Applicant v Respondent

1 Lantrak Developments Pty Ltd owns land at 150-170 Old Dandenong Road, Heatherton. On 30 June 2014, part of that land was compulsorily acquired for the construction of the Dingley Bypass. This proceeding concerns a dispute about the compensation payable in respect of that acquisition, under the Land Acquisition and Compensation Act 1986 (Vic) (LAC Act). The LAC Act provides that every person who had an interest in land that was divested or diminished by a compulsory acquisition has a claim for compensation,[1] and prescribes a process by which such claims are to be made and determined.[2]

2 The proceeding was commenced by the acquiring Authority[3] on 4 April 2019, by a notice of referral filed under s 80 of the LAC Act. It is listed for trial commencing 20 July 2021. It is fair to say that the interlocutory stages of the proceeding have not run smoothly.

3 By summons filed on 8 April 2021, Lantrak seeks the following orders:

(a) Pursuant to r 9.06(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), Lantrak South East Projects Pty Ltd (ACN 163 791 811) be joined as a respondent to the proceeding; and

(b) The respondent has leave to file and serve amended particulars of claim in the form exhibited as JL-6 to the affidavit of James Lofting made 29 March 2021.

4 Projects is one of a number of companies in the Lantrak Group. From July 2013, Projects has occupied the land owned by Lantrak in Heatherton, from which it conducts a land-fill business. Projects pays rent to Lantrak for its occupancy of the land. There is no written lease, and the evidence filed to date does not address the nature and extent of Projects' interest in the land.[4] The particulars of claim filed by Lantrak in this proceeding include a substantial claim for past and future disturbance losses arising from the Authority's acquisition of the land in 2014.[5] In December 2020, Lantrak filed evidence that indicated that these losses were suffered by Projects rather than Lantrak.[6]

5 The Authority opposes the application to join Projects, and contends that leave should not be granted to amend the particulars of claim to include the losses claimed by Projects.

6 For the reasons that follow, I have decided to refuse Lantrak's application to join Projects as a respondent to this proceeding. I will direct Lantrak to file and serve further amended particulars of claim, although not in the form sought in its summons.

7 The parties agreed that Projects could only be joined as a respondent to the proceeding if it had a 'disputed claim' for the purposes of the LAC Act. Lantrak accepted my analysis of that term in Rizzo v Head, Transport for Victoria,[7] in which I held that the Court's jurisdiction under the LAC Act is confined to determining a 'disputed claim' referred to it under s 80(b), and that a claim can only become a 'disputed claim' in accordance with the process prescribed in Pt 3 of the LAC Act.[8]

8 Lantrak submitted that it and Projects have a joint disputed claim for compensation for the acquisition of their interests in the land, and that Projects should be joined to the proceeding in order that its part of the claim can be determined. The Authority argued that Projects has never had a disputed claim that could be determined by the Court under s 89 of the LAC Act, and so there is no basis to join Projects as a party to the proceeding. Resolution of this difference requires attention to the events that preceded the commencement of this proceeding by the Authority in 2019.

9 The land was acquired on 30 June 2014, by publication of a notice of acquisition in the Government Gazette.[9] The notice described the land, and stated that the interest acquired was that of Lantrak and 'all other interests'.

10 Section 31(1) of the LAC Act obliges an acquiring authority to make an offer in writing 'to each claimant of whose entitlement to compensation it is aware'. On 23 December 2014, the Authority made an offer of compensation to Lantrak, comprising $790,000 for the market value of the land, and an allowance of $30,000 for consultant fees. An amount of $59,000 was held back for the cost associated with the removal of asbestos from the land, which would be paid if Lantrak cleared the site of that contamination. The offer was made in accordance with s 31 of the LAC Act, and was accompanied by a certificate of valuation, a statement setting out Lantrak's rights and obligations in relation to the acquisition, and a 'Form 11' Response to Offer.

11 Under s 33 of the LAC Act, it was open to Lantrak to either accept the Authority's offer by serving a notice of acceptance on the Authority, or to serve a notice of claim on the Authority. Lantrak did neither.

12 On 24 February 2015, the Authority paid $761,000 to Lantrak. Later that year, it paid a further $59,000, after Lantrak had removed asbestos from the acquired land, bringing the total paid to $820,000.

13 In December 2015, Lantrak's solicitors wrote to the Authority about the impact of the acquisition on the sand extraction and rehabilitation operations being conducted on its Heatherton site. Various remediation options were put forward and considered by each side, but no agreement was reached.

