First Applicant v Respondent

PRACTICE AND PROCEDURE - Summary judgment application - Civil Procedure Act 2010 (Vic), ss 63 and 64 - Whether proceeding should be dismissed where if amended it may have a real prospect of success - Circumstances in which the Court should exercise its discretion under s 64 to order a proceeding go to trial despite there being no real prospect of success.

1 At the commencement of this proceeding, the applicants were the owners 555 Donnybrook Road, Mickleham (Property).[1] In August 2010 a Public Acquisition Overlay was introduced into the Hume Planning Scheme, reserving land to be acquired by the Roads Corporation[2] for the Outer Metropolitan Ring/E6 Transport Corridor (PAO 3).[3] PAO 3 affects a part of the Property.

2 On 28 May 2015, the applicants gave the respondent 60 days' notice of their intention to sell the Property.[4] On 8 August 2016, the applicants entered into a contract of sale of a part of the Property (Contract).[5] On 21 December 2016 the applicants served on the respondent a Notice of Claim (dated 20 December 2016) pursuant to s 106 of the Planning and Environment Act 1987 (Vic) (PE Act) relating to the loss on sale suffered as a result of PAO 3 (Claim).[6]

3 This proceeding was commenced on 8 March 2018 by Notice of Referral under s 80(b) of the Land Acquisition and Compensation Act 1986 (Vic) (LAC Act),[7] and in accordance with the procedure required by r 8.15 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) (Referral).[8] By the proceeding, the applicants claim compensation for financial loss suffered 'as the natural, direct and reasonable consequence' of the Property being reserved for a public purpose under a planning scheme.[9] That claim is made under Pt 5 of the PE Act.

4 The respondent applies to dismiss this proceeding summarily pursuant to s 63(1) of the Civil Procedure Act 2010 (Vic) (CPA).[10] The respondent contends, in a nutshell, that the right of the applicants to compensation under Pt 5 of the PE Act has not arisen because, as Richards J found in Plunkett v Roads Corporation,[11] the relevant trigger event entitling the applicants to compensation under ss 98(1), 99(b) and 106 of the PE Act is the 'sale of the land' and that occurs when the Contract is completed. That is not due, finally, until on or about 8 August 2020.

5 The applicants contend that the proceeding should not be dismissed or struck out and that instead, it should be adjourned to a date after about 8 August 2020, or fixed for trial after that date. They submit that there is a construction of the PE Act that is not fanciful, which is at odds with the decision of Richards J in Plunkett, in accordance with which the relevant trigger event entitling the applicants to compensation under ss 98(1), 99(b) and 106 of the PE Act is the entry into the Contract. Alternatively, because the Contract provides for completion (that is, settlement) of the sale in stages, the Referral may be amended so that it relates to each separate settlement as it occurs. Two such settlements had occurred at the time of argument and there should have been a third in August 2019. There were also other arguments put against dismissal of the proceeding to which I shall refer.

6 For the following reasons I have concluded that unless the applicants seek, and are permitted, to amend the Referral so as to claim that settlement of Stages 1, 2 and/or 3 under the Contract gives rise to a right to compensation pursuant to Pt 5 of the PE Act, the proceeding should be dismissed.

7 The applicants are 69 years old and 62 years old respectively.[12] They purchased the Property on 11 September 1990.[13]

8 Under the Contract, as originally entered into, the applicants retained their dwelling and an area of land around it (dwelling lot) and sold the balance of the Property (the Land), described alternatively as Lot 1 on an unregistered 2 lot plan of subdivision (2 Lot plan)[14] or Lots A, C, D, E and F on an further unregistered plan of subdivision (primary plan).[15] Lot 2 on the 2 Lot plan and Lot B on the primary plan was the applicants' dwelling lot. It is evident from the Contract that the objective was to subdivide the Land by the primary plan, rather than the 2 lot plan, and to complete or settle the Contract in stages at intervals of 12, 24, 36 and 48 months from the day of sale, being 8 August 2016. The 2 Lot plan was only to proceed if the primary plan could not be registered by 11 months after the day of sale.[16]

9 The purchase price for the Land was specified as $30,500,000 payable by a deposit of $3,050,000, half to be paid on the day of sale and half to be paid 'on the earlier of 12 months after the day of sale or registration of either Stage 1 plan of Subdivision or the 2 Lot Plan'.[17] The balance of $27,450,000 was then to be paid in accordance with Special Condition 16 or 17. Special condition 16 provided for four staged settlements, with the price for each stage described as '1/4 of the Price' and the balance stated as '1/4 of the Balance', which refers to the balance of the purchase price. Special Condition 17 operated if the primary plan was not registered and the 2 lot plan was registered, in which case settlement and payment of the whole of the balance of the purchase price was to occur 10 business days after is registration, the purchase price being funded by a mortgage back to the applicants.

10 The Contract was varied by Deed of Variation dated 8 May 2017, and further varied on 27 April 2018 by a Variation letter.[18] The explanation for the variations was that the Council did not support the staged subdivision of the Land but will permit the subdivision under 5 separate plans of subdivision. After those amendments, the staged settlements under the Contract were described as:

(a) Stage 1 - The property is Parcel A and Parcel B, and the settlement date is the later of 12 months from the Days of Sale or 10 business days after registration of the Stage 1(b) Plan of Subdivision;

(b) Stage 2 - The Property is Parcel C, and the settlement date is 24 months after the Day of Sale;

(c) Stage 3 - The Property is Parcel D, and the settlement date is 36 months after the Day of Sale; and

(d) Stage 4 - The Property is Parcel E, and the settlement date is 48 months after the Day of Sale.

11 Special Condition 17 provided for the failure to register the Stage 2, Stage 3 and Stage 4 Plans of Subdivision. For example, pursuant to 17.2, if the Stage 3 Plan of Subdivision is not registered ten business days prior to the Stage 3 Settlement Date, the purchaser must on the Stage 3 Settlement Date settle on and take title to the Balance Land, which is all the Land not transferred under a prior settlement. Special Condition 19 then provides for termination of the Contract of Sale if, 'despite the parties' best endeavours, neither the Plan of Subdivision or the 2 Lot Plan is registered by the date which is 48 months from the day of sale'.[19]

12 Special Condition 28.1 provides that if an insolvency event occurs the applicants may terminate the contract at any time after the insolvency event.

13 On 5 November 2017 Stage 1 of the Contract of Sale settled, the applicants received $7,625,000, and parcels A and B, being lots in two plans of subdivision, were transferred to and registered in the name of the purchaser.[20] Similarly, Stage 2 settled on 8 August 2018 and the applicants received the second instalment of the purchase price and another parcel of the land, being a lot in another plan of subdivision, was transferred to and registered in the name of the purchaser.[21]

14 At the time of the hearing of this matter, Stage 3 and Stage 4 of the Contract of Sale were yet to settle. Stage 3 was due to settle on or about 8 August 2019. Stage 4 is due to settle on 8 August 2020 and an analysis of the several subdivision reveals that the part of the Land affected by PAO 3 is entirely within the part of the Land to be transferred at Stage 4.

We are the registered proprietors of the land comprised in Certificate of Title Volume 9829 Folio 358, known as 555 Donnybrook Road, Mickleham ("the Land").

We sold part of the Land by Contract of Sale dated 8 August 2016 at a lower price than we might reasonably have expected to get if the Land had not been subject to Public Acquisition Overlays PAO1 and PAO3 under the Hume Planning Scheme.

We claim compensation of $24,140,000 based on a Loss on Sale Compensation Assessment prepared by Urbis (valuation date 8 August 2016) plus the cost and expenses of this claim (valuer's costs to date $28,006; planner's costs to date $31900; legal costs to date $26794).

16 The Claim was accompanied by a certificate of valuation dated 8 August 2016, in the sum of $24,140,000.

17 The Referral by which this proceeding was commenced was served on the respondent on 3 May 2018,[22] and states:

The claim in dispute is in respect of land described as Lot 1, 555 Donnybrook Road, Mickleham, Victoria 3604 being Lot 1 on unregistered plan of subdivision PS743460U or in the alternative Lots A, C, D, E and F on unregistered plan of subdivision PS803939G, being part of the land contained in Certificate of Title Volume 9829 Folio 358.

