Cudgegong Australia Pty Limited v Transport for NSW

Land and Environment Court (NSW)|2014-04-03|Before: Pain J

Notice of Motion seeking stay of Court order 1The Second Respondent Golden Mile Property Investments Pty Limited (Golden Mile) by Notice of Motion dated 25 March 2014 seeks a stay of the order made by this Court in interlocutory proceedings, Cudgegong Australia Pty Limited v Transport for NSW [2014] NSWLEC 19 (Cudgegong (No 1)) on 13 March 2014 that "pursuant to s 68(2) of the Land Acquisition (Just Terms Compensation) Act 1991, the First Respondent is to make an advance payment of $757,300 to Cudgegong Australia Pty Limited, the Applicant, within 14 days". The order sought in the Notice of Motion as amended is: 1. That Order 1 in Pain J's decision on 13 March 2014 be stayed until: ... b. The date of final disposition of any application for leave to appeal lodged with the NSW Court of Appeal ... 2No appeal by Golden Mile has yet been filed. Section 67 of the Civil Procedure Act 2005 (CP Act) confers power on this Court to stay proceedings in these circumstances. In the leading decision (agreed by the parties) of Alexander v Cambridge Credit Corp Ltd (receivers and managers appointed) (1985) 2 NSWLR 685, the Court of Appeal reviewed the authorities and summarised some of the relevant principles the Court should have regard to exercising its discretion in an application for a stay of execution of an order pending an appeal (at 694-695): The onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties: Trlin. The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears: see Supreme Court Rules, Pt 51, r 10; Waller v Todorovic. The Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it: Attorney-General v Emerson (1889) 24 QBD 56. ... Two further principles can be mentioned. The first is that where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay: Scarborough v Lew's Junction Stores Pty Ltd (at 130); applied in Sun Alliance Insurance Ltd v Steiger (Full Court, Supreme Court of Victoria, 22 March, 1985, unreported). Thus, where it is apparent that unless a stay is granted an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay: Wilson v Church (No 2) (1879) 12 Ch D 454; Re Middle Harbour Investments Ltd (In Liq) (at 2). Secondly, although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interest of the parties, from making some preliminary assessment about whether the appellant has an arguable case. This consideration is protective of the position of a judgment creditor where it may be plain that an appeal, which does not require leave, has been lodged without any real prospect of success and simply in the hope of gaining a respite against immediate execution upon the judgment. 3The overriding principle in an application for a stay is to ask what the interests of justice require: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83] (Spigelman CJ, Meagher and Sheller JJA concurring). 4Leave to appeal from the Court of Appeal is necessary as the judgment in Cudgegong (No 1) was interlocutory. Relevant background about Cudgegong's and Golden Mile's interest in the acquired land is found in Cudgegong (No 1) at [19]-[36].

Evidence 5In his 25 March 2014 affidavit the solicitor for Golden Mile, Mr Russell deposes at par 3 that: "I am concerned that if the money is paid out and the appeal is later allowed, it will be impossible to recover the sum paid to the Applicant". Exhibited to his affidavit was transcript from the substantive hearing in Cudgegong (No 1) of the cross-examination of Mr Sukhdev Singh (a director of Cudgegong Australia Pty Limited) (Cudgegong), and the affidavit of Mr Singh sworn on 16 August 2013 which states that Cudgegong's only asset was the acquired land (par 8). For these reasons Cudgegong requires the advance payment in order to be able to fund the proceedings (at par 9). Cudgegong would not be able to otherwise fund the proceedings unless it were in receipt of an advance payment or an amount representing part of the compensation to which Cudgegong is entitled under the Land Acquisition (Just Terms Compensation) Act 1991 (the Just Terms Act) (par 10). 6A draft Notice of Appeal and draft Summons seeking leave to appeal was tendered by Golden Mile (exhibit A).

