G Capital Corporation Pty Limited v Transport for NSW; Gertos Holdings Pty Ltd v Transport for NSW; Marsden Developments Pty Ltd v Transport for NSW

Introduction

1. On 9 February 2018, Transport for NSW (TfNSW), formerly known as Roads and Maritime Services, compulsorily acquired three properties in Camperdown for the purposes of an element of the WestConnex project. The addresses of those properties; their registered proprietorship as at the date of acquisition; and the matter number concerning that property are set out below: 1. 160-162 Parramatta Road, Annandale was owned by G Capital Corporation Pty Ltd (Matter No 207357 of 2018); and 2. 164 Parramatta Road, Annandale was owned by Gertos Holdings Pty Ltd (Matter No 207345 of 2018); and 3. 166-172 Parramatta Road, Annandale was owned by Marsden Developments Pty Ltd (Matter No 207366 of 2018).
2. Each of the owning entities had, some 19 months earlier (on 28 June 2016), entered into a contract to sell the property owned by it. These contracts were due to be completed by no later than 28 June 2018. None of them had been completed as at the date of the compulsory acquisitions.
3. The three owning entities were related interests of Mr Gertos (the Gertos entities). The three separate entities which were to acquire Mr Gertos' properties were also related, being associated interests of Mr Pamboris (the Pamboris interests). As a consequence of the spatial relationship between the Gertos entities' sites (as can be seen from the addresses in the above list), in addition to the individual contracts for sale, a related deed was executed by all three vendor entities and all three purchaser entities. This deed provided that all three transactions were required to be completed in one line.
4. With respect to the third of the transactions listed above, it is convenient to refer to the relevant Gertos entity as Marsden Developments and that of the relevant Pamboris interest as Portman Securities.
5. The Land Acquisition (Just Terms Compensation) Act 1992 (the Land Acquisition Act) provides the statutory framework pursuant to which owners of interests in land are to be compensated when that land is compulsorily acquired for a public purpose. The operation of provisions of the Land Acquisition Act, in the context of compulsory acquisition of these three properties and potential entitlements to consequent compensation of the Gertos entities and of the Pamboris interests, are the basis for these proceedings.
6. It is also appropriate to note that, in the matters before me dealt with by this decision, a cross‑claim by TfNSW against one of the Pamboris interests (Portman Securities) also arises for consideration.

Earlier related proceedings

1. There have been five earlier proceedings arising out of the compulsory acquisition of the three properties owned by the Gertos entities. All three of these current proceedings are ones arising from compensation applications by each of the Gertos entities pursuant to the Land Acquisition Act.
2. It is sufficient, at this point, to note, briefly, the nature of the earlier proceedings.
3. The first of the earlier proceedings was one setting down for determination separate questions said, at that time, potentially to be dispositive of the three Gertos entities' proceedings. That decision was Gertos Holdings Pty Limited v Roads and Maritime Services; G Capital Corporation Pty Limited v Roads and Maritime Services; Marsden Developments v Roads and Maritime Services [2018] NSWLEC 166 (Gertos Holdings No 1).
4. The second of the earlier proceedings - Gertos Holdings Pty Limited v Roads and Maritime Services; G Capital Corporation Pty Limited v Roads and Maritime Services; Marsden Developments v Roads and Maritime Services [2018] NSWLEC 172 (Gertos Holdings No 2) - concerned applications to set aside various Notices to Produce and Subpoenas. This decision plays no part in the present proceedings.
5. Following the decision in Gertos Holdings No 1, Pain J heard and determined the questions set down for separate determination. Her Honour's decision was published as G Capital Corporation Pty Ltd; Gertos Holdings Pty Ltd; Marsden Developments Ltd v Roads and Maritime Services (2019) 243 LGERA 1; [2019] NSWLEC 12. It is not necessary to traverse here the details of her Honour's decision.
6. However, it will later be necessary to set out, in full, the terms of a Statement of Agreed Facts (being a document agreed between the Gertos entities and TfNSW for the purposes of the matters with which I am here engaged). To the extent relevant for present purposes, the aspects of her Honour's decision engaged for consideration in this decision are set out in that Statement of Agreed Facts.
7. The Gertos entities, being dissatisfied with her Honour's decision, took proceedings in the Court of Appeal. The Gertos entities were unsuccessful in that appeal (G Capital Corporation Pty Ltd v Roads and Maritime Services [2019] NSWCA 234). The Gertos entities unsuccessfully sought special leave to appeal to the High Court (G Capital Corporation Pty Ltd v Roads and Maritime Services [2020] HCASL 14).