18 On 24 August 2018, an order was made by Clayton JR adjourning the proceeding pending the hearing and determination of a preliminary question in Plunkett v Roads Corporation [2019] VSC 39 (Plunkett). The question to be resolved in that matter was when the 'sale of land' occurred for the purposes of ss 99 and 106 of the PE Act.

19 The applicable law in relation to summary dismissal is not in dispute. Part 4.4 of the CPA sets out the test for summary judgment: a court may give summary judgment if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, has no real prospect of success (s 63).

20 This liberalises the rules governing summary judgment in Victoria, such that it is easier to dispose of unmeritorious claims or defences summarily. The Court of Appeal has stated that the test:

[S]hould be construed as one of whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success; that the 'real chance of success' test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent's case is not 'hopeless' or 'bound to fail', it does not have a real prospect of succeeding.[23]

21 The test must be applied according to its own terms and not according to considerations of whether the proceeding is 'hopeless' or 'bound to fail'. To adopt 'an unduly constrained, historical approach to the construction of s 63' would 'subvert the purpose of the provision'.[24]

22 Courts must, however, continue to exercise the power to terminate proceedings summarily with caution. Courts should therefore only exercise the power if it is clear that there is no real question to be tried. This is so irrespective of whether an application for summary judgment is made on the basis that: the pleadings do not disclose a reasonable cause of action, and no amendment could cure this error; or the action is frivolous, vexatious or an abuse of process; or the application for summary judgment is supported by evidence.[25]

23 The power to give summary judgment must be exercised in accordance with the overarching purpose of the CPA and taking into account the fact that, if granted, a party will be deprived of the chance to pursue its claim or defence.[26]

24 These principles were confirmed by the Court of Appeal in Mandie v Memart Nominees Pty Ltd where Kyrou, Ferguson and McLeish JJA observed:

According to Lysaght: a prospect which is not 'real' is 'fanciful'; although the 'no real prospect of success' test in s 63(1) of the CP Act is more liberal than the common law test of 'hopeless' or 'bound to fail', there may not be much difference between them in practice; and, properly understood, a real question to be tried is one which realistically might result in the respondent to an application for summary judgment succeeding in the proceeding.[27]

25 In Ottedin Investments v Portbury Developments,[28] Dixon J quoted the following comments of French CJ and Gummow J concerning summary dismissal:

Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.[29]

26 If there is no real prospect of success, a court may nevertheless allow a matter to proceed to trial if:

(a) it is not in the interests of justice to summarily dispose of the proceeding (s 64(a)); or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate (s 64(b)).

27 Whether a proceeding should be allowed to go to a full hearing on the merits must be determined according to the circumstances of each case: Barber v State of Victoria.[30]

28 Part 5 of the PE Act establishes a scheme for compensation in circumstances where land is reserved for a public purpose, commonly known as 'planning blight'. It delivers compensation for 'any adverse effects on the use or ability to dispose of land as a result of a reservation'.[31] Access to compensation is available 'only upon the happening of certain 'trigger' events'.[32]

29 Section 98 confers the right to claim compensation, it provides:

(1) The owner or occupier of any land may claim compensation from the planning authority for financial loss suffered as the natural, direct and reasonable consequence of -

(a) the land being reserved for a public purpose under a planning scheme; or

(b) the land being shown as reserved for a public purpose in a proposed amendment to a planning scheme of which notice has been published in the Government Gazette under section 19; or

(c) a declaration of the Minister under section 113 that the land is proposed to be reserved for a public purpose; or

(d) access to the land being restricted by the closure of a road by a planning scheme.

(2) The owner or occupier of any land may claim compensation from a responsible authority for financial loss suffered as the natural, direct and reasonable consequence of a refusal by the responsible authority to grant a permit to use or develop the land on the ground that the land is or will be needed for a public purpose.

30 The rights to compensation afforded in subsections 98(1)(a)-(d) are described as 'inchoate', crystallising upon one of the triggering events set out in s 99.[33] Relevantly, s 99(b) states that a 'right to compensation and the liability of a planning authority or responsible authority to pay compensation arises - under section 98(1)(a), (b) or (c), on the sale of the land concerned under section 106'. The language of this provision is a little awkward. The reference to 'under section 106' refers back to the right to and liability for compensation and not to the sale being made under s 106.

(1) The owner of land may claim compensation under section 98 after the sale of the land if -

(a) the owner of the land sold it at a lower price than the owner might reasonably have expected to get if the land or part of the land had not been reserved or proposed to be reserved; and

(b) before selling the land, the owner gave the relevant authority not less than 60 days notice in writing of the owner's intention to sell the land.

(2) The owner is not required to give notice under subsection (1)(b) if -

(a) the owner and the relevant authority have agreed that the owner does not have to give notice; or

(b) before or after the sale, the Minister exempts the owner from giving notice on the ground that the requirement to give notice would cause hardship to the owner.

32 Section 104 of the PE Act sets a cap on the amount of compensation that can be claimed under s 98:

The compensation payable for financial loss under section 98 must not exceed the difference between -

(a) the value of the land at the date on which the liability to pay compensation first arose; and

(b) the value that the land would have had at the date if the land had not been affected by any circumstance set out in section 98(1) or (2) or 107.

33 Section 105 provides that Parts 10 and 11 and s 37 of the LAC Act apply to the determination of compensation under Pt 5 of the PE Act as if the claims were a claim under the LAC Act. It allows a disputed claim to be referred to the Supreme Court or the Victorian Civil and Administrative Tribunal for determination.

34 In Capela Emerton J described the statutory scheme, so far as relevant to the issue in that case,[34] in short as:

(a) The owner of land may claim compensation from the planning authority for 'financial loss suffered as the natural, direct and reasonable consequence' of the land being reserved for a public purpose under a planning scheme (s 98(1)(a)).

(b) A right to compensation and the liability of a planning authority to pay compensation arises under s 98(1)(a) on the sale of the land under s 106 (s 99(b)).

(c) The owner of land may claim compensation under s 98(1) after the sale of the land if the land sold for a lower price than the owner might reasonably have expected to get if the land had not been reserved for a public purpose (s 106(1)(a)).

(d) A person does not have a claim for compensation in respect of any land if that person was not the owner of the land at the time the right to claim compensation arose (s 108(1)).

(e) A person who acquired land after its reservation does not have a claim for compensation in respect of financial loss suffered from its sale (s 108(2)).

35 The decision of Richards J in Plunkett is of particular significance to the current application. Consequently, it is necessary to set out her Honour's reasons in some detail.

36 In Plunkett her Honour was required to determine the separate question of when the 'sale of the land' occurred for the purposes of ss 99 and 106 of the Act. Mr and Mrs Plunkett had lodged a claim for compensation under s 98(1)(a) of the Act after a Public Acquisition Overlay was introduced into the relevant planning scheme, and after they had entered into a contract for the sale of the land, but before the contract was completed at settlement. The purchase price was $2,705,000, via an initial deposit of $500,000 and payment of the balance 160 days later. VicRoads contended that the Plunkett's claim was premature, as the land had not yet been sold.

37 Richards J commenced her analysis setting out the relevant provisions of Pt 5 of the PE Act, and identifying that the separate question regarding 'sale of the land' had significance under ss 99(b), 104, 106(1)(a) and 106(1)(b) of the Act. Her Honour then noted the principles of statutory construction, and quoted the observations of Gaudron J in Marshall v Director General, Department of Transport[35] in relation to the construction of statutory provisions conferring a right to compensation, noting that they should be construed 'with all the generality that their words permit'.[36] Richards J's reasons then traverse four separate areas of analysis: statutory text; statutory context; statutory purpose; and whether her Honour's preferred construction of the phrase 'sale of the land' produced absurd, unreasonable or anomalous consequences.