Whether prejudice to Golden Mile because of operation of the Just Terms Act 7Cudgegong submitted that there would be no prejudice to Golden Mile if a stay was not granted and Cudgegong received the advance payment because of the operation of the Just Terms Act. This submission about the operation of the Just Terms Act was opposed by both Respondents. Transport for NSW (Transport) made submissions on this issue only. I will deal with this issue first. 8Relevant sections of the Just Terms Act provide: 45 Deemed acceptance of offer of compensation (1) If a person entitled to compensation under this Part does not, within 90 days after receiving a compensation notice: (a) accept the amount of compensation offered by the authority of the State, or (b) lodge with the Land and Environment Court an objection to the amount of compensation offered, the offer of compensation is taken to have been accepted. (2) Such an acceptance is subject to any decision of the Land and Environment Court on an objection lodged after the 90-day period. (3) The authority of the State must, on such an acceptance taking effect, pay the amount of money concerned into a trust account kept under this Part and pay the money to the person entitled to it on receipt of a claim for compensation, deed of release and indemnity (duly completed) and any relevant documents of title. 48 Advance payments of compensation etc (1) An authority of the State may, at any time after land is acquired, make an advance payment of compensation to any person who the authority considers is entitled to the compensation. (2) An advance payment may be made on application by the person or without any such application if the person agrees to accept the advance payment. (3) The acceptance by a person of an advance payment of compensation does not constitute an acceptance of any offer of compensation made by the authority of the State. (4) A person who receives an advance payment of compensation which exceeds the amount of compensation to which the person is entitled must repay to the authority of the State the amount of the excess. (5) Any advance or other payment of compensation to a person not entitled to the compensation must be repaid to the authority of the State that made the payment. (6) Any amount due to an authority of the State under this section may be recovered as a debt in any court of competent jurisdiction. 53 Compensation for interest not known to acquiring authority (1) If an authority of the State pays compensation under this Act to a former owner of land without regard to the existence of an interest in the land owned by another person (being an interest that was not known to the authority when that compensation was paid): (a) that other person's entitlement to be paid compensation by the authority in respect of the acquisition of that land is extinguished, and (b) his or her rights and entitlements against the former owner in respect of the interest are not affected by the divesting, extinguishing or diminution of the interest by this Act. (2) For the purposes of this section, an interest is known to an authority of the State only if it is a registered interest or an interest within the actual knowledge of the authority. 56 Market value (1) In this Act: market value of land at any time means the amount that would have been paid for the land if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer, disregarding (for the purpose of determining the amount that would have been paid): (a) any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired, and (b) any increase in the value of the land caused by the carrying out by the authority of the State, before the land is acquired, of improvements for the public purpose for which the land is to be acquired, and (c) any increase in the value of the land caused by its use in a manner or for a purpose contrary to law. (2) When assessing the market value of land for the purpose of paying compensation to a number of former owners of the land, the sum of the market values of each interest in the land must not (except with the approval of the Minister responsible for the authority of the State) exceed the market value of the land at the date of acquisition.

Cudgegong's submissions 9The perceived prejudice to Golden Mile is predicated on the assumption that, if successful on appeal, it would not receive compensation unless and until Cudgegong repays its advance payment. There is no basis for that assumption. If Golden Mile were to be successful on appeal, it would: (a)Create a statutory entitlement for Golden Mile to be paid an amount of compensation pursuant to s 45(3) of the Just Terms Act payable immediately after Golden Mile simply completes the relevant paperwork; and (b)Give rise to an obligation for Cudgegong to repay as a debt, the overpayment pursuant to s 48(6) of the Just Terms Act. 10As is set out at [46] of Cudgegong (No 1), on 17 January 2013 a form 3 compensation notice was sent to Golden Mile c/-ASIC and it indicated that the balance of the compensation money was being held in Transport's solicitors' trust account. If Golden Mile is successful in any appeal, then given that it has not lodged an objection to the amount of compensation offered within the relevant time (s 45(1)(b)), the offer will be taken to be accepted. Subsection (3) of s 45 operates in a non-discretionary manner. It offers no defence or excuse for the acquiring authority to withhold the "amount of money concerned". It must pay it once Golden Mile has completed the statutory paperwork. Accordingly, if Golden Mile is successful on appeal and is determined to have the compensable interest, then s 45 operates to ensure it receives the "amount of money concerned" which is the difference between that which was determined under s 42 and that which was paid to the mortgagees. This operates notwithstanding any advance payment having been made to another interest holder. 11There is no retention provision. There is no withholding provision in s 45 or in the appeal provisions of s 66 to s 68. An acquisition statute is to be construed liberally in favour of the dispossessed and narrowly against the acquiring authority (per the High Court in Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2011] HCA 27; (2011) 243 CLR 442 Heydon J at [32]-[34]). The provisions of the Just Terms Act would not be construed to allow an acquiring authority to withhold payment without an express statutory provision to that effect. 12In this case (and in any appeal in which the Court determines compensation to be lower than the 90 per cent paid pursuant to s 48 and s 68) Transport would be required to make the payments it is required to make under the statute, such as pursuant to s 45 in favour of Golden Mile if successful on appeal. Transport can then enforce its rights under s 48 to recover the payment against Cudgegong. There simply cannot be any prejudice to Golden Mile. Transport does not (and could not) contend prejudice given the clear operation of the statutory provisions. Absent any prejudice there is no basis for the stay.