Introduction

1. The relevant Gertos entity in each of the present proceedings filed Points of Claim, whilst TfNSW filed Points of Defence in response to each claim. It is unnecessary, for present purposes, to set out the detail of those pleadings.
2. However, on 19 February 2021, TfNSW filed a Notice of Motion seeking leave to bring a cross‑claim against the nominated Pamboris acquiring entity (Portman Securities) in Matter No 207366 of 2018. Leave was granted to do so on 23 February 2021 (leave not being opposed by either the relevant Gertos entity or the relevant Pamboris interest).

TfNSW's cross‑claim

1. TfNSW's cross‑claim concerned the proposed (but uncompleted) sale of 166-172 Parramatta Road by Marsden Developments to Portman Securities. It is appropriate, at this point, to set out that cross‑claim in full. It was in the following terms: 1 At all material times prior to the acquisition on 9 February 2018 by the First Respondent, the Applicant (Marsden) was the registered proprietor of the land comprised in Lot 1 in Deposited Plan 776389, being the whole of the land known as 166-172 Parramatta Road, Annandale (No.166-172). 2 On 28 June 2016, Marsden and the Second Respondent (Portman) entered into a contract for sale of land for No.166-172 with a purchase price of $6,000,000, on certain terms and conditions. 3 On 9 February 2018, Transport acquired No.166-172 for the purpose of the Roads Act 1993. 4 On 22 June 2018, the Valuer General determined compensation payable to Portman as a consequence of the acquisition of No.166-172 in the amount of $7,926,000, which was comprised of: a. Market value - section 55(a) - $7,915,000 b. Disturbance - section 55(d) - $11,000 Particulars i. Notice of determination dated 22 June 2018. ii. Report titled "Determination of Compensation" prepared with respect to "Portman Securities Pty Ltd (equitable interest holder)" by Pamboris Adlington of Walsh & Monaghan. 4 On 22 June 2018, in accordance with its statutory obligations pursuant to section 42 of the Land Acquisition (Just Terms Compensation) Act 1991, Transport issued a compensation notice to Portman and offered to pay compensation in the amount of $7,926,000 in accordance with the Valuer General's determination. Particulars i. Letter from K Durie to James Jordan dated 22 June 2018. 5 On or around 6 August 2018, Portman accepted Transport's offer of compensation and executed a deed of release and indemnity in favour of Transport. Particulars i. Letter from James Jordan to Charisse Miranda dated 7 August 2018. ii. Deed of release and indemnity signed by Mario Pamboris as sole director/secretary of Portman on 6 August 2018. iii. Direction as to payment signed by Mario Pamboris as sole director/secretary of Portman on 27 July 2018. 6 On or around 13 August 2018, Transport paid to Portman: a. compensation in the amount of $7,926,000; and b. statutory interest in the amount of $107,663.31. Particulars i. Letter from K Durie to James Jordan dated 14 August 2018. 7 Transport is on notice in these proceedings that Marsden contends that: a. this Court should proceed to determine the nature of the estate or interest of Portman and the amount of compensation (if any) to which Portman is entitled; and b. Marsden is entitled to the whole of the amount of the market value of No. 166-172 on the date of acquisition, or in the alternative that Marsden is entitled to the whole of the amount of the market value less the amount of $50,000 paid to Marsden by Portman as a deposit under the contract for sale referred to in paragraph 2 above. 8 If, on the hearing of Marsden's notice of motion filed 14 May 2020 or otherwise in the proceedings, the Court determines that Portman's entitlement to compensation for market value is less than $7,915,000, Transport seeks a declaration as to the amount of compensation to which Portman is entitled and an order pursuant to section 48(5) of the Land Acquisition (Just Terms Compensation) Act 1991 that Portman must repay to Transport an amount being: a. the difference between the amount of Portman's entitlement (if any) as so determined and the sum of $7,915,000; and b. the proportion of statutory interest previously paid that is attributable to that difference, within 28 days of the date of the order.

