Al Amanah College Inc v Minister for Education and Training

EX TEMPORE Judgment 1On 25 November 2011 I determined the amount of compensation to which the applicant was entitled for the market value of its land at Bass Hill which the respondent Minister compulsorily acquired under the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act): Al Amanah College Incorporated v Minister for Education and Training [2011] NSWLEC 189. This morning, 23 December 2011, I adopted a referee's report as to the amount of disturbance loss and determined that the total amount of compensation to which the applicant is entitled under the Just Terms Act is $12,189,000: Al Amanah College Inc v Minister for Education and Training (No 2) [2011] NSWLEC 254. I reserved for immediate argument a question sought to be agitated by the applicant as to whether the respondent should be ordered to pay the applicant the compensation to which it is entitled (to the extent to which it has not already been paid) within a specified time. I have now heard that argument. The applicant seeks an order that payment be made within seven days. The respondent opposes this order but would consent to an order that it be paid by 20 January 2012, that is, within 28 days (in accordance with its usual practice). 2The reason that the applicant seeks the order is that otherwise it will suffer the burden of paying the difference between the statutory rate of interest on compensation under the Just Terms Act and the higher interest on its loan to purchase a replacement property at Chester Hill. The difference is $367 per day or some $11,000 if payment is not made for 30 days. 3An email from the solicitor for the respondent indicates that the office of his "client officer" closes at noon 23 December 2011 (less than an hour ago today) and will not reopen until the morning of 9 January 2012; that the office will be unattended until then; that once the office reopens it will be necessary to go through an administrative process to obtain approval for the requisite cheque to issue; that, depending on the sum involved, approval by the Director-General or Deputy Director-General of the relevant government department will be necessary, which will take about two weeks; and therefore it will not be feasible for a cheque to issue until 20 January 2012 at the earliest. 4A department organisation chart in evidence suggests (as the applicant submits) that a number of other officers could at least recommend approval of payment. The applicant therefore submits that the closing down of the office of the client officer until 9 January 2012 is not necessarily dispositive. 5The applicant submits that an obligation to pay compensation determined under the Just Terms Act is imposed on the Treasurer under s 7(1) of the Crown Proceedings Act 1988, which provides that "The Treasurer shall pay (out of any money legally available) all money payable by the Crown under any judgment including any interest, except to the extent that the money is paid by some person other than the Treasurer". The definition of "judgment" in that Act is particularly broad: it "includes every species of relief which a court can grant, whether interlocutory or final, and whether by way of order that anything be done or not done or otherwise, and also includes a declaration": s 3. I consider that a determination of compensation under the Just Terms Act is a "judgment" within this broad definition. I disagree with the respondent's submission to the contrary and accept the applicant's submission as to the Treasurer's obligation. 6The Just Terms Act does not prescribe any specific time within which payment of compensation determined by the Court is to be made. It does provide for payment of 90 per cent of the amount offered in a compensation notice within 28 days after the authority is given notice of the institution of proceedings: s 68(2) (set out at [9] below). 7The respondent submits that the Court's power is limited to determining the amount of compensation under the Just Terms Act and that it has no power to make any order for payment or as to the time by which payment should be made. 8I do not accept the submission. The general practice of the Court has been simply to make a determination of the amount of compensation. Normally, that should be sufficient. However, in my opinion, the Court has power, in an appropriate case, to order the time by which payment of compensation should be made under one or more of the following provisions: s 68(1) of the Just Terms Act, ss 22 and 23 of the Land and Environment Court Act 1979, s 90(1) of the Civil Procedure Act 2005 and rr 36.1 and 36.5 of the Uniform Civil Procedure Rules 2005. 9Sections 66(2) and 68 of the Just Terms Act provide: 66 Objection against amount of compensation offered ... (2) If any such objection is duly lodged, the Land and Environment Court is to hear and dispose of the person's claim for compensation. 68 Payment of compensation arising from court proceedings (1) Payment of compensation in respect of matters before the Land and Environment Court is to be made in accordance with any agreement reached during the proceedings or, if no such agreement is reached, in accordance with the decision of the Court. (2) Subject to any such agreement or decision: (a) if the authority of the State gave the owner concerned a compensation notice-the authority is required to pay 90 per cent of the amount of compensation offered in the notice (as an advance payment) within 28 days after the authority is given notice of the institution of the proceedings or (if the owner does not accept that advance payment) the authority is required to pay 90 per cent of that amount into the trust account kept under this Part, or (b) if the authority of the State did not give the owner concerned a compensation notice-the authority may (but is not required to) make an advance payment under this Part or pay an amount into the trust account kept under this Part. 10Sections 22 and 23 of the Land and Environment Court Act provide: 22 Determination of matter completely and finally The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided. 23 Making of orders The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. 11Section 90(1) of the Civil Procedure Act provides: 90 Judgments generally (1) The court is, at or after trial or otherwise as the nature of the case requires, to give such judgment or make such order as the nature of the case requires. 12Rules 36.1 and 36.5(1) of the Uniform Civil Procedure Rules provide: 36.1 General relief At any stage of proceedings, the court may give such judgment, or make such order, as the nature of the case requires, whether or not a claim for relief extending to that judgment or order is included in any originating process or notice of motion. 36.5 Time for compliance with judgments and orders (1) If a judgment or order requires a person to do an act within a specified time, the court may, by order, require the person to do the act within another specified time. (2) If a judgment or order requires a person: (a) to do an act forthwith or forthwith on a specified event, or (b) to do an act but does not specify a time within which he or she is required to do the act, the court may, by order, require the person to do the act within a specified time. 13The next issue is whether, in the circumstances of this case, it is appropriate to make an order for payment within a specified time. The applicant's additional interest burden, which arises because of the compulsory acquisition, suggests that there would be merit in doing so: see [2] above. The main obstacle is that my reasons for determination of compensation were delivered at noon today, 23 December 2011, the precise time that the office of the client officer of the relevant government department closed for the holiday period until 9 January 2012: see [3] above. I accept that reasonable administrative procedures should be gone through before public moneys are expended. In the circumstances, I think it would be unreasonable to accede to the applicant's plea for an order that payment be made within seven days. The respondent submits that it would be futile to order the respondent to pay any more speedily than 28 days and that such an order would merely result in a technical contempt of court. I am not satisfied, given the state of the evidence, that it would not be reasonably practicable for the respondent to make payment somewhat more quickly than the 28 days it has proposed. 14In the circumstances, the order of the Court is that the respondent pay the applicant the compensation to which it is entitled (to the extent to which it has not already been paid) within 21 days. 15The applicant also applies for indemnity costs from a certain time, based on a Calderbank offer. This application is not urgent and it is not practical to deal with it now. I direct that the parties obtain today a hearing date for this application; that 14 days before the hearing date the applicant file and serve its evidence and submissions; and that seven days before the hearing date the respondent file its evidence and submissions. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 January 2012