14 On 21 February 2017, Lantrak's solicitors wrote to the Authority's solicitors as follows:

As a separate matter, we are instructed that Lantrak Projects Pty Ltd has occupied the Land since 1 July 2013 and is the company that conducts the 'Lantrak' land-fill business on the Land. The physical and practical difficulties caused to the Lantrak companies by the acquisition, and the resulting uncertainty as to resolution, have delayed preparation and lodging of a claim for compensation. The two year period allowed under section 37(2) of the Land Acquisition and Compensation Act for a claim by Lantrak Projects has now expired.

On behalf of Lantrak Projects, we request that Roads Corporation agree to an extension of time for the making of a claim for compensation. It is our intention that the claims of both Lantrak companies would be run as a single claim.

We look forward to your response.

15 The Authority responded in a letter from its solicitors dated 8 March 2017, relevantly:

I note your comments concerning Lantrak Projects Pty Ltd. Roads Corporation agrees that that company can be joined as a claimant with Lantrak Developments on the clear understanding that the claims which may be available to each company would be treated as a single claim.

16 Despite this favourable response, no claim was made jointly by Lantrak and Projects. Nor did Projects make any claim on its own account for compensation for the acquisition of its interest in the acquired land, or specify what that interest was.

17 Two years passed. On 18 March 2019, the Authority gave notice under s 107 of the LAC Act, requiring Lantrak to deliver a Response to Offer within seven days. The notice was in the form of a letter from the Authority's solicitors to Lantrak's solicitors, which read:

Roads Corporation and Lantrak Developments Pty Ltd (Lantrak)

Acquisition of part of 150-170 Old Dandenong Road, Heatherton

As you are aware, we act on behalf of Roads Corporation in relation to the above matter. Relevant background is as follows -

• at all relevant times, your client, Lantrak, was the registered proprietor of land situated at and known as 150-170 Old Dandenong Road, Heatherton;
• by Notice of Acquisition gazetted on 30 June 2014, Roads Corporation compulsorily acquired part of Lantrak's land ...
• possession of the acquired land was taken by Roads Corporation on 16 July 2014;
• on 23 December 2014, Roads Corporation made an offer for compensation in the sum of $761,000 which was advanced to Lantrak on 24 February 2015;
• on 16 October 2015, Roads Corporation paid a further advance of compensation to Lantrak in the sum of $59,000; and
• the total amount advanced to Lantrak is $820,000.

Your client, Lantrak, has failed to respond to the offer and has failed to serve a Response to Offer by way of either a notice of acceptance of the offer or a notice of claim for compensation.

Section 107(1) of the Act is in the following terms -

"107 Time not to expire until notice given

(1) Notwithstanding anything in any other section of this Act, the time within which a person other than the Authority is required to do anything under this Act shall not expire until the expiration of seven days after the Authority has advised that person in writing of the effect of that expiration."

We are instructed to advise you that, in accordance with the provisions of section 107(1) of the Act, Roads Corporation now requires your client to deliver a Response to Offer (notice of claim) within 7 days of the date hereof.

...

We look forward to receiving your client's claim for compensation within the time specified above, failing which this matter will become a disputed claim for compensation.

In the event that this matter does become a disputed claim for compensation, we draw your attention to the provisions of section 81(1)(b) of the Act ...

...

We have assumed that the "amount in dispute" is greater than $400,000 although not having received a claim for compensation this assumption may not be correct.

In the event that section 81(1)(b) is applicable, we ask that your client exercise its option referred to in the section quoted, failing which Roads Corporation will refer the matter to the Supreme Court of Victoria which it believes to be the appropriate forum for resolution of this matter and the determination of compensation which may be payable to your client.

18 Lantrak's solicitors acknowledged this letter, but did not submit a claim for compensation on behalf of Lantrak, or a joint claim on behalf of Lantrak and Projects. Rather, they asked that 'our Client's claim for compensation' not be referred to the Court until at least 30 June 2019.

19 The Authority filed a notice of referral on 4 April 2019. The disputed claim referred for determination was in respect of Lantrak's interest as registered proprietor of the acquired land.