Introduction

1. The existence of the uncompleted contracts between the Gertos entities and the Pamboris interests as at the date of the three compulsory acquisitions by TfNSW renders consideration of compensation matters pursuant to the Land Acquisition Act more complex than would ordinarily be the case when land is compulsorily acquired for a public purpose. Resulting from this, it will be necessary not only to consider relevant provisions of the Land Acquisition Act, but also four provisions of the Land and Environment Court Act 1979 (the Court Act). The relevant statutory provisions are set out below.

The Land Acquisition Act

1. The four relevant provisions of the Land Acquisition Act engaged by these proceedings are: 48 Advance payments of compensation etc (1) ... (2) … (3) … (4) … (5) Any advance or other payment of compensation to a person not entitled to the compensation must be repaid to the authority of the State that made the payment. (6) Any amount due to an authority of the State under this section may be recovered as a debt in any court of competent jurisdiction. 55 Relevant matters to be considered in determining amount of compensation In determining the amount of compensation to which a person is entitled, regard must be had to the following matters only (as assessed in accordance with this Division) - (a) the market value of the land on the date of its acquisition, (b) …, (c) …, (d) any loss attributable to disturbance, (e) …, (f) … 59 Loss attributable to disturbance (1) In this Act - loss attributable to disturbance of land means any of the following - (a) legal costs reasonably incurred by the persons entitled to compensation in connection with the compulsory acquisition of the land, (b) …, (c) financial costs reasonably incurred in connection with the relocation of those persons (including legal costs but not including stamp duty or mortgage costs), (d) stamp duty costs reasonably incurred (or that might reasonably be incurred) by those persons in connection with the purchase of land for relocation (but not exceeding the amount that would be incurred for the purchase of land of equivalent value to the land compulsorily acquired), (e) …, (f) any other financial costs reasonably incurred (or that might reasonably be incurred), relating to the actual use of the land, as a direct and natural consequence of the acquisition. 66 Objection against amount of compensation offered (1) A person who has claimed compensation under this Part may, within 90 days after receiving a compensation notice, lodge with the Land and Environment Court an objection to the amount of compensation offered by the authority of the State. (2) If any such objection is duly lodged, the Land and Environment Court is to hear and dispose of the person's claim for compensation. (3) … (4) …

The Court Act

1. Four provisions of the Court Act require consideration. The first is that which establishes the jurisdictional foundation enabling me to address the totality of the issues engaged for determination in these proceeding. That provision, s 16(1A), is in the following terms: 16 Jurisdiction of the Court generally (1) ... (1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act. (2) ...
2. The above provision, having established the jurisdictional basis for addressing all matters in these proceedings, renders it then appropriate to set out the terms of s 22 of the Court Act, it being the provision that establishes the broad scope of the powers able to be utilised in the resolution of these proceedings. The terms of this section are: 22 Determination of matter completely and finally The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.
3. Finally, the functions of the Court that I am to carry out for the purposes of these proceedings are set out by ss 24 and 25 of the Court Act working together. These provisions make it clear that I am to determine what is the interest of each relevant Gertos entity and each relevant Pamboris interest with respect to each of the three properties earlier noted as comprising the Gertos entities and such interest as might exist for each of the Pamboris interests as a proposed purchaser of the relevant Gertos entity's interest. These provisions are in the following terms: 24 Claim for compensation in compulsory acquisition cases (1) If - (a) a claim is made for compensation because of the compulsory acquisition of land in accordance with the Land Acquisition (Just Terms Compensation) Act 1991, Division 2 of Part 12 of the Roads Act 1993 or any other Act, and (b) no agreement is reached between the claimant and the authority required to pay the compensation, the claim is (subject to any such Act) to be heard and disposed of by the Court and not otherwise. (2) The Court shall, for the purpose of determining any such claim, give effect to any relevant provisions of any Acts that prescribe a basis for, or matters to be considered in, the assessment of compensation. (3) (Repealed) 25 Determination of estate, interest and amount (1) In hearing and disposing of any claim referred to in section 24, the Court shall have jurisdiction to determine the nature of the estate or interest of the claimant in the subject land and the amount of compensation (if any) to which the claimant is entitled. (2) In the exercise of its jurisdiction under subsection (1), the Court may order that any other person who claims to have had or who may have had an interest in the subject land at the date of acquisition or taking be joined as a party to the proceedings and may then proceed to determine the nature of the estate or interest of that person and the amount of compensation (if any) to which the person is entitled. (3) (Repealed)

Representation

1. The Gertos entities were represented by Mr P Tomasetti SC and Mr J Johnson and Mr T Poisel, barristers. TfNSW was represented by Mr R Lancaster SC and Mr M Astill, barrister. The Pamboris interests were represented by Mr James Jordan, solicitor. Helpful written submissions were provided for the Gertos entities and TfNSW.