Respondents' submissions 13Both Golden Mile and Transport contested this approach to the construction of the Just Terms Act. 14Transport argued that under s 56(2) of the Just Terms Act there is one market value only which must be shared by all interest holders, unless the Minister approves otherwise. The scheme of the Act does not result in an additional market value springing up if Golden Mile is found on appeal to have a compensable interest. This approach is confirmed by s 53(1). 15If Golden Mile succeeds in the appeal, on Cudgegong's construction of the Just Terms Act there will be two interests/market values which will need to be considered in relation to the advance payment. Section 56(2) limits advance payments under s 48. If a stay is granted and Golden Mile's appeal is successful there will be a requirement for a different exercise of discretion as between two potential interest holders of the one available sum of market value remaining (after payment made to the mortgagees). 16Golden Mile also submitted that s 48 does not assist even if regard is had to Cumerlong. There is a principle of statutory construction that good faith does not suffer the same thing to be exacted twice per Oliver Jones, Bennion on Statutory Interpretation (6th edition, 2013, LexisNexis) at 988. Section 45(3) does not provide an absolute right to compensation to Golden Mile. Its protection under that section would be very insecure.

Possible prejudice to Golden Mile and Transport by operation of the Just Terms Act 17The issue of statutory construction is raised by Cudgegong for the first time at the hearing of this urgent application for a stay of Order 1 pending determination of an application for leave to appeal against the finding in Cudgegong (No 1). I am not aware, and the parties did not have adequate time to determine, if the issue has been considered before by this Court. No case was provided which has considered this issue. This Notice of Motion should be determined promptly. I do not therefore have time for lengthy consideration of the interaction, if any, between s 45 and s 48, and s 53 and 56(2) of the Just Terms Act, which is the essential issue raised by the parties' conflicting submissions. 18The provisions of the Just Terms Act have to be read as a whole and with a purposive approach to construction. Section 33 of the Interpretation Act 1987 requires a construction which promotes the purpose or object of an Act over one which would not. Guidance on applying this approach was provided by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Tribunal [1998] HCA 28; (1998) 194 CLR 355 at 381 - 382. Their Honours stated that the "primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute", that a "legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals" and that "a court construing a statutory provision must strive to give meaning to every word of the provision". Brennan CJ and McHugh J in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12 also referred to the necessity of applying a construction of a statute consistent with its purpose. Where words are plain and unambiguous they should be given their ordinary and grammatical meaning, per Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 305. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] the joint judgment (Hayne, Heydon, Crennan and Kiefel JJ) confirmed that statutory construction commences with a consideration of the language of the text, which may require consideration of the context, including the general purpose of the provision and the mischief it seeks to remedy. See also French CJ (in a separate judgment but agreeing with the orders of the joint judgment) at [4] - [5]. 19Cudgegong relied on s 45 and s 48 to argue that both it and Golden Mile can have an interest as an owner for which market value is payable. The import of these submissions is that there could be more than one market value, which by inference could exceed that which has been determined by the Valuer-General. Section 56(2) suggests otherwise given that it explicitly states that where there are several former owners their interests must total the market value at the date of acquisition. This suggests there can be only one market value payable by an acquiring authority, unless the relevant Minister approves extra payments, a rare occurrence I suspect. In terms of what the Court can consider, s 56(2) states that compensation payable to multiple former owners of acquired land cannot exceed the market value at the date of acquisition. That provision deals squarely with that subject matter and can be contrasted with s 45 and s 48 which are more like machinery provisions providing for the deemed acceptance of a Notice of Compensation under s 45 and for an advance payment to be made under s 48. I consider s 56(2) applies in the manner contended for by the Respondents and that s 45 and s 48 do not operate to confer separate rights to more than one market value in the manner contended for by Cudgegong. 20That view is confirmed by s 53 which addresses the circumstance where payment is made to one owner when an acquiring authority is unaware of another interest holder (owner) in land. In such circumstances the person who did not receive payment's right to compensation is extinguished and he or she only has a personal right to pursue the owner which did receive payment. Section 53 appears to operate in a manner which contradicts Cudgegong's approach to s 45 and s 48. 21I do not agree with Cudgegong's submission that there is no prejudice to Transport if Cudgegong's arguments are accepted in this case as Transport would be potentially liable for two lots of market value which payments would be from public funds. These should not be spent unless there is a legal obligation to do so. The prejudice in the making of an overpayment is to the wider community as the ultimate contributor of public funds. 22I do not consider the Just Terms Act can accommodate readily, if based on Cudgegong's view of s 45, a claim by Golden Mile in the event that its appeal is successful and Golden Mile is found to have an interest as owner which entitles it to market value. Golden Mile is not automatically protected by the Just Terms Act from an adverse financial outcome if no stay is granted. This approach to construction is not in conflict with the principles in Cumerlong in the sense that I do not consider they arise in the statutory construction exercise I have just undertaken.

