foodhouse & Wallsend ai v iron

foodhouse & Wallsend ai v iron - [1907] HCA 82 - HCA 1907 case summary — Zoe

[16]

alities of the land as on Ist January 1905, including the fact that, by reason of the position of the land, the Defence Department might possibly become a competitor for it, and thus increase its value in competition (Browne and Allan on Compensation, 2nd ed., p. 718; Ripley v. Great Northern Railway Co. (1); In re Gough and Aspatria, Silloth and District Joint Water Board (2) ). Now, I have heard the evidence and the arguments; and, with the assistance of counsel for the plaintiff and for the defendant, I have inspected the land. As a result, I entertain a very strong view that the claim for compensation is most excessive. Even the valuations made by the defendant's valuers are liberal. The truth is that, in such cases as this generally, no land agent or valuer has any tangible interest in straining the value unduly downwards, whereas most have a tangible interest in the opposite direction. I do not at all imply, however, that the gentlemen who have given evidence have not given their opinion honestly, on data which they frankly state. Yet in this case I am face to face with valuations varying so widely as £8,400 and £2,066. The plaintiff's witnesses assume that the Clifton Street frontage is required for factory or storage purposes, and that the Railway Commissioner will be able and willing to run a siding across Clifton Street into the buildings. As one of the witnesses said to me, his valuation of this frontage - £5,296 or £8 per foot - is the price which a manufacturer would give if he needed this part of the land; and another admitted that there is no advantage in having the railway so near unless one can get the private siding. While desiring to give ample weight to the possibilities of this land, I refuse to treat these contingencies as if they were certainties. I believe the evidence of the defendant's witnesses that there is not, and was not on Ist January 1905, any demand for land for factory or storage purposes, and that, if such a demand should arise, there is other land available. I accept the evidence also of those who state that the land is not suitable for villa residences, but only for workingmen's dwellings. I do not think anything is to be gained by an exhaustive statement of the evi- dence submitted, or of the relative qualifications of the experts. Some of the transactions deposed to with regard to lands in the (1) LR. 10 Ch., 435. (2) (1903) 1 K.B., 574.

[17]

vicinity I cannot regard as being of much use in enabling me to ascertain the fair value of this land. Indeed, there are so many factors which may operate as an inducement to any particular dealing in land, that it is unsafe for the Court, which cannot have full knowledge of all the circumstances, to rest its decision on any one transaction. Some of the land in John Street opposite this land was sold with difficulty at various times, chiefly from 1896 to 1902, when land values were higher than on 1st January 1905, at prices averaging about £45 per lot, and on terms, without interest. Some of the lots have not yet been sold, and are for sale at the best terms obtainable. Each lot has 33 feet frontage with a right of way at the rear. This would mean about £1 6s, 8d. per foot frontage. These frontages are admitted by the plaintiff's witnesses to be of the same value as the plaintiff's land facing John Street, except that the plaintiffs frontages would have greater depth; and yet the plaintiff's witnesses claim £3 per foot for the plaintiff's frontages to John Street. There are other standards of comparison of more or less weight. In 1904 the half interest of the late Mr. George Leake in similar land, of nearly the same area (over 6 acres), but not quite so near the wharves, was sold to the owner of the other half interest for £937 10s. This would mean about £1,875 for over six acres, even if we assume that the owner of the other half interest would not be willing to give more than an ordinary purchaser. Moreover, in December 1901, be- fore the great fall in values in Fremantle, the Shell Oil Company bought three sections (about 5 acres) at the rate of £480 per acre, and these sections Mr, Learmonth regards as being very much more valuable than the plaintiff's land. Personally I should have felt much doubt, if I were to rely on my own judgment, as to the possibility of getting even the prices which the defendant's witnesses mention. But I have to remember that the land avail- able for sites in and around Perth and Fremantle is all, or nearly all, of a sandy character,and I am not justified in refusing to give credence to expert witnesses who say that they could tind pur- chasers as stated. If it is not invidious to make a selection among competent and honourable witnesses, I should prefer to rely on the opinion of Mr. Learmonth, and he is the witness who fixes the value at the lowest - £2,066 or £330 per acre.