Introduction

1. The hearings were held, as a consequence of the COVID‑19 pandemic, using Microsoft Teams software, without the necessity for any physical attendance in the courtroom. These hearings were conducted in accordance with the Court's then operating COVID-19 Pandemic Arrangements Policy.
2. The hearing was conducted in two phases. The first concerned market value matters, whilst the second related to a claim by each Gertos entity for payment of a stamp duty equivalent amount pursuant to s 59(1)(d) of the Land Acquisition Act.
3. This sequencing arose as a consequence of Mr Tomasetti and Mr Lancaster having advised me, at a pre-trial mention in the week before the trial proper was due to commence, that the Gertos entities and TfNSW had reached agreement as to the market value of each of the parcels of land acquired from the Gertos entities. This agreement was subject to my determination of any compensation entitlement for Portman Securities for the market value of the compulsorily acquired from Marsden Developments land.
4. For the purposes of addressing the confined issue relating to market value, Mr Tomasetti and Mr Lancaster had proposed, at the pretrial mention, that I be provided with a statement reflecting those facts which were agreed between the Gertos entities and TfNSW. This document would set out what these parties represented as being facts derived from the circumstances of these proceedings and having regard to the findings of Pain J (undisturbed by the Court of Appeal) concerning the inability of the Pamboris interests to settle, in one line, the contracts for purchase of the land owned by the Gertos entities. This process was not objected to by Mr Jordan for the Pamboris interests.
5. A timetable was set to have the Gertos entities and TfNSW settle the proposed Statement of Agreed Facts, with the commencement of the trial proper delayed until the following Monday afternoon.

The first phase hearing

1. The afternoon of Monday 22 February and part of the afternoon of Tuesday 23 February 2021 were spent addressing and finalising the terms of the proposed Statement of Agreed Facts proposed by the Gertos entities and TfNSW.
2. Following the finalisation of that Statement of Agreed Facts (the third settled version becoming Exhibit G), Mr Tomasetti and Mr Lancaster made submissions as to the conclusion I should draw, from those agreed facts, as to what entitlement, if any, Portman Securities had to compensation for market value of the land it had contracted to purchase from Marsden Developments (the relevant Gertos' vendor entity). This consideration was necessary because, based on the Valuer General's determination, TfNSW had paid Portman Securities $7,915,000 plus statutory interest as compensation for the portion of the market value of 166-172 Parramatta Road as reflecting the extent of the estate Portman Securities had in that site when it had been compulsorily acquired by TfNSW.
3. A Notice of Motion, based upon leave granted at the pre-trial mention, was filed by TfNSW seeking to rely upon a cross‑claim against Portman Securities in order to recover the principal and statutory interest paid to that Pamboris interest. This cross-claim was contingent on me accepting the position advanced based upon the Statement of Agreed Facts and the other evidence before me.
4. It is also to be observed that, during this phase, Mr Jordan, on behalf of the Pamboris interests:

• did not object to the terms of the Statement of Agreed Facts or seek to lead any evidence in contradiction of any element of it;
• did not object to leave being granted to TfNSW to rely on TfNSW's proposed cross‑claim; and
• upon leave being granted to TfNSW to pursue its cross‑claim, made no submissions and adduced no evidence in opposition to that cross‑claim.

Preparation for the second phase hearing

1. At the conclusion of the above described first phase of the hearing, I adjourned for two days to permit the filing of a bundle of material concerning the claims of each of the Gertos entities pursuant to s 59(1)(d) of the Land Acquisition Act to be paid a sum equivalent to the stamp duty liability which would arise if each of the Gertos entities was to seek to purchase a replacement property of the same market value as had been agreed between that Gertos entity and TfNSW as being the appropriate quantum of compensation to that Gertos entity for the compulsory acquisition of the site owned by it.
2. A timetable for filing of evidence and provision of written submissions for the second phase was settled at the conclusion of the first phase.