38 In relation to the statutory text, her Honour identified the phrase 'the sale of the land' as ambiguous, capable of meaning 'either an agreement to sell or a completed sale'.[37] After canvassing relevant authorities as to the meaning of the phrase in differing statutory contexts, Richards J concluded that the only principle that could be drawn was that the meaning of the phrase depended heavily upon the context in which it appeared.[38]

39 Her Honour found assistance in a series of Western Australian authorities considering the meaning of 'before selling the land' in the Metropolitan Region Town Planning Scheme Act 1959 (WA) as it was previously applicable. In particular, Richards J found the analysis of the Full Court of the Supreme Court of Western Australia in Bond Corporation v Western Australian Planning Commission [2000] WASCA 257; (2000) 110 LGERA 179 ('Bond') to be of assistance. At issue in that case was whether giving notice 'before selling the land' meant before a conditional contract for the sale of the land or before a conveyance of the land by transfer. The Full Court found in favour of the latter. In contrast to Miller J at first instance, Ipp J (with whom Wallwork and Owen JJ agreed) determined that the relevant provision did not fix a notice period and that a reasonable notice period could not be implied. Rather, his Honour viewed the purpose of the notice 'before selling the land' provision as ensuring that the relevant authority was aware of the sale and able to investigate the transaction immediately. His Honour also identified the philosophy underlying the compensation scheme as compensation becoming payable when 'more concrete or tangible loss' was sustained, rather than loss merely by the reservation of land for public purposes. That is, 'when the owner of the land actually receives less money for the land than he or she would have received had there been no reservation'.[39]

40 Regarding the statutory context, her Honour considered a number of submissions advanced by the parties. One submission by the Plunketts was that only an 'owner' has a claim for compensation, indicating that the right to compensation arises on entry into the contract, not upon settlement when ownership changes. This was rejected by her Honour.[40]

41 The Plunketts also contended that the requirement to give notice in s 106(1)(b) of the PE Act was to enable the authority to purchase or compulsory acquire the land. This was also rejected by Richards J, who viewed the notice provision as 'no more than a mechanism to bring an imminent compensation claim to the attention of the authority that will have to pay the compensation'.[41] There were no indications of the purpose advanced by the Plunketts elsewhere in the PE Act or in any of the extrinsic materials.[42] Her Honour also rejected the contextual indicator advanced by the Plunketts regarding s 111(3)(b), which refers to the repayment of compensation 'on the sale or transfer of land', noting that an interest may be transferred other than by way of sale, and that transfer is not identical to the sale transaction.

42 VicRoads pointed to express references to 'contract for the sale of land' as indicating that 'sale of land' did not mean entering into a contract of sale. Richards J viewed this contextual factor as a slight or peripheral 'indication that, in the PE Act, a contract for the sale of land is a separate and distinct concept from the sale of land'.[43]

43 Regarding context, her Honour also considered the existing state of the law regarding the sale of the land when the PE Act was first enacted. In this discussion, her Honour noted the significance of provisions in the Sale of Land Act 1962 (Vic) that allowed for the cancellation of a contract of sale, and referred to a feature of the transaction being that 'it can take almost infinitely various forms'.[44] Here, her Honour said:

Some contracts are more complicated, with a number of instalment payments to be made, and an agreed settlement period of years rather than months. Completion may also be conditional on the happening of an event such as approval of a sub-division or grant of a planning permit. VicRoads included a number of examples of these more complex contracts for the sale of land in the agreed court book. Common to all of these forms, however, is that completion of the sale transaction depends upon the fulfilment of the conditions specified in the contract. Even the simplest contract for the sale of land is conditional upon payment of the purchase price.[45]

44 Richards J then identified that the construction of 'sale of land' in ss 99 and 106 needed to accommodate both general law land and Torrens system land. In this regard her Honour noted that in the case of general law land, title is usually conveyed upon completion of the contract. In the case of land under the operation of the Transfer of Land Act 1958, her Honour stated:

The relationship between vendor and purchaser is essentially contractual, with the purchaser's 'interest' in the land commensurate with the availability of specific performance of the contract. It is not until the contract becomes unconditional - usually upon payment of the full purchase price - that the purchaser can be regarded as the 'owner' of the land and the vendor as no more than a trustee for the purchaser. In the case of Torrens system land, it is then that the purchaser becomes entitled to be registered as proprietor of the land. This is reflected in the definition of 'owner' in the PE Act.

[The Plunketts] submitted that land is 'sold' when the interests of the parties are altered by entering into a binding contract of sale. That is, in my view, an oversimplification of the position. A sale of land begins at the point when a contract is entered into between vendor and purchaser, but the transaction is not completed until all of the conditions in the contract are fulfilled and the vendor conveys or transfers ownership of the land to the purchaser.[46]

45 Ultimately, her Honour concluded that none of the contextual matters identified provided a strong indication one way or the other as to what was meant by 'sale of land'. As such, her Honour viewed it as necessary to determine which meaning -whether at the beginning or end of the sale transaction - gave effect to the legislature's purpose.

46 After reviewing the objectives of the PE Act and extrinsic material, her Honour determined that the purpose of the compensation provisions in Pt 5 is to:

Provide for fair compensation for affected landowners, while also facilitating orderly land use planning for public purposes and conserving public funds by deferring the payment of compensation until actual loss is suffered.[47]

47 This was seen as consistent with the approach of Ipp J in Bond, and better served if 'sale of the land' in ss 99 and 106 meant 'completion of the contract for the sale of the land, when the full purchase price is paid and the contract becomes unconditional'.[48] In her Honour's view-

Until that time, the loss suffered in consequence of the reservation of the land for a public purpose remains prospective, contingent on completion of the sale. Until that time, it remains possible that the contract will fall through, that there will be no change in ownership, and that the vendor will be able to continue to use the land or sell it to another purchaser.[49]

48 Finally, Richards J considered whether her preferred construction would lead to such absurd, unreasonable or anomalous consequences that it could not have been intended by Parliament. In this regard, her Honour viewed the certainty of notice of a fixed settlement date, known in advance, ahead of the uncertainty of the date on which a contract of sale is to be entered into. This was also seen to favour landowners. Assessing loss on the sale at settlement was not viewed as creating any absurdity or inconvenience, nor was an extended settlement period over years. In relation to the latter, her Honour viewed the uncertainty as inherent to 'both the nature of the compensation scheme in Pt 5 and in an agreement to sell land over a lengthy period'.[50] Further:

...a contract for the sale of land with a long settlement period is necessarily uncertain, all the more so if it is contingent on complex conditions being met. The contract may not be completed and the land may not, in the end, be sold. An owner who agrees to sell land on such terms must accept the uncertainty that comes with that bargain.[51]

49 In the event, her Honour was not persuaded that any 'absurd, unreasonable or anomalous results would flow from reading 'sale of the land' in ss 99 and 106 to mean 'completion of the contract for the sale of the land'.

50 The Plunketts had commenced two proceedings in relation to the claim for compensation, one after entering into the contract of sale but prior to completion -before 'their claim had arisen' - and one after completion, 'by which time the Plunketts did have a right to claim'. Her Honour did not resolve the issue of which proceeding was to be used to assess the claim. However, VicRoads submitted that the first proceeding could continue, while the Plunketts raised some doubts as to jurisdiction.

51 According to the respondent, the applicants' claim has no real prospects of success. Section 106 is said to be a provision that introduces a threshold to making a claim under s 98. Section 106(1) 'informs the meaning of s 98(1) to the extent that the 'financial loss' in s 98(1) is the financial loss described in s 106(1)(a)',[52] and s 106(1)(a) provides that the owner of land may only claim compensation under s 98 after the 'sale of the land'.

52 It is asserted that in accordance with Plunkett, the sale of the Property will 'only occur on completion of the Contract, when the full purchase price is paid and the contract becomes unconditional'.[53] This is not due to occur until 8 August 2020, and therefore the applicants are not yet entitled to claim compensation under s 98(1)(a) because the threshold requirement has not been satisfied. The respondent emphasised that in Plunkett, Richards J was 'cognisant of the fact that property transactions can take varied and complex forms',[54] and that a copy of the applicant's Contract of Sale was included in the court book that her Honour considered. Also, the essential theme of her Honour's reasons was that concrete and tangible loss is not suffered until the contract is completed.[55] Here, the purchase price has not been paid in full and as such, there has not been a sale.