[18]

There is no claim made by the plaintiff for damage under secs. 13, 14, 19 in addition to the value of the land taken. But the plaintiff's counsel urge that it is incumbent on the Court to allow 10 per cent. more than the true value in consideration of the land being compulsorily taken; and I have been referred to certain Victorian cases: Leslie v. Board of Land and Works (1); and In re Wildman ; Ex parte Lilydale and Warburton Rail- way Construction Trust (2) in support of this contention. I am unable to see how a consideration of this kind enters into the question of value, at all events, in the case of land held merely as a speculation, land which the owner does not want for its own sake, land as to which he is not an additional competitor ; and it is only on the question of value, not of damage, that the point is pressed. Besides, even if it is a grievance to suffer compulsion, it must be remembered that the owner is saved the expense of surveying and levelling, and preparing the land for sale, of advertising, of agent's commission, &. I do not quite appreciate some of the expressions used by the learned Judges in the cases cited. But, without taking it upon me either to condemn or to endorse these expressions, it is enough for me to say that there is phraseology used in the Victorian Acts referred to in Leslie's Case (1) which ave not found in the Federal Act, and that the Federal Act seems to be sufficiently clear and definite as to my present duty. Having regard to all the potentialities of the site, and to all the other circumstances, I think that I am giving to the plaintiff all that he can justly claim if I determine the amount of compensation at £2,250. This amount is less than that offered to him - £2,640 19s. 10d. on 18th December, 1905; and it is still less than the amount paid into Court (including interest) £3,086 1s, 2d. I determine the amount of compensation at £2,250 and direct judgment to be entered accordingly. I order that the money in Court be paid out to the defendant after the payment to the plaintiff of the £2,250 with interest thereon as prescribed by sec. 20. No costs. Ihave had great doubt whether I should not make the plaintiff pay all the costs; but, inasmuch as the plaintiff was probably misled by the amount of possible purchase

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amount and tendering issue on the bare averment that the sum so paid in was enough. The plaintiff was entitled to join issue on the plea as filed, and to prove, if he could, that £3,000 was not enough, and thus the contest invoked by the defendant was solely on the sufficiency of that sum. The plea deliberately abandoned the valuation as the subject of contest, and by offering £3,000 without denying liability, disabled the defendant, in my opinion, from contending that a less sum should be assessed as compensation. Any contention that a less sum was enough became irrelevant to the issue raised by the defendant, by whose own pleading the sole question was, £3,000, or how much more? It is true that the Statute does not expressly authorize the plea of payment into Court, but it does not exclude it even by implica- tion (although in some circumstances it may be rather an imprudent plea to an action under the Statute). The authority given to the claimant by see. 15 to proceed for compensation refers only to an action, and if an action is brought, it is reasonable to conclude that the practice and procedure in ordinary actions are to be applied as far as may be. Now as to their application. In the first place, keeping in mind that the payment into Court was unaccompanied with any denial of liability, it must be taken to admit the plantiff's cause of action to the extent of £3,000, and the interest, £86 1s. 2d., follows as of course under sec. 20 of the Aet: Hennell v. Davies (1). The Chief Justice has made a close analysis of the Rules under Order XVII. which are relevant to this case, and I cannot add to that; further, I think it impossible to resist the construction of Order XXVIL, Rule 3, which lays it open to a plaintiff to treat such an admission of fact as this plea as the foundation for an application, at any stage of the cause, to the Court or a Justice, for the payment out to him of the amends tendered with the plea. From that construction it follows, not only that the refusal of such an order is scarcely to be thought of, but also that the right to it is not dependent on the result of the action. The comprehensive Rule in question, so construed by its framers, is probably the reason why it has not been thought necessary to provide specially for payment out of Court, as in England is done by Order XXIL, r. 5. I am, there- (1) (1893) 1 Q.B., 367.

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The remaining question is whether the plaintiff has shown a right to compensation exceeding the sum paid in. For it is on him to show it, and he undertook to do so. As in most cases of the kind, the witnesses, called as experts in land values, presented a view for each side difficult to reconcile with that for the other. The differences were upon a matter in which the worth of opinion, and not the degree of truthfulness, was in question. Still, the matter was one of credibility in that sense, and the conflict was strong. In such a case a Judge who sees and hears the witnesses has a distinct advantage over others who are asked to review his decision. Therefore I am very loath to attempt such a process in this case, and can only do so on the ground of necessity. But, after giving my best attention to the judgment of Higgins J., T am unable to find that he has applied certain principles which, as it appears to me, should be applied to a question of this kind. I am unable to say that the bare market value of the land for workingmen's residences on a particular day would be a value constituting a real compensation>for this taking. The Court must take into consideration all the circumstances, and, to quote the admirable judgment of the Supreme Court of New Zealand in Russell v. The Minister of Lands (1), must "see what sum of money will place the dispossessed man in a position as nearly similar as possible to that he was in before." His loss is to be tested by the value of the thing to him: Stebbing v. Metropolitan Board of Works (2), and the loss he has sustained is not neces- sarily to be gauged by what the land would realize if peremp- torily brought into the market on a day named. True, it is "value" which is to be assessed, but the value to the loser of land compulsorily taken is not necessarily the mere saleable value. See Russell v. The Minister of Lands (No. 2), (3). Imake these observations without losing sight of the fact that, in arriving at the market or saleable value of £2,250 for working- men's cottage sites, which is the only value that I think he found, Higgins J. was perfectly entitled to follow, as he did, that one of

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Judgment (112 paragraphs)

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