The second phase hearing

1. The second phase hearing took place on Friday 26 February 2021. It was confined, as noted above, to evidence and submissions related to the claims from each of the Gertos entities to payment of a stamp duty equivalent amount based on the market value of the land compulsorily acquired from that entity.
2. As will be seen from that which is later set out concerning the resolution of matters relating to the interrelationship of the Gertos entities and the Pamboris interests, the sole remaining issue in dispute in each of the Gertos entities' proceedings concerned the extent (if any) to which each Gertos entity was entitled to compensation for stamp duty which would be incurred if the relevant Gertos entity was to acquire a replacement property of the same value as that which had been acquired compulsorily.
3. These three confined disputes are of common statutory origin (s 55(1)(d) of the Land Acquisition Act) with these being the subject of the second phase of the hearing before me giving rise to this decision.
4. Mr Tomasetti made submissions in support of the Gertos entities' claims to be paid stamp duty equivalent amounts, whilst Mr Lancaster made submissions in opposition to those claims. The positions advanced for the Gertos entities and those in reply for TfNSW are later set out.
5. Two further observations are warranted: 1. First, Mr Lancaster foreshadowed that TfNSW intended to provide me with a set of proposed orders that were said to embody the appropriate outcome of its cross‑claim (with the legal representatives of the Gertos entities and of the Pamboris interests being afforded the opportunity to comment upon them); and 2. Second, Mr Jordan had been excused by me, at the conclusion of the first phase of the hearing, from participating in the second phase as no issues arose in this phase potentially engaging the interests of the Pamboris interests.
6. At the conclusion of the second phase, I reserved my decision on the matters requiring determination arising from both phases of the hearing.

Introduction

1. In this context, it is appropriate to note that, by this decision, I am addressing at first instance all remaining outstanding compensation issues in each proceedings commenced by the relevant Gertos entity. Although there are three separate proceedings (one being commenced by each of the Gertos entities), all three of these have been heard together, with evidence and submissions in each being, to the extent relevant, applicable in all three proceedings.
2. During the course of the hearings in these proceedings, in addition to adopting the commonality of evidence and submissions in the Gertos entities' proceedings, I also made the same ruling with respect to the TfNSW cross‑claim (the nature of this cross‑claim and its resultant outcome are later discussed in some detail).
3. The evidence in the proceedings was divided into two distinct tranches. The first tranche addressed the matters requiring determination in the first phase of the hearings - being matters arising from the uncompleted contracts for sale between each of the Gertos entities and the relevant corresponding Pamboris interest. The second tranche addressed the stamp duty equivalent compensation claim by each Gertos entity.

The first phase market value evidence

1. The material which was tendered for this phase of the hearing is set out below.
2. The evidence for Gertos entities was: 1. Statement of Agreed Facts (Version 1) (Exhibit A); 2. Supplementary Agreed Statement of Facts (Version 1) (Exhibit B); 3. Key documents comprising the Deed of Agreement and the Contracts for the Gertos entities, and the Advice from the Crown Solicitor's Office (Exhibit C); 4. Key documents (in Matter No 2018/207357 - Regency Capital Pty Ltd, 160-162 Parramatta Rd) (Exhibit C); 5. Key documents in Matter No 2018/207345 - London Capital Holding Pty Ltd, 164 Parramatta Rd) (Exhibit D); 6. Key documents in Matter No 2018/207366 - Portman Securities Pty Ltd, 166-172 Parramatta Rd) (Exhibit E); and 7. Supplementary Agreed Statement of Facts (Version 2 - final) (Exhibit G)
3. The documents in (c) to (f), noted above, were tendered in electronic form - having been provided to the Court by DropBox.
4. The affidavit evidence for TfNSW comprised two affidavits deposed by Mr Thomas White, a solicitor employed by its legal representatives. These affidavits were deposed in September 2020 and January 2021. Mr White was not required for cross-examination.
5. The documentary evidence for TfNSW was: 1. An expert report of Mr Geoff Green, a chartered accountant (Exhibit 1); 2. An expert report of Mr Anthony Mylott, a valuer (Exhibit 2); 3. An expert report of Dr Rodney Ferrier; a forensic accountant (Exhibit 3); 4. the bundle of documents exhibited to the affidavit of Mr Thomas White dated 19 September 2020 (Exhibit 4); and 5. TfNSW's cross‑claim (Exhibit 5)
6. No evidence on market value was tendered for the Pamboris interests.