53 The respondent also submits that the Referral describes the area of land the subject of the dispute as the Land as a whole, not stages or parcels of land that exclude the whole,[56] or in the alternative, Lots A, C, D, E and F.[57] As such, it is not open on the Referral to 'contend that the case is put on the basis of individual sales'.[58]

54 The respondent submitted that the staging of the settlements does not have the consequence that the 'sale of land' occurs with respect to each stage, and even if it did, the stages that have settled 'do not comprise land that is reserved or proposed to be reserved',[59] as also required by s 106(1)(a). Moreover, the certificate of valuation purports to be in respect of the entirety of the Property, not Stages 1 and 2.

55 In circumstances where there is a single contract for the sale of land, and a single price struck (divided between the several stages arbitrarily and without reference to the value of the particular parcel of land settled at each stage), the respondent submitted it is 'artificial to treat staged settlements as representing individual sales of land in respect of which claims for compensation may be made'.[60] In this regard the respondent submitted:

A proper determination of financial loss requires a holistic assessment of the impact a reservation or proposed reservation has had on the land that is the subject of the sale. This is because often, as in the present circumstances, the sale price itself reflects the purchaser's holistic assessment of the impact of a reservation or proposed reservation on the price they are willing to pay. In circumstances where there is a single contract for the sale of land, and a single price struck for that land, it is artificial to treat staged settlements as representing individual sales of land in respect of which separate claims for compensation may be made.[61]

56 Regarding the application of s 64 of the CPA, as a preliminary point the respondent submits that the Court should take heed of the opening words of the section, which provide 'a court may order that a civil proceeding proceed to trial ...'. Here, the applicants' position is that the hearing of the proceeding should be adjourned, as distinct from making an order for it to proceed to trial.[62]

57 On the question of possible prejudice arising if the applicants or one of them should die before completion of the Contract as a whole on or about 8 August 2020 (as to which see below at [67]), the respondent contends that the applicants' reliance on Capela is misconceived. The decision to structure the sale of land via staged settlements over four years was that of the applicants, and they are also free to vary the contract at any time, or still make a claim un[63]r s 98(2).63

58 The respondent also contends that it is not in the interests of justice to adjourn the proceeding based on speculation that the law may change. Moreover, it has a legitimate interest in ensuring that referrals are only made on a correct basis, and if the matter is adjourned, the respondent is potentially exposed to penalty interest.

59 In relation to s 64(b) of the CPA, insofar as the applicants seek to rely on the general principles on which compensation is to be based in s 41 of the LAC Act, and the lack of expert evidence surrounding the question of severance impact upon the remaining land (as to which see below at [66]), this only emphasises the premature nature of the referral. Financial loss cannot be assessed now because the Contract has not been completed. A number of things could occur prior to 8 August 2020 to impact upon the proper assessment of financial loss. Further, 'the extent to which surrounded land might be affected in value is not the subject of the compensatory regime' under Pt 5 of[64]he PE Act.64

60 The applicants assert that their claim has real prospects of success for the purposes of s 63 of the CPA. They contend that the proceeding was not premature at the date of the Referral and that the claim for compensation was consistent with conventional practice prior to the decision in Plunkett. Plunkett did not deal with a contract such as the current Contract and as such, it has no application to this case.[65] Further, for the purposes of demonstrating that there is a real prospect of success, the applicants contend that Plunkett was wrongly decided. In this regard the applicants assert that Richards J erred in focussing her attention and analysis not on the language of the Act, but upon the decision of the Full Court of the Supreme Court of Western Australia in Bond.

61 According to the applicants, a key feature that the Full Court relied upon in Bond, and that Richards J discussed, was the purpose of the notice of intention to sell. In Bond, the Full Court rejected the purpose as being to provide the relevant authority with an opportunity to acquire the property rather than meet the compensation claim. As noted by her Honour, this was because the purpose could not be achieved in the absence of a minimum fixed notice period. However, the PE Act does have a minimum fixed notice period. As such, the applicants assert that Richards J fell into error in relying upon the Full Court's analysis and that the purpose identified by her Honour for the notice of intention was not a correct construction of the statutory language.[66] The applicants also drew the Court's attention to the comments of Keane J in Western Australian Planning Commission v Southregal Pty Ltd,[67] where his Honour called into question the correctness of the analysis of the Full Court in Bond. In his Honour's view, there was a difficulty in determining that 'sale' meant 'conveyance' rather than 'agreement to sell', yet there being a requirement for the owner to take steps to obtain a fair and reasonable price for the land.[68] They acknowledged, however, that Keane J's comments turned on the application of subsection establishing a good faith element, which has no counterpart in Victoria.[69]

62 Additionally, Richards J is said to have erred in her conclusions regarding the potential for absurd or inconvenient results. Although her Honour referred to more complex contracts, there is no discussion of the type of contract in this case, that has four dates for settlement, settlements paid, transfer of the land on four separate dates and a quarter of the purchase price paid with each transfer. Her Honour's analysis in this regard would not form part of the ratio. Further, with a contract such as the Contract, the capacity is said to be there for absurd, unreasonable or anomalous results when actually assessing the compensation,[70] because the value of the land is determined at a different time from the contract.

63 Similarly, if land is compulsorily acquired between the date of contract and the date of settlement, while the purchaser would receive the compensation for the compulsory acquisition, in all likelihood, the vendor would receive from the respondent the balance that they would have received under the contract. In the words of counsel for the applicants, 'it's a mess' compared to financial loss being assessed at the date of the contract, before a purchaser is involved.[71] Ultimately, the applicants argue that there is more than a sound basis to argue that Plunkett is plainly wrong,[72] and all that is required in the current circumstances is to show that such an argument is not fanciful.

64 In the alternative, the applicants assert that even if Plunkett is correct, the Notice of Referral occurred after the settlement of Stage 1 and Stage 2 of the Contract.[73] As such, there is said to be a strong argument that they have a present crystallised entitlement to be paid compensation at least in relation to Stage 1 and Stage 2. At payment for those stages, the Contract became unconditional in respect to the parcel to which the stage related. Actual loss was suffered when Stage 1 was sold for $7.65 million, and similarly for Stage 2. They dispute the respondent's suggestion that s 106 of the PE Act has no application, arguing that-

...what is required in order for a person to make a loss on sale claim is if the owner of the land sold it at a lower price, all of the land, than the owner might reasonably expect to get if the land or part of the land had not been reserved or proposed to be reserved.[74]

Here, the first part of the land was sold at a lower price, because the price was apportioned across the whole. Furthermore, in accordance with ss 110 and 111 of the PE Act, when compensation is paid, it has to be noted on the title of the affected land, and it is not limited to the reserved land.

65 It was submitted in support of the argument that, assuming Plunkett is correct, the applicants have a present crystallised entitlement to be paid compensation at least in relation to Stage 1 and Stage 2, that it is quite usual in claims for planning blight for applicants to amend their claims.[75] In this case, if amendment is required to make a claim based on the sale of the Land occurring in stages, then it is not appropriate to grant summary judgment. The claim in relation to Stage 1 preceded the Referral. In circumstances where an amendment to a claim would rectify what was otherwise a candidate for summary judgment, then that is a relevant consideration.

66 The applicants also asserted that s 41 of the LAC Act applies to any assessment of compensation in the case of a partial acquisition of the Land.[76] They submitted that the impact of the public acquisition overlay upon value and, therefore upon financial loss, is rarely confined to the actual land reserved. Invariably, financial loss will comprise both the value of the land reserved and the financial impact resulting in the diminution in value of the balance of the Land. For example, by making a subdivision of that land less efficient and, therefore, more expensive. The severance impact upon the remaining land is said to be a matter that will need to be determined as part of any trial. However, no authorities or analysis of the legislation bearing upon the application of the matters in s 41 of the LAC Act to a claim under s 98(1) of the PE Act were addressed. The submission proceeded on the assumption that loss attributable to severance referred to in s 41 of the LAC Act would be applicable to the assessment of compensation.