20 Lantrak submitted that the Authority's agreement, contained in its letter of 8 March 2017, that Projects could be 'joined as a claimant with Lantrak Developments on the clear understanding that the claims which may be available to each company would be treated as a single claim' had the effect that:

(a) the Authority recognised Projects' interest in the land and entitlement to compensation for the divesting of its interest;

(b) the Authority agreed that Lantrak and Projects' entitlement to compensation would be treated as one entitlement, and that they would be regarded as joint claimants for the purposes of s 36 of the LAC Act;

(c) the s 107 notice served in March 2019 encompassed both Lantrak and Projects' entitlement to compensation;

(d) their failure to provide a joint claim gave rise to a disputed claim that encompassed both of their entitlements to compensation; and

(e) as a consequence, the disputed claim that existed immediately before the referral to the Court was a dispute in respect of the entitlement of both Lantrak and Projects to compensation.

21 On that basis, Lantrak submitted that the referral, properly understood, was of the claims of both Lantrak and Projects, and it is necessary that Projects be joined to ensure the determination of all questions in the proceeding concerning the disputed claim.

22 Lantrak offered no explanation for Projects' delay in making its claim, other than a general statement that it has struggled in dealing with the impact of the acquisition on its business. It clarified that the first articulation of Projects' claim was in a letter from its solicitors dated 1 December 2020.

23 As to prejudice, Lantrak disputed the Authority's claim that it would suffer irreparable prejudice if Projects were to be joined at this late stage of the proceeding. The claims made by Projects are the same claims as those set out in the particulars of claim filed in July 2020, supported by the same evidence, and presented jointly. Some additional discovery of financial documents would be required, which could be done in the time remaining before trial. Lantrak did not accept that the joinder of Projects would necessitate adjourning the trial.

24 The Authority's primary position was that there is no 'disputed claim' by Projects that the Court has jurisdiction to hear and determine under Pt 10 of the LAC Act. As such, there is no claim or question in the proceeding to which Projects 'ought to have been joined as a party'[10] or any 'question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine'.[11]

25 It submitted that the disputed claim referred to the Court was a claim in respect of Lantrak's interest in the acquired land, and did not include any claim in respect of any interest in the acquired land held by Projects. The disputed claim was said to have arisen as follows:

(a) Following the acquisition, the Authority made an offer to Lantrak pursuant to s 31 of the LAC Act, enclosing the prescribed 'Response to Offer' form.

(b) As a recipient of the offer, Lantrak was a 'claimant' who was required to serve either a notice of acceptance under s 33(1)(a), or a notice of claim under s 33(1)(b).

(c) Lantrak did neither and, after service of the s 107 notice, the claim became a disputed claim for the purposes of the LAC Act.

26 The Authority acknowledged its agreement, communicated in the letter of 8 March 2017, that Lantrak and Projects could make a joint claim, and that Projects could make a claim out of time. However, that agreement was conditional on a joint claim in fact being made in accordance with the LAC Act, which did not occur. Lantrak never responded to the Authority's initial offer with a claim of its own under ss 33(1)(b) and 35, and Projects never made a claim under s 37.

27 The Authority submitted that there were a number of things that 8 March 2017 agreement was not. It was not a concession that Projects had any compensable interest in the acquired land. It was not an agreement that Projects could advance a claim at any time of its choosing, no matter how late. In the absence of any claim by Projects, the agreement did not transform Projects' entitlement to bring a claim out of time into a disputed claim. And it did not retrospectively transform the initial offer made by the Authority to Lantrak into a joint offer made to both Lantrak and Projects.

28 Even if the Court did have jurisdiction, the Authority argued that the application should be refused on discretionary grounds. The Authority emphasised the lack of any explanation for Projects' long delay in making a claim, and pointed out that it had not sought an extension of time under s 106 of the LAC Act.

29 It submitted that it would suffer irreparable prejudice if Projects were to be joined, which could not fairly be met by an adjournment or an award of costs.[12] The trial listed to commence on 20 July 2020 would have to be adjourned, further delaying the determination of compensation for an acquisition completed nearly seven years ago. Most significantly, the Authority would have to defend a claim for compensation by Projects that it did not make under the LAC Act at any time since the acquisition in 2014. In that event, the Authority contended that it will have lost any opportunity to assess the claim early, to make an early offer in response to the claim, and to protect itself against its exposure to interest.