The first phase cross‑claim evidence

1. TfNSW's evidence on the cross‑claim comprised Mr White's affidavit evidence noted above, together with the documents in Exhibit 4 noted above.
2. No evidence was tendered for Portman Securities on TfNSW's cross‑claim.

The second phase evidence

1. The evidence that was relied upon for the purposes of the stamp duty claim pursuant to s 59(1)(d) is set out below.
2. For the Gertos entities, the evidence was: 1. Three affidavits by Mr Bill Gertos, the guiding mind and functional controller of each of the Gertos entities. These three affidavits were dated 16 June 2020 and 25 and 26 February 2021. With respect to the first of these affidavits, only paragraphs 1 to 53 were relied upon, with Mr Tomasetti accepting a limiting ruling that Mr Gertos' evidence would only be admitted for the purposes of the claim under s 59(1)(d) with respect to those paragraphs and to the contents of the two affidavits of February 2021; and 2. a bundle of documents (BG-4) exhibited to Mr Gertos' affidavit of 26 February 2021 was tendered, becoming Exhibit H.
3. Mr Gertos was not required for cross-examination.
4. A bundle of electronic documents had been provided by TfNSW, using Dropbox, in a folder entitled "Disturbance". There were 86 electronic documents in this folder. Mr Lancaster indicated that, of the documents contained in the folder, not all were tendered on behalf of TfNSW. It is to be observed that, during the course of this disturbance claim phase of the hearing, I was not taken to the detail of any of these documents that had been provided electronically for TfNSW. Because of this, it is not necessary to list these documents; however, they collectively became Exhibit 6.
5. In addition to these documents, an affidavit deposed by Mr Constantine Savell of 14 September 2018 (which affidavit had originally been filed and served on behalf of the Gertos entities) was tendered for TfNSW for the purposes of the stamp duty claims of the Gertos entities. This affidavit became Exhibit 7.

The Statement of Agreed Facts

1. As earlier noted, a Statement of Agreed Facts was adopted by the Gertos entities and TfNSW. As also earlier noted, this document was refined during the course of the first phase hearing, with the version relied upon by the Gertos entities and TfNSW becoming Exhibit G.
2. Although not adopted by the Pamboris interests, it is to be observed that the Pamboris interests did not submit that I should not accept this Statement of Agreed Facts as being true and did not adduce any evidence in contradiction of any matters contained in it. Its contents thus became uncontested evidence in these proceedings.
3. The terms of the Statement of Agreed Facts (Exhibit G) were: This Statement of Agreed Facts contains the facts which are agreed between the Applicants and the First Respondent for the purposes of section 191 of the Evidence Act 1995 (NSW) and the Court determining the issues raised in each proceeding being the Notices of Motion filed 13 May 2020 by the Applicants in each of the proceedings and the First Respondent's Cross‑claim filed on 19 February 2021 in 2018/207366 (Marsden / Portman). Background 1 On 9 February 2018, the First Respondent compulsorily acquired the interests of the Applicants and the Second Respondents in the land located at 160-162, 164 and 166-172 Parramatta Road, Annandale (also known as Camperdown) for the purposes of the Roads Act 1993 (NSW) (the Acquired Land). 2 The Applicants are related corporate entities. 3 The Second Respondents are collectively, the purchasers of the land in the Contracts for Sale of Land and a Deed referred to below. 4 The Second Respondents were incorporated shortly before the entry into the contracts and Deed and were related corporate entities owned and controlled by Mr Mario Pamboris. 5 On 28 June 2016, the Applicants sold the land to the Second Respondents (as purchasers) pursuant to three contracts for sale of land (Contracts) and a Deed of Agreement (Deed), each dated 28 June 2016. 6 It was a term the Contracts that the date for settlement of the Contracts was 28 June 2018 or such earlier time nominated by the purchaser giving 35 days' notice. 7 A deposit was paid by each of the Second Respondents of $50,000 on the exchange of each Contract and the deposit (totalling $150,000) was released to the Applicants (as vendors). 8 The total purchase price for the Acquired Land was $56,500,000. 9 It was a term of the Deed that "Completion of settlement for each of the contracts, validly exchanged on 28th June, 2016, is dependent upon each of the contracts settling simultaneously", such that all three Contracts had to be completed at the same time, such that if one sale did not complete then none of the sales would complete. 10 At the date of acquisition (DOA), the Contracts had not been completed. 11 Upon compulsory acquisition of the Acquired Land, all interests in the land were extinguished pursuant to section 20 of the Land Acquisition (Just Terms Compensations Act 1991 (NSW) (JT Act) and the Applicants and the Second Respondents became entitled to compensation pursuant to section 37 of the Just Terms Act. 12 At the DOA: a. the Applicants were vendors under the Contracts and b. had a legal and equitable interest in the land the subject of the Contracts; c. The Second Respondents were purchasers under the Contracts each had an equitable interest in the land the subject of the Contracts. 13 The Valuer General (VG) was required to determine the compensation to which each interest holder was entitled. 14 In making that determination the VG sought legal advice from the Crown Solicitor's Office (CSO). 15 On 23 February 2018 the CSO advised the VG that: a. the "market value" of each parcel of the land was to be determined in accordance with section 56(1) of the JT Act as at the DOA; b. where the "market value" of the land exceeded the purchase price for the relevant parcel of land under each contract, the relevant Applicant (as vendor) was to be paid the purchase price and the purchaser was to be paid the difference between the market value and the purchase price; c. if the market price was less than the purchase price for the relevant parcel of land under the contract, the Applicant (as vendor) was to be paid the market value and not the purchase price and the purchaser was to be paid nothing. 16 The CSO did not when advising the VG refer to the Deed or the requirement in it that all three Contracts had to be completed at the same time, such that if one sale did not complete then none of the sales would complete. 17 The VG followed the CSO advice and on 22 June 2018 determined that the "market value" of each of the three parcels of land was: Property Contract price Market value sec 56(1) 160-162 Parramatta Road $27,500,000 $14,200,000 164 Parramatta Road $23,000,000 $4,985,000 166-172 Parramatta Road $6,000,000 $13,915,000 $56,500,000 $33,100,000