Golden Mile's further submissions on stay application 23Cudgegong must demonstrate that there is a reasonably arguable appeal: Alexander at 694F. There need not be anything "special" or "exceptional" about the appeal, it is sufficient to demonstrate on a preliminary assessment that there are properly arguable grounds: Alexander at 695 E. 24The fact that the case raised novel or complex points of law or fact is relevant: Powerflex Services Pty Limited v Data Access Corporation (1996) 137 ALR 498; Alexander at 695 F. 25If there is "a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, the courts will normally exercise their discretion in favour of granting a stay" Alexander at 695C-D citing Scarborough v Lew's Junction Stores Pty Limited [1963] VR 129 at 130. 26The Court of Appeal "regularly stays execution on judgments pending an appeal where there is a risk that the plaintiff will be unable to repay the money without difficulty or delay if the appeal were to succeed": TCN Channel 9 Pty Limited v Antoniadis (No 2) [1999] NSWCA 104; (1999) 48 NSWLR 381 at 385 [15]. 27The stay will be ordered more readily if there is no risk of the claimant losing the benefit of the judgment by being prevented from enforcing it after the pending appeal, and is protected from financial consequences of any delay by the accrual of interest on the judgments in the meantime: TCN Channel 9 Pty Limited v Antoniadis (No 2). 28There is a real danger that Golden Mile will not be able to recover money from Cudgegong if the stay is not granted. In the transcript of 30 August 2013 p 123 attached to Mr Russell's affidavit, Mr Singh stated that Cudgegong's shareholders would have to raise the money required. Cudgegong does not have cash reserves. Cudgegong does not have other assets, as confirmed in Mr Singh's affidavit dated 16 August 2013 at par 8. In cross-examination by Transport's counsel on 30 August 2013 at p 129 in Cudgegong (No 1) Mr Singh made clear that Cudgegong would have to engage in capital raising from shareholders if required to repay an advance payment, as provided under s 48(4) of the Just Terms Act. Shareholders of a company cannot be compelled to raise funds. There is no certainty that Cudgegong would raise funds. 29The Court must balance the interests of justice in exercising its discretion. Any prejudice to Cudgegong is ameliorated by the advance payment sitting in an interest bearing trust account earning the rate of interest specified under the Just Terms Act. The sum is not being eroded. While the decision to make the advance payment was discretionary it was linked directly to the finding of which party had the relevant interest. Contrary to Cudgegong's submissions, House v R [1936] HCA 40; (1936) 55 CLR 499 is not applicable. The substantive issue in Cudgegong (No 1) was who held the relevant interest as owner.

Cudgegong's further submissions 30The ordinary principle is that a successful party is entitled to the fruits of the judgment. There must be sound reasons sufficient to justify the Court suspending that right: McBride v Sandland (No 2) [1918] HCA 54; (1918) 25 CLR 369 at 374. 31An applicant for a stay must show that the appeal raises serious issues for the determination of the appellate court: Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737 at [18] (Handley, Sheller and Ipp JJA). For there to be a serious question to be tried in relation to an appeal, there needs to be a prospect demonstrated to the Court that the appeal may succeed: Vaughan v Dawson [2008] NSWCA 169 at [18] (Campbell JA).

