they should also consider whether there is scope for a commonality of approach.

1. I will also direct that until further order the Sultana proceeding and the Sultana Excavation proceeding travel in tandem with the Cudgegong proceeding since the resumed properties to which they relate are proximate to each other in Area 20 precinct and it is likely that they will be ordered to be heard together with evidence in one evidence in the other. No such order is made today because there is an interlocutory dispute and delay in the Cudgegong matter. The second respondent, Golden Mile Property Investments Pty Ltd, has sought leave to appeal against a decision of Pain J dismissing its motion that the amount of compensation yet to be paid, be paid to it rather than to Cudgegong Australia Pty Ltd: Cudgegong Australia Pty Ltd v Transport for NSW [2014] NSWLEC 19; see also Cudgegong Australia Pty Ltd v Transport for NSW [2014] NSWLEC 36. The respondent and Golden Mile Property Investments Pty Ltd support an order that the Sultana and C & L Sultana Excavation proceedings be heard together with the Cudgegong proceeding, while Cudgegong Australia Pty Ltd reserves its position. I note that the respondent says that the market value compensation claimed by Cudgegong Pty Ltd is completely out of line and far in excess of that claimed by all applicants in all other proceedings. If that is correct, then it is a matter to which Cudgegong Pty Ltd, if it is successful in the Court of Appeal on the interlocutory dispute, should give close attention before it serves its valuation evidence.

1. Consistently with the proposed orders and directions referred to above at [6] and [7], I make consent procedural orders in the following proceedings in accordance with the short minutes of order dated 11 April 2014 in each, which I sign and place with the papers.

Zappia v Transport for NSW

Camilleri v Transport for NSW

Sultana v Transport for NSW

C & L Sultana Excavation Pty Ltd v Transport for NSW

Cudgegong Australia Pty Ltd v Transport for NSW

Crisante v Transport for NSW

ANNEXURE A

ANNEXURE B

Amendments

15 April 2014 - omission of second respondent counsel and solicitors details for 30171 of 2013

Amended paragraphs: cover page

Decision last updated: 15 April 2014