18 The VG determined the compensation to be paid to the Applicants (as vendors) and the Second Respondents (as purchasers) for the "market value" of the acquired land, relying on the CSO advice, was: Parcel of land Applicants Second Respondents 160-162 Parramatta Road $14,200,000 Nil (G Capital) (Regency) 164 Parramatta Road $4,985,000 Nil (Gertos Holdings) (London) 166-172 Parramatta Road $6,000,000 $7,915,000 (Marsden) (Portman) $25,185,000 $7,915,000

19 The First Respondent: a. offered compensation for market value to each interest holder in accordance with the above table; b. offered amounts to each of the Applicants for losses attributable to disturbance; and c. offered a further $11,000 to each of the Second Respondents for losses attributable to disturbance. 20 On 5 July 2018 each applicant objected to the determination of compensation under section 66 of the Land Acquisition (Just Terms Compensation) Act 1991. 21 On 21 November 2018 the second respondents, London Capital Holdings Pty Ltd (LCH) and Regency Capital Pty Ltd (RC), objected to the determinations of compensation under section 66 of the Land Acquisition (Just Terms Compensation) Act 1991. 22 Portman Securities Pty Ltd (PS) did not object and accepted the offer referred to in pars 18 and 19 above. 23 On 24 June 2019 LCH and RC discontinued the proceedings commenced by them and signed Deeds of Release in favour of the first respondent. 24 On 14 February 2019 Pain J. in these proceedings ([2019] NSWLEC 12 at [90]) found that two of the purchasers, LCH and RC, would not have been able to raise sufficient money to complete the contracts, and the purchasers could not have completed in one line. 25 The Purchasers could not have settled the Contracts in one line as at the DOA. 26 In these proceedings, as part of a separate question hearing, Justice Pain found, based on the evidence before her, that: a. there is evidence that only one of the Second Respondents could have completed the purchase of one lot at the date of settlement (see G Capital Corporation Pty Ltd; Gertos Holdings Pty Ltd; Marsden Developments Ltd v Roads and Maritime Services [2019] NSWLEC 12 at [90] per Pain J (G Capital Corporation)); b. two of the Second Respondents would not have been able to raise sufficient money to complete the contracts (see G Capital Corporation at [90]); and c. the Second Respondents could not have completed all Contracts in one line (see G Capital Corporation at [90]). 27 The evidence that was before Justice Pain that led to her findings in [90] noted above were expert reports from: a. Mr Geoff Green, Chartered Accountant; b. Mr Anthony Mylott, Valuer; and c. Dr Rodney Ferrier, Forensic Accountant 28 The findings made by Justice Pain noted above at paragraph 26 were not disturbed on appeal (G Capital Corporation Pty Ltd v Roads and Maritime Services [2019] NSWCA 234). 29 On the basis of the expert reports noted in paragraph 27 above, (these having been tendered in these proceedings before Justice Moore - becoming Exhibits 1, 2 and 3), the Applicant and the First Respondent agree that Justice Moore has proper evidentiary foundations to make findings in the same terms as those made by Justice Pain in paragraph [90] noted above at paragraph 26, namely that: a. only one of the Second Respondents could have completed the purchase of one lot at the time for completion; b. two of the Second Respondents would not have been able to raise sufficient money to complete the contracts, and c. as the necessary consequence of (a) and (b), the Second Respondents could not have completed the contracts for sale in one line as required by the Deed (as noted at paragraph 9).