67 In relation to s 64(a) of the CPA, if the applicants' claim is dismissed, it is asserted that they will suffer very significant prejudice. First, they will be deprived of their right to claim interest from the date of the Referral. By reason of the decision in Capela, it is asserted that they will also be at risk of losing their substantive right to claim compensation for financial loss. In Capela, Emerton J determined that, in circumstances where land was reserved prior to the death of an owner, the executors of the deceased owner were not entitled to claim compensation under s 98(1) of the PE Act as they were not the 'owners' at the time of the reservation.[77] In reaching this conclusion, her Honour noted the 'significant unfairness' involved.[78] The applicants contend that their ability to claim compensation may be lost should one of them die prior to August 2020, and such unfairness can be avoided if the summarily dismissal claim is rejected. Second, if the proceeding is dismissed the applicants will be deprived of what was otherwise their entitlement to statutory interest pursuant to s 60 of the Supreme Court Act 1986 (Vic).

68 In addition to prejudice, also relied upon for the purposes of s 64(a) is the history of litigation, including the respondent's previous approach to claims prior to Plunkett and the controversy that surrounds Plunkett. Furthermore, the applicants' emphasised that they are seeking no more than an adjournment or the fixing of a trial after August 2020.

69 Regarding s 64(b) of the CPA the applicants assert that the proceeding cannot be summarily dismissed because at present, no expert evidence has been filed on the question of severance impact upon the remaining land. If it is appropriate to assess loss on four different dates, such expert evidence will need to be adduced. Consequently, the matter is not one amenable to summary dismissal as the contract is complex, and close analysis of the facts is required.

70 The applicants contend that the appropriate course is for the proceeding to be adjourned to a date set after 8 August 2020 or to be set down for trial after that date. If the proceeding is summarily dismissed, their entitlement to claim interest from the date of the financial loss is lost, as is their ability to bring a claim in future should one or both of them die before August 2020.

71 The respondent relied upon two threads of argument in relation to s 63 of the CPA. First, that in accordance with Plunkett, the applicants' claim was premature as the Contract was not complete, and second, that it was inappropriate to view each stage of the Contract separately for the purposes of s 106 of the PE Act. In contrast, the applicants sought to question the correctness of Plunkett, and alternatively, assert that even if Plunkett was correct, it could be distinguished on the basis of the complexity of the Contract, or when viewed as four stages, fell within the approach of Richards J if the Claim and Referral is amended.

72 In Plunkett, Richards J concluded that 'sale of the land' in s 106 of the PE Act meant 'completion of the contract for the sale of land, when the full purchase price is paid and the contract becomes unconditional'. Prima facie, it appears difficult for the applicants to satisfy this requirement, as the Contract for Sale has not reached completion and full payment, specified as $30,500,000, has not been paid. However, as French CJ and Gummow J stated in Spencer v the Commonwealth,[79] summary processes must not be used to stultify the development of the law. Should this matter proceed to trial, it would be open to the applicants to contend that Plunkett was 'plainly wrong'. The question here is whether that argument has a real prospect of success in the sense that it is not fanciful.

73 It is not disputed that Richards J set out the applicable law correctly. Her Honour then thoroughly and systematically addressed the statutory text, context and purpose. The text was identified as ambiguous, and contextual analysis proved of limited assistance. Ultimately her Honour adopted a construction that she viewed as consistent with the purpose of the provisions in Pt 5 of the PE Act. This purpose was informed by the objectives of the PE Act and extrinsic materials, and seen to be consistent with the approach in Bond. The applicants assert that her Honour erred in relying upon Bond regarding the purpose of the provision. However, it is apparent that Richards J separately considered the Victorian provisions and extrinsic materials in relation to purpose. Her Honour reached a conclusion after reviewing those materials, then noted that it was consistent with the 'philosophy' identified in the analogous former Western Australian scheme.

74 The applicants also assert that her Honour erred in her conclusions in relation to the potential for absurd or inconvenient results. Specifically relied upon in this regard are difficulties surrounding the assessment of the value of the land at the time of completion of, rather than entry into, the contract, and difficulties that would arise if the land was compulsorily acquired before completion. Richards J addressed the former issue in her reasons, rejecting the submission that the different date of assessment would give rise to any absurdity or inconvenience.[80] As noted by the respondent, the Contract was provided to her Honour as an example of more complex contracts, albeit her Honour referred to such materials in her analysis of the approach to sale of land generally, and not the potential for absurd results. Richards J did, however, discuss long settlements and contingent complex conditions in her consideration of the latter, concluding that uncertainty is inherent in both the scheme established by Pt 5 and the an agreement to sell land over a lengthy period.

75 This is a case where, as the Claim and Referral are presently framed, the success of the applicants proceeding is critically dependent upon a proposition of law which would contradict a decision of this court by which I am bound. In accordance with the reasoning in Spencer v The Commonwealth,[81] I conclude that the proceeding as presently framed has no real prospect of success.

76 On the whole I am satisfied that the grounds on which the applicants have relied to argue that Plunkett is 'plainly wrong' have no real prospects of success. I would add that the ordinary meaning of 'sale' in relation to land is 'the transfer of property for money or credit'.[82]

77 Insofar as the applicants seek to argue that Plunkett has no application to the Contract due to its complexity, as already noted, it is apparent that Richards J was alive to the issue of contracts more complex than the one under consideration.[83] Her Honour referred to the prospect of instalment payments, and the common theme identified concerning all of the contracts reviewed (including the Contract in this case) was that completion of the 'sale transaction' depended upon fulfilment of the conditions, particularly payment of the purchase price. The Contract, when viewed as a whole - as it is expressed in the Claim and Referral, falls within this analysis. The applicants have no real prospect of success in arguing that Plunkett is distinguishable on the basis of the presently worded Claim and Referral.

78 Resolving the question of whether the applicant's case may, if amended, satisfy the approach adopted in Plunkett poses greater difficulty. On the one hand, there is a single contract of sale with one purchase price payable (after payment of the deposit) in equal instalments at settlement of the four stages. The purchase price and certificate of valuation both reference the Land, not each stage as it settled. On the other hand, at the time of the Referral, Stage 1 of the Contract had been completed, such that at that point, the applicants may have suffered a crystallised loss. Since then Stage 2 has completed and quite probably Stage 3 (due on 8 August 2019) and the opportunity may exist for the Claim and Referral to be amended so that an alternative disputed claim is raised in respect of these 'sales'. While the Contract has a termination clause in the event of insolvency, with reference being made to the repayment of a deposit, it appears uncertain how such a clause would apply where Stages 1, 2 and 3 have completed and transfers of title to the particular parcels of the Land have been made and registered. That is, as a matter of construction of the Contract, those stages are likely to have become unconditional.

79 The respondent's submission that each stage of the Contract of Sale cannot be considered a loss on sale for the purposes of s 106 appears persuasive. That section refers to compensation under s 98 after 'the sale of the land' if the owner of the land sold it at a lower price 'than the owner might reasonably have expected to get if the land or part of the land had not been reserved...'. The focus of s 98(1)(a) is 'the land being reserved for a public purpose...'. While s 106 refers to 'part of the land' being reserved, the sale is with reference to 'the land'. That is, the reservation need not apply to the whole land, but the whole land is the subject of the sale.

80 In contrast, the submission of the applicants creates a tension in s 106(1) between a stage of the Contract falling within the phrase 'the sale of the land' yet also being considered 'part of the land'. On the applicant's alternative case, a right arises upon each stage of the Contract settling, as each loss crystallises. Presumably on this view, each stage must be considered 'the sale of the land concerned under s 106' for the purposes of s 99(b). Section 106 then refers to 'the sale of the land', and the land being sold at a lower price than would have been expected if 'the land or part of the land' had not been reserved or proposed to be reserved. However, here none of the land in Stages 1, 2 or 3 is reserved land.

81 Where no part of the land comprising Stage 1, 2 or 3 under the Contract has been reserved or proposed to be reserved, it appears unlikely that the Court will conclude, as the respondents submits, that the source of the entitlement to claim compensation (s 98(1) of the PE Act[84]) is satisfied, nor will s 99(b) act as a trigger and s 106 will give rise to no sale at a lower price than the applicants 'might reasonable have expected to get if the land or a part of the land had not been reserved'.