Prospects of the appeal are weak 32There is no actual appeal or holding summons filed in the Court of Appeal. Golden Mile has chosen to bring this application in the absence of any actual appeal, which significantly diminishes the ability of the Court to assess the merits of this putative appeal. Clearly, the Court considered the relative strengths and weaknesses of the cases the parties presented to it and determined the matter in Cudgegong's favour. Golden Mile has advanced nothing to demonstrate the incorrectness of the application of any principle or other error, other than being able to reiterate what it said in the trial which was not accepted by this Court. Cudgegong has been provided with a draft originating process in the Court of Appeal. It does nothing other than repeat what was put to this Court and which was ultimately rejected in the judgment. 33There are three further and significant matters which make an appeal of this type one of the most difficult for Golden Mile to bring. Firstly, it is an appeal strictly on a question of law pursuant to s 57(1) of the Land and Environment Court Act 1979 (the Court Act). Secondly, leave is required pursuant to s 57(4)(d) of the Court Act given it would be an appeal from an interlocutory decision. Thirdly, the decision of the Court involved the exercise of a discretionary power (pursuant to s 68(2)(b) of the Just Terms Act). 34Regardless of the approach to the Just Terms Act, s 48(4) applies so that Cudgegong is obliged to return any advance payment to which it is not ultimately entitled. The Court should not assume that Cudgegong will not pay back what it is required to in the future. Mr Singh swore evidence in Cudgegong (No 1) that he and other shareholders would raise the funds. As referred to in evidence in Cudgegong (No 1), Cudgegong has paid some $900,000 under mortgages to the mortgagee. It cannot be concluded that there is a material risk that Cudgegong will not repay amounts it is required to under s 48 of the Just Terms Act. Mr Singh's sworn evidence is that he and other shareholders would raise money if required to pay back the advance payment. This group has raised $900,000 in interest payments to Stacks under the former mortgages over the acquired land. The directors and shareholders of Cudgegong have demonstrated their capacity to raise substantial funds.

Stay should be granted in exercise of Court's discretion 35My finding in relation to the operation of the Just Terms Act above at par 17-22 means that Golden Mile's submission that if no stay is granted and advance payment is made to Cudgegong there is a real risk it will have difficulty recovering that amount from Cudgegong, is relevant to this application for a stay. That consideration arises even if Cudgegong is eventually under a legal obligation to repay any advance payment under s 48 (4)-(6). I consider there is a risk that Golden Mile will not recover the advance payment from Cudgegong. Both Golden Mile, in liquidation since 2007, and Cudgegong were or are investment vehicles. Mr Sukhdev Singh and two others are directors of Cudgegong and were also directors of Golden Mile. It was agreed in Cudgegong (No 1) that Cudgegong is a corporation controlled by persons who formerly controlled Golden Mile: Cudgegong (No 1) at [32]. 36Cudgegong's only asset now is the claim for compensation for market value under the Just Terms Act for the acquired land. Its interest as an owner was otherwise dissolved at acquisition. It has no cash reserves and the evidence of Mr Singh is that it requires the advance payment to continue these proceedings. While the directors of Cudgegong have been able to raise some $900,000 in interest payments under mortgages to Stacks and while Mr Singh has given sworn evidence that he and other shareholders would raise additional capital if required to pay back the advance payment, for the reasons advanced by Golden Mile based on evidence in Cudgegong (No 1) outlined above in par 28, there is a real risk that the necessary capital raising will not occur. I do not have direct evidence from those shareholders referred to by Mr Singh and their future intention cannot be tested (to the extent this could realistically be done in any event). On the assumption Golden Mile is successful in the appeal and the advance payment if made to Cudgegong has to be repaid in whole or part, there will be no benefit accruing to the directors and shareholders of Cudgegong to offset against any capital raising. There is no legal obligation on shareholders to raise capital so that there is a real risk this will not occur. This situation suggests that Golden Mile's appeal will be rendered nugatory. 37As to prospects, I do not agree with Cudgegong's submissions. While this is an interlocutory matter resulting in a discretionary decision to order an advance payment, that decision arose directly from the resolution of the substantive legal issue of who had rights to compensation as an owner under the Just Terms Act in the unusual circumstances in this matter. Those circumstances raise several complicated legal issues that have not required determination in the context of the Just Terms Act before, and would arise for determination in the Court of Appeal for the first time. I am comfortable in accepting that Golden Mile has an arguable case at least, given the novel matters that arose for determination before me. House v R does not apply, contrary to Cudgegong's submission that it does. 38I consider there are sound reasons which justify suspending the right of Cudgegong to have the benefit of the judgment. Considering the matters in Alexander, there is an arguable appeal supportable by proper grounds. The appeal may well prove abortive if the appellant succeeds and a stay is not granted. The interests of justice and the balance of convenience favour the grant of a stay as sought in Golden Mile's Notice of Motion. The status quo is preferable whereby the money is preserved and continues to accrue interest as required under the Just Terms Act under the control of Transport's solicitors. 39Golden Mile's leave to appeal application must be pursued expeditiously and whether an order to that effect will be made or an undertaking be required will be discussed with its representatives.

Orders 40The Court makes the following orders: (1)Order 1 in Cudgegong Australia Pty Limited v Transport for NSW [2014] NSWLEC 19 made 13 March 2014 is stayed until the date of final disposition of any application for leave to appeal lodged with the NSW Court of Appeal. (2)Costs are reserved.

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: 15 April 2014

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (12 paragraphs)

Parties

Cases Cited (23)

Cited By (4)