Attard J & R Services Pty Ltd v Transport for New South Wales

Background 1Joseph and Rosemary Attard challenge the determination of compensation in respect of the respondent's compulsory acquisition of land they owned at Schofields, for the public purpose of the North West Rail Link. 2They owned Nos 53 and 55 Schofields Road, lived in a house on No 55, and conducted a "24/7" plant hire business from the site. They purchased No 55 in 1993, and No 53 in 2008. 3The "business interest" on No 55 was owned by their company, Attard J & R Services Pty Ltd, as trustee for the J & R Attard Family Trust, trading as "Road Sweeper Hire", which employed both of them full-time. 4A separate claim for compensation was made in respect of the impact on the business of the acquisition of the land.

Chronology 5Much of the following history has been gleaned from an affidavit sworn by Rosemary Attard on 24 June 2013, and read in the hearing before me. 6Around November 2011, the Attards became aware of the respondent's intentions, regarding acquisition of their land for the public purpose, and they engaged their present solicitors in about March 2012. 7In March/April 2012, the Attards' accountants (Bentleys) estimated that the relocation costs and revenue loss to the business, as a result of the acquisition, would be in the order of $5M over 4-5 years. The respondent arrived at a figure of $450,000 for "financial disturbance ... of the business", based on an assessment prepared by Robertson & Robertson. A conference of experts was held in about August 2012, and a joint report was provided to the Valuer General, who later determined that element of compensation at $277,300 (see [9] below). 8On 4 July 2012, the respondent sought to negotiate an agreement, and offered "total compensation" packages, available until 29 August 2012, in respect of both parcels and the business. Vacant possession was required not later than 28 February 2013. 9On 5 December 2012, three separate compensation notices were issued to the Attards - in the sums of $2.568M for No 53, $2.855M for No 55, and $277,300 for the business loss. 10The 90-day time limit on lodging objections in the court runs from receipt of those notices, in the normal course, which would mean that the time expired on, say, 7 March 2013. 11On 19 December 2012, Mr Attard filed class 3 proceedings in respect of the two landholdings (matters 12/31254 re No 53, and 12/31256 re No 55), and those matters are travelling together through this court's case management processes. Their next directions hearing is set for 30 August 2013. 12Late in 2012, after "a great deal of difficulty in locating a suitable property", and "a great deal of time looking at properties", the Attards purchased a property at The Ponds, as at least a "stop-gap" replacement home and business site - to "have somewhere to live after 28 February 2013", Ms Attard deposes (par 20). 13On 10 February 2013, the Attards' solicitor engaged a Mr Butterfield of Halligan & Co to prepare an independent report on their business disturbance claim, and, on 4 March 2013, wrote to the respondent in respect of the company's claim, acknowledging the imminent expiry of the objection period, and indicating that he was obtaining a "second opinion from an appropriately qualified business valuer", which he expected within "2 to 3 weeks". Butterfield's report was received around 20 March 2013, and sent to the respondent. 14Ms Attard deposes (par 31) that, at the time Butterfield was engaged, she and her husband were concerned that a difference of only $100,000-$250,000 between the parties' assessment of the business claim may not justify the "risks of fighting ... court proceedings, having regard to the legal costs and anxiety involved". 15She further deposes (par 33) that the family spent "most of January, February, and March 2013 preparing to move", a "particularly disruptive and anxious period" for them, while still operating a business and looking for a new venue for it. 16On 6 February 2013, the "vacant possession" date was extended to 31 May 2013. However, the court notes that that extension was not mentioned in Ms Attard's affidavit. 17On 6 May 2013, the trustee company lodged its Class 3 application of objection in this matter, claiming (business loss) disturbance compensation of $644,510.65. 18On 7 June 2013, Craig J directed that any Notice of Motion ("NOM") seeking relief for the company, under s 66(3) of the Land Acquisition (Just Terms Compensation) Act 1991 ("the JTC Act"), should be filed by 2 June 2013, and 15 July was appointed as the hearing date for any such NOM. 19On 25 June 2013, the company filed the NOM now before the court, and Ms Attard's affidavit. 20Section 66(3) provides (my emphasis): 66 Objection against amount of compensation offered ... (3) A person who does not lodge an objection within the 90-day period and who is taken to have accepted the offer of compensation under section 45 may nevertheless lodge an objection under this section, but the Land and Environment Court is not to hear and dispose of the person's claim for compensation unless satisfied that there is good cause for the person's failure to lodge the objection within that period. ... 21This judgment determines that NOM. 22The respondent does not assert any prejudice flowing from the applicant's NOM, but opposes it, not only on the merits of the Attards' case on their delay in lodging their company's objection, but on the grounds that the respondent believes the proceedings have no utility. 23The respondent says that the company's substantive claim cannot succeed on the compensation law (s 61 of the JTC Act, as considered by the Court of Appeal in Sydney Water Corporation v Caruso [2009] NSWCA 391; 170 LGERA 298, especially at [184]-[188]), and/or on the planning evidence (opining that the improvements on, and the use of, the land were not "lawful"). 24The respondent's planning evidence (affidavit by Gary Shiels, sworn 12 July 2013) was filed in this matter on 12 July 2013, and the applicant has not yet had the opportunity to assemble and file its evidence in response. The applicant says that the likely submission based on s 61 will not succeed in the face of the reasoning in a recent Court of Appeal land tax decision on the term "lawful" (De Marco v Chief Commissioner of State Revenue [2013] NSWCA 86, especially per Gzell J and Basten JA, c.f. McColl JA).