82 However, this is complex legislation that has given rise to difficulties of interpretation. The analysis of Pt 5 of the PE Act undertaken by Batt J, at first instance, in Halwood Corporation Ltd v Roads Corporation,[85] by the Court of Appeal on appeal from Batt J,[86] by Osborn J in Halwood v Roads Corporation[87] and by Emerton J in Capela amply illustrates the interpretive difficulties arising out of Pt 5 of the PE Act.

83 The applicants argue that in calculating loss in the current circumstances, if it is appropriate to assess compensation on four different dates, it is relevant to assess the financial loss from 'severance impacts', as that type of loss is referred to under s 41(3) of the LAC Act. In accordance with s 105 of the PE Act, Parts 10 and 11, and s 37 of the LAC Act, with any necessary changes, apply to the determination of compensation under Part 5 of the PE Act.

84 The applicants thus contended that s 41 of the LAC Act is applicable, and submitted that the impact of an acquisition or, in the present context, PAO 3, upon value and, therefore, upon financial loss is rarely confined to the actual land acquired or reserved.

85 The respondent submitted that s 41 of the LAC Act does not apply to the compensation regime under the PE Act. Insofar as the applicants suggested that there is some sort of severance effect involved in the settlement of Stages 1, 2 or 3, the extent to which surrounded land might be affected in value is not the subject of the compensatory regime under Pt 5 of the PE Act.[88]

86 In Minister v Energy, Environment and Climate Change v Megson,[89] in the context of determining whether an applicant was entitled to interest under s 60 of the Supreme Court Act 1986 (Vic), Emerton JA (with whom Tate JA and Almond AJA agreed) stated that:

In assessing compensation for the compulsory acquisition of land, s 41(1) of the LAC Act requires regard to be had a number of 'factors', including the market value of the land, any special value to the claimant, any loss attributable to severance or disturbance, legal, valuation and other professional expenses and so on. Where applicable, these factors will appear in a claim for compensation as separate 'heads of claim', each of which must be considered in assessing the total amount of compensation payable by the Authority for the divestment or diminishment of an interest in land. Under Part 5 of the PE Act, an entitlement to compensation can arise in a variety of ways under s 98, and there are separate provisions giving entitlement to compensation for such things as loss on sale, any effect on residence and the expenses involved in preparing and submitting the claim. In a notice of claim filed pursuant to the requirements of s 37 of the LAC Act, claims made pursuant to the provisions of Part 5 of the PE Act will be articulated and treated in the same way as heads of claim in a dispute over compensation in a compulsory acquisition.[90]

87 This observation seems to proceed on the basis that the factors set out in s 41 of the LAC Act for the assessment of compensation are applicable to a claim under Pt 5 of the PE Act.

88 On the other hand, it may be that the measure of any compensable loss is defined by ss 98 and 106 of the PE Act. Section 98(1) uses of the words 'the owner or occupier of any land may claim compensation from the planning authority for financial loss suffered as the natural, direct and reasonable consequence of the ... the land being reserved for a public purpose under a planning scheme'. Section 106 provides that the owner 'may claim compensation under section 98 after the sale of the land if... the owner of the land sold it at a lower price than the owner might reasonably have expected to get if the land or part of the land had not been reserved or proposed to be reserved'.

89 The analysis undertaken by Osborn J in Halwood v Roads Corporation[91] leads to the conclusion that Pt 4 of the LAC Act does not apply to the measure of loss arising under ss 98 and 106 of the PE Act. It is enough for present purposes to refer to the following discrete parts of Osborn J's reasons_:_

[117] It is apparent that in each case the compensation payable under the P&E Act is for planning blight which has the effect of diminishing the value of the land pending an acquisition which may or may not occur. On the other hand, the LAC Act is concerned with compensation for the actual acquisition of an interest in land, which is independently assessed but to which an adjustment will be made in accordance with a formula if compensation has previously been paid in respect of the land pursuant to the P&E Act.

[118] I interpolate that the measure of compensation for loss on sale is not necessarily equivalent to that payable under s 98. It turns on the difference between the price actually paid by a purchaser and the price that would hypothetically have been paid if the land were not affected by a reservation. It follows the compensation payable under the P&E Act will not in fact reflect the effect on market value of the reservation, unless the purchaser adequately allows for this factor. The deduction which may follow as a result pursuant to s.41(5) of the LAC Act will also be affected pro tanto.....

[120] Next, the matters to which regard must be had pursuant to the LAC Act are considerably broader than those to which regard must be had pursuant to the P&E Act and the principal considerations are defined in terms which do not find a conceptual equivalent in the P&E Act. [His Honour then refers to the definitions of 'loss attributable to severance', 'market value' and 'special value' in s 40 of the LAC Act]

[122] It follows that the compensation payable under the LAC Act is:

(a) with respect to a different cause than that with which the P&E Act is concerned;

(c) payable by reference to a broader range of considerations; and

(d) payable by reference to considerations which the LAC Act contemplates stand independently of loss attributable to disturbance.

90 For Pts 10 and 11, and s 37 of the LAC Act to apply 'to the determination of compensation under this Part as if the claim were a claim under s 37 of the Act'[92] there must be a measure of compensation. Whether that measure is wholly within the PE Act, as the reasoning of Osborn J would suggest, or also includes the factors in Pt 4 of the LAC Act has not been fully argued.

91 I note that s 37 of the LAC Act concerns the making of a claim for compensation. Part 10 of that Act concerns the determination of disputes, in particular disputed claims arising under various provisions, including s 37. In Pt 10, s 90(2) provides:

In determining the compensation payable the Tribunal or the Court is not bound by the exercise of any discretion of the Authority or by any opinion or determination of the Authority, but must determine the compensation payable in the particular circumstances of the case having regard to the provisions of this Act.

92 To determine the compensation 'having regard to the provisions of this Act' might well be said to involve applying to the determination the 'measure of compensation' in Pt 4. The right to compensation in the current circumstances is an important right limiting or impairing individual rights, particularly property rights. Statutory provisions conferring such a right should be construed with all the generality that their words permit.[93]

93 As I have said, there was insufficient argument on the question of the application of Pt 4 of the LAC Act to enable me to express a concluded view as to its applicability to a claim arising under ss 98(1) and 106 of the PE Act. Indeed, on an application for summary judgment it would be rare that such an important question were appropriate for determination.

94 However, if a head of claim articulated under Pt 5 of the PE Act may concern 'any loss attributable to severance', as it arises under s 41 of the LAC Act, such loss in this case in relation to Stages 1, 2 and 3 under the Contract must rely on the definition of 'loss attributable to severance' in s 40 of the LAC Act. In relation to the acquisition of the claimant's interest in land, the phrase is defined to mean the amount of any reduction in the market value of any interest of the claimant in 'other land used in conjunction with the acquired land'.

95 It is not immediately apparent how such a provision supports the notion that the land the subject of Stage 1 alone, for example, can form the basis of a claim under s 98(1) and s 106. That is because in adjusting the language of the LAC Act in accordance with s 105 of the PE Act (which if s 41 of the LAC Act is applicable, requires the language of the definitions in s 40 to be changed as necessary), the reference in the definition to the acquisition of the claimant's interest in land must be replaced with a reference to the claimant's interest in the land the subject of the reservation.

96 Ultimately, the Court must be cognisant that the power in s 63 of the CPA should be applied cautiously. While prima facie it appears that completion of Stages 1 and 2 of the Contract would not fall within the language in s 99(b) 'sale of the land concerned under s 106', when that phrase is tied to 'the land or part of the land' being 'reserved or proposed to be reserved', this conclusion is not so clear as to justify summary dismissal.

97 That is, it cannot be said that the applicants' claim that each stage of the Contract falls within the approach of Plunkett and is permissible under Pt 5 of the PE Act is fanciful. It may be that the applicants are entitled under ss 98(1), 99(b) and 106 of the PE Act to claim compensation from the respondent for financial loss suffered as the natural, direct and reasonable consequence of the Land being reserved for a public purpose under a planning scheme, and that the triggers for the loss (the sale of the land) are the successive staged settlements under the Contract under which the whole of the Land is sold. If that claim is pursued, it is not possible to conclude that the applicants have no real prospect of success in sustaining the claim.