30 It is clear that the disputed claim referred to the Court by the Authority in April 2019 was the claim concerning Lantrak's interest as registered proprietor of the acquired land. The notice of referral does not mention Projects and cannot be read to encompass Projects' potential claim, about which the Authority still knew almost nothing. It is not necessary to join Projects to ensure that all questions in relation to the disputed claim currently before the Court are 'effectually and completely determined and adjudicated upon'.[13]

31 The Authority's agreement contained in its letter of 8 March 2017 was no more than an agreement that Projects could join its claim to Lantrak's response to offer, despite more than two years having elapsed since the acquisition. It did not transform the initial offer to Lantrak into a joint offer made to Lantrak and Projects, and Lantrak's failure to respond to the initial offer did not give rise to a disputed claim by Projects.

32 Further, the agreement was conditional on Lantrak and Projects making a joint claim, which they did not do. Because the agreement did not specify a time within which the joint claim could be made, and was not expressed to be open ended, it can only be understood as an agreement that Lantrak and Projects could make a joint claim within a reasonable time. The Authority waited two more years before giving notice to Lantrak under s 107 that its time to respond to the offer of 23 December 2014 was up.[14] This was a more than reasonable time for Lantrak and Projects to make a joint claim. Their failure to do so was unexplained.

33 I have concluded that there is no disputed claim by Projects that the Court has jurisdiction to determine. If there had been, it may have been just and convenient to determine the two disputed claims together, given that they are made by related companies and concern the same land.[15]

34 However, for the reasons explained in Rizzo,[16] the Court does not have a free-standing jurisdiction to award compensation for the compulsory acquisition of an interest in land; it has jurisdiction under s 89 of the LAC Act to determine a 'disputed claim' referred to it under s 80(b). The scheme of the LAC Act is that only those claims that are not resolved through the prescribed process may be referred to and determined by the Court.

35 In order for Projects to have a disputed claim, it first had to make a claim for compensation under s 37 of the LAC Act, by serving a notice of claim in the form prescribed by s 35. Had it done so, the Authority would have had three months to reply to the claim, either by admitting it, making an alternative offer of compensation, or rejecting it.[17] Projects would have had a further two months to accept or reject any alternative offer made by the Authority.[18] However, Projects never initiated the claim process, either alone or jointly with Lantrak.

36 I refuse the application to join Projects as a respondent to the proceeding, because there is no disputed claim to which it is a party that can be determined by the Court. As a result, it is not necessary to determine whether the joinder should also be refused on discretionary grounds.

37 Lantrak's application to join Projects as a respondent must be dismissed.

38 The application to file and serve further amended particulars of claim was contingent on Projects becoming a respondent, and so I will not grant leave to file and serve a document in the form exhibited to Mr Lofting's affidavit. However, counsel for Lantrak indicated that there was one substantial head of claim to be deleted in any event. In addition, it appears that various claims made in the current version of the particulars of claim relate to the business conducted by Projects, and not Lantrak's interest in the acquired land. I will therefore make an order directing Lantrak to file and serve further amended particulars of claim deleting any head of claim that is no longer pressed, and omitting any claims that there is no proper basis for Lantrak to make.

39 I will hear the parties on the costs of the summons.

[1] Land Acquisition and Compensation Act 1986 (Vic) (LAC Act), s 30.

[3] The acquiring authority was the Roads Corporation, also known as VicRoads, which has since been abolished and, relevantly here, replaced by a corporation sole titled 'Head, Transport for Victoria'.

[4] This is a significant omission in light of the Court of Appeal's analysis in Secretary to the Department of Transport v Provan's Timber Pty Ltd [2020] VSCA 210, [136]-[160], and its conclusion at [136] that 'the nature and duration of the occupying interest ... is critically important to the determination of the compensation to which an occupier is entitled'.

[5] Amended particulars of claim filed 1 October 2020.

[6] Statement of Gary Robert Liemant dated 1 July 2020 (but filed 1 December 2020), [27]-[37]; Statement of Greg Meredith dated 1 December 2020, Annexure 3, Appendix C.2 - Letter of instruction from HWL Ebsworth Lawyers to Mr Meredith dated 28 October 2020.

[7] [2020] VSC 89 (Rizzo).

[10] Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 9.06(b)(i).

[12] Relying on AON Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175, [5] (French CJ), [99] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[14] The requirement in s 107(1) for an acquiring authority to give 'final notice' of the expiry of a time limit does not apply in relation to the period within which a claim may be made under s 37: LAC Act, s 107(2). Section 107(1) did not oblige the Authority to give notice to Projects of the expiry of the time limit for making an initial claim under s 37.