98 My conclusion is, therefore, that the respondent has not established the applicants have no real prospect of success if the Referral is amended.

99 There is another issue that has not been raised in argument. It is whether the limitation period of 2 years under s 37(2) of the LAC Act is applicable, 'with any necessary changes'[94] so that there is a limitation period applicable to the making of a claim running, perhaps, from the time the right to compensation arises under s 99, which is 'on the sale of the land'. If that were right,[95] then a fresh claim based upon settlement of Stage 1 on 5 November 2017 being 'a sale of land' - in the sense of a part of land - reserved for public purposes will be more than two years after the right to compensation arose. No doubt if all that were the case, the Court would look favourably on an application under s 106 of the LAC Act to extend the time. But the very presence of the risk of a limitation period being applicable to defeat a fresh claim and notice of referral is a reason not to dismiss this proceeding summarily if it is susceptible to amendment to make a claim, in the alternative, based on settlement of Stage 1 being a relevant sale of the land.

100 The applicants relied upon three chief submissions in this regard: first, that on the basis of Capela they may lose the opportunity to claim compensation should one or both of them die prior to August 2020; second, that they will lose the ability to claim interest from March 2018 should their case eventually succeed; and finally, that the case is of such a nature, requiring the filing of further expert evidence, that only a full hearing on the merits is appropriate. While the respondent initially sought to argue that prejudice arose concerning its exposure to interest payable, it was conceded that on its case, interest would only be payable from when the right to claim arose, in August 2020 if the respondent is correct.[96] This seems to me to be the way in which interest should be determined under s 60 of the Supreme Court Act 1986, because it would constitute 'good cause to the contrary' that a proceeding is commenced before the right to compensation arose and was amended to introduce the claim subsequently arising.

101 In Capela, Emerton J noted the 'significant unfairness' worked by the requirement that the person making a s 98(1) claim be the owner of the land affected by the reservation at the time of its imposition, in circumstances where the owner died before claiming compensation. Her Honour also noted, however, the possibility that a claim may not be precluded under s 98(2). In the current circumstances, there is no evidence that the applicants are not in good health, and it is also not clear how Capela would apply in the context of a joint tenancy, should one of the applicants die rather than both. In the circumstances, it appears inappropriate to conclude that the interests of justice support continuation of the proceeding in order to avoid the speculative application of the principles established in Capela.

102 Concerning the applicants' claim to interest, as I have said, when determining matters under Pt 5 of the PE Act the Court must award interest for the period after the commencement of the proceeding, unless good cause is shown to the contrary.[97] The applicants contend that if this proceeding is dismissed, although it is open to them to file a new notice of referral based on a new disputed claim, they potentially lose the opportunity to claim a significant sum of interest over the period commencing from 8 March 2018.

103 If I am correct in my view that it would constitute 'good cause to the contrary' that a proceeding is commenced before the right to compensation arose, then there is no real prospect that the applicants would be awarded interest for any period before then.

104 However, of additional relevance in this regard is the indication by the applicants that if the law stays the same, they both survive to August 2020 and property prices do not fall significantly, they will not seek to argue that their compensable loss should be calculated as at an earlier date. In such circumstances, it is difficult to conclude that there is a real prospect of the applicants gaining an award of interest from the commencement of the proceeding, rather than from the time their right to compensation arose. This means, in my view, that it is unlikely that the 'interest issue' justifies it 'not being in the interest of justice' to dismiss the proceeding within the meaning of s 64 of the CPA.

105 Finally, in my view, the applicants' claim that the need for further expert evidence establishes that only a full hearing on the merits is appropriate is not convincing. While such expert evidence may assist in establishing the quantum of the claim, the chief issue in the proceeding is whether the right to claim compensation for loss has arisen.

106 Overall, I am not satisfied that this is a case that should proceed to trial under s 64 of the CPA if, contrary to my conclusion, the applicants have no real prospects of success.

Should an adjournment be granted or the trial put off?

107 The applicants seek an adjournment of the proceeding to a date, or that the trial be fixed, after 8 August 2020. Such delay is said to be preferable as it provides time for cases challenging the correctness of Plunkett and Capela to be brought, and it will aid the efficient and cost-effective resolution of the matter, consistent with the overarching purposes set out in the CPA. Specifically, it will narrow the issues of law, conserve the resources of the Court and the parties, there will be no prejudice to the respondent, and it would avoid the material prejudice to the applicants. It is also asserted that it would facilitate the respondent's compliance with its obligations as a model litigant, and if the matter is adjourned, unless there is a fall of significance in the property market, it is highly unlikely that the applicants would contest that Plunkett is legally correct and that the assessment of loss is to be carried out on the basis of an 'after' value fixed by the contract of sale, and a 'before value' assessed as at August 2020.

108 According to the respondent, the power of the Court to adjourn a proceeding in r 46.06(1) of the Rules should not -and potentially cannot - be used in circumstances where a Referral has not been properly made. Moreover, it would not give effect to the overarching purpose of the CPA to 'allow a defective application to remain on foot until some later point in time'.[98]

109 The respondent also relies on what it submits is a general principle, stated by McHugh JA (as his Honour then was) in Sydney City Council v Ke-Su Investments Pty Ltd as follows:

As a general rule, it is not a proper exercise of the discretion to grant an adjournment on the ground that it is believed that the law may or will be changed in the near or remote future.[99]

110 While an exception exists where an adjournment is sought to 'enable a proposition in a decided case to be tested in an appeal brought by the parties in the case',[100] that is not the position here. The respondent submitted that in substance the applicants' seek a stay of the proceeding and not an adjournment.[101] Further, even if an adjournment to after August 2020, or a trial after that date, is sought, the extent to which the matter can proceed then depends upon compliance with the contract and various permutations that might occur.[102]

111 Similarly, regarding the applicants' reliance on Capela, the respondent submits that 'it would not be a proper exercise of the Court's discretion to grant an adjournment in order to defeat the otherwise normal operation of the legislation'.[103]

112 Rule 49.03 of the Rules provides that the Court may adjourn a trial on such terms as it thinks fit. Regarding an analogous power, the Court of Appeal of New South Wales has emphasised that an application for adjournment is 'to be resolved according to the overall requirements of justice in the particular circumstances'.[104] As the respondent submits, adjournment is not generally appropriate on the ground that it is believed that a change in law may occur at some time in future, although an exception exists in the context of the certainty of an appeal.[105] When the Court exercises its discretion, it is axiomatic that it must do so consistently with the overarching purpose of the CPA.[106]

113 In my view, providing time for Plunkett and Capella to be challenged is an inappropriate ground upon which to grant the delay requested. There is no evidence that an appeal has been filed, let alone set down for hearing, in either matter -it is no more than speculation that the principles which they have expounded will be shown to be incorrect before August 2020.

114 The applicants then assert that adjourning to, or fixing the trial of the matter on, a date after August 2020 will narrow the issues in dispute. Specifically, they submit that a number of issues currently in contention will fall away, and much less will turn on the question of when the date of entitlement arises as facts supporting all possible interpretations will have occurred. While it may eventuate that this is the case, such a narrowing of issues is balanced by the delay that the adjournment causes, which is inconsistent with the efficient and timely resolution of the issues in dispute.

115 Should the Court reject the applicants' request for an adjournment however, a real difficulty arises. If the applicants' primary case succeeds, Plunkett is found to be 'plainly wrong' and the 'loss on sale' occurred when the applicants entered into the contract, the facts would appear to exist for the Court to finally determine the matter. In contrast, the applicants' alternative case relies upon the completion of each stage under the Contract of Sale. Evidently, the 'market value' of the Stage 3 and Stage 4 sales is unable to be established. Similarly, should the respondent succeed in arguing that the 'loss on sale' occurs in August 2020, it would be necessary to determine the market value of the property at that date.

116 Weighing up these factors, particularly in light of my conclusion above as to the applicants' argument that Plunkett is plainly wrong,[107] and my conclusion that if the Claim and Referral are amended so as to mount a case for compensation for loss being triggered be the successive settlements of the 4 stages under the Contract, it is preferable for the matter to be managed with a view to a trial of the amended Claim and Referral if that course is sought to be pursued by the applicants. If the applicants do not seek to amend the proceeding so as to claim on the basis of the staged settlements constituting sales of the Land, the proceeding should be dismissed.

117 If the applicants desire to maintain by amendment of the Claim and Referral that they are entitled under ss 98(1), 99(b) and 106 of the PE Act to claim compensation from the respondent for financial loss suffered as the natural, direct and reasonable consequence of the Land being reserved for a public purpose under a planning scheme, and that the triggers for the loss (the sale of the land) are the successive staged settlements under the Contract under which the whole of the Land is sold, the proceeding should be managed with a view to trial as soon as may be. If that claim is pursued, it is not possible to conclude that the applicants have no real prospect of success in sustaining the claim. If the proposed amended claim and referral are not pursued, the proceeding should be dismissed.

118 I will hear the parties as to the appropriate orders.

[1] The land in Certificate of Title Volume 9829 Folio 358.

[2] That being the proper name of the respondent. No point was taken by the respondent that it was incorrectly named.

[3] Affidavit of Charlotte Alice Elizabeth Turner affirmed 17 July 2019 (Turner Affidavit) [8]; Amendment VC68 to the Victoria Planning Provisions, published in the Victorian Government Gazette on 6 August 2010.

[4] Affidavit of Julie Maree Colsell sworn 15 April 2019, JMC 5 (Colsell Affidavit) document marked 'c' in the Notice of Referral.

[5] Colsell Affidavit (n 4) [5], JMC 2.

[6] The Notice of Claim also refers to PAO1, however, that Public Acquisition Overlay is not the subject of any claim.

[7] Made applicable by s 105 of the PE Act.

[8] The form of Notice of referral is prescribed by Land Acquisition and Compensation Regulations 2010 S.R. No. 44/2010, Reg 27, Form 16.

[9] Pursuant to s 98(1)(a) of the PE Act.

[10] The respondent's summons filed on 15 April 2019 also sought in the alternative that the applicants' Notice of Referral filed on 8 March 2018 to be struck out pursuant to r 23.01(1) or r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules). This alternative relief was not pressed at the hearing.

[11] [2019] VSC 39 (Plunkett).

[16] There was also provision for an extension of that time.

[17] Colsell Affidavit (n 4) [5], JMC 2.

[18] Turner Affidavit (n 3) [12], CT1 and CT2.

[19] Turner Affidavit (n 3) [12], CT1, 39. The expression 'Plan of Subdivision' is defined to mean each of the Stage 1, 2, 3 and 4 plan of subdivision. It may be that when the amendments were made by the Deed of Variation and the Variation letter, consequential amendments were intended to be made, but were not made, to SC 19 to bring it into line with the changed definition of 'Plan of Subdivision' and to allow for the fact that termination could not reverse transfers of part of the Land that took place under an earlier staged settlement.

[23] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27, 39 [29] per Warren CJ and Nettle JA (Neave JA agreeing).

[24] Ibid 38 [25] per Warren CJ and Nettle JA (Neave JA agreeing).

[25] Ibid 40 [35] per Warren CJ and Nettle JA (Neave JA agreeing).

[27] [2016] VSCA 4, [45] (citation omitted).

[28] [2011] VSC 222; (2011) 35 VR 1.

[29] Ottedin Investments v Portbury Developments [2011] VSC 222; (2011) 35 VR 1, 7 [15] (Ottedin) quoting Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [25] (**Spencer v Commonwealth).**The summary dismissal provision considered was s 31A of the Federal Court of Australia Act 1976, which Dixon J in Ottendin described as in similar, although not identical, terms to s 63 of the CPA.

[30] [2012] VSC 554, [15].

[31] Capela v Minister for Energy, Environment and Climate Change [2018] VSC 360 (Capela), [19].

[33] Halwood Corporation Ltd (Scheme Administrator Appointed) v Roads Corporation (1995) 89 LGERA 280, 286; Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439, 447-8.

[34] A claim for declaration that the executors of the estate of the owner were entitled to make a claim for compensation, notwithstanding that they were not owners at the time of the reservation.

[35] [2001] HCA 37; (2001) 205 CLR 603, 623 [38].

[36] Plunkett v Roads Corporation [2019] VSC 39 [22].

[39] Bond [37]; Plunkett (n 37) [30].

[53] Respondent's Written Submissions, dated 24 July 2019, [4] (Respondent's Written Submissions).

[55] Transcript of Proceedings_, Rizzo v VicRoads_ (Supreme Court of Victoria, S CI 2018 00840, Derham AsJ, 30 July 2019) 22 (Transcript).

[59] Respondent's Written Submissions (n 54) [5].

[67] [2017] HCA 7; (2017) 259 CLR 106.

[73] In fact the Notice of Referral preceded settlement of Stage 2.

[75] Order 36 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) is made applicable by r 1.07 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) and that enables amendment of the process by which this proceeding was commenced. In addition it may enable an amendment which introduces a cause of action arising after commencement of the proceeding. I say that the Rules may enable that amendment because the power in r 36.01(3) is expressed to apply to amendment of an 'indorsement of claim' or 'pleading'. In order to amend the Referral, the terms of s 80 of the LAC Act require a disputed claim, thus involving the making of an amended or further claim under s 37 of that Act.

[79] Spencer v The Commonwealth (n 29) 132, [25]-[26].

1. [81] Spencer v The Commonwealth (n 29) 132, [25]-[26]; applied in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27, 39 [18] per Warren CJ and Nettle JA (Neave JA agreeing), Ottedin Investments v Portbury Developments [2011] VSC 222; (2011) 35 VR 1, 7 [15], JBS Southern Aust Pty Ltd v Westcity Group Holdings Pty Ltd [2011] VSC 476 [46], and many other cases.

[82] Macquarie Dictionary, 6th Ed, meaning 7. The Oxford English Dictionary (1933), Vol IX gives the definition: 'The action or an act of selling or making over for a price..'.

[84] Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439, 450 (Tadgell JA, Brooking and Ormiston JJA agreeing).

[85] (1995) 89 LGERA 280.

[86] Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439.

[87] [2008] VSC 28.

[89] [2019] VSCA 19 (Megson).

[91] [2008] VSC 28, [107]-[123].

[93] Ketterington Pty Ltd v Noosa Shire Council [2004] HCA 33; (2006) 78 ALJR 1022, 1029-30 [32], endorsing the statement by Gaudron J in Marshall v Director General Department of Transport [2001] HCA 37; (2001) 205 CLR 603, 623 [38]; See also Halwood v Roads Corporation [2008] VSC 28, [62].

[94] PE Act s 105 provides that Parts 10 and 11 and s 37 of the LAC Act, with any necessary changes, apply to the determination of compensation under Pt 5 of the PE Act 'as if the claim were a claim under s 37 of that Act.'

[95] Because it was not argued I have not sought to unearth much authority on the point, apart from Analed Pty Ltd v Roads Corporation [1998] VSC 174, where Balmford J proceeded on the assumption that the limitation period applied and Kasempa PL v Surf Coast SC (Land Valuation) [2007] VCAT 163.

[98] Respondent's Written Submissions (n 54) [77].

[99] (1985) 1 NSWLR 246, 258.

[100] Respondent's Written Submissions (n 54) [56]. See eg. Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527.

[103] Respondent's written submissions (n 54) [70].

[104] Hamod v State of New South Wales [2011] NSWCA 375 [131] citing Conroy v Conroy [1917] NSWStRp 44; (1917) 17 SR (NSW) 680, 682; Squire v Rogers (1979) FLR 106, 113; Vasser v Taylor Black [2010] FamCAFC 36, [31].

[105] Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246, 258; City of Sydney Council v Satara [2007] NSWCA 148 [17] - [32].

[106] CPA ss 8 and 9; Eaton v ISS Catering Services Pty Ltd [2013] VSCA 361; (2013) 42 VR 635, 646-8; AON Risk Services Australia Pty Ltd v ANU (2009) 239 CLR 175, 213-4.