Submissions on the Gertos entities' market value issues

The Gertos entities' position

1. Mr Tomasetti submitted, if the position was correctly understood, that Portman Securities had no entitlement to any market value compensation arising from TfNSW's acquisition of 166-172 Parramatta Road.
2. The first proposition Mr Tomasetti put was that, as the sale from Marsden Developments to Portman Securities had not completed, such interest as Portman Securities had in the property at 166-172 Parramatta Road was an equitable interest (citing the reasons of Deane J in Kern Corporation Ltd v Walter Reid Trading Pty Ltd (1987) 163 CLR 164; [1987] HCA 20 at page 191).
3. He then took me to various contractual documents between the relevant Gertos entity and the corresponding Pamboris interest to show the nature of the special conditions attaching to the various contracts for sale of the Gertos entities' properties to the Pamboris interests. These conditions, he submitted, made it clear that that which was mandated by the deed entered into by all of the Gertos entities and all of the Pamboris interests (mandating the settlement of the three sales in one line) made it clear that, for Portman Securities to have a compensable market value interest in 166‑172 Parramatta Road, it would need to be demonstrated that all three properties could have settled in one line as the documents established and the deed mandated.
4. In this regard, paragraphs 9 and 10 and 24 to 29 of the Statement of Agreed Facts settled between the Gertos entities and TfNSW provided a proper basis for the conclusion that Portman Securities equitable interest in 166‑172 Parramatta Road had no compensable market value as a consequence of the inability of all three interests to settle all three purchases at the one time.
5. Portman Securities' purchase price from Marsden Developments was $6 million, whilst the compensation determination by the Valuer General for 166-172 Parramatta Road was $13,915,000. As a consequence of the valuation being $7,915,000 in excess of the contract price for the sale of 166‑172 Parramatta Road from Marsden Developments to Portman Securities, the Valuer General determined that the compensation to Marsden Developments should be $6 million, whilst the compensation to Portman Securities should be the balance above that amount ($7,915,000).
6. Mr Tomasetti also took me to the Crown Solicitor's advice to the Valuer General concerning compensation matters arising relating to the three properties here involved. As Mr Tomasetti noted (Transcript 23 February 2021, page 22, lines 22 to 26), the Crown Solicitor's advice to the Valuer General did not refer to the deed that mandated settlement for the purchases of all three Gertos entities' properties by the Pamboris interests to be at the same time.

The TfNSW position

1. The position taken by TfNSW was succinctly put by Mr Lancaster as being (Transcript 23 February 2021, page 27, line 44 to page 28, line 2): Transport neither consents nor opposes that determination being made and we leave ourselves in your Honour's hands as to that determination. If your Honour determines in accordance with what my friend has put that the purchaser's interest in each case, including Portman, involves an entitlement to compensation of nil so far as market value is concerned because the contracts couldn't be completed in one line, in our submission that activates s 48(5) and Transport has a statutory procedure available to it by which it can recover an amount of compensation which has been paid to which a person is not entitled.

The Pamboris interests' position

1. See below at [88].

Consideration of market value issues

1. Given the unusual way that the evidence and submissions on market value matters have evolved, the conclusion to be drawn does not require lengthy elaboration.
2. In the absence of contest by either TfNSW or the Pamboris interests as to the validity of the submissions made by Mr Tomasetti on behalf of Marsden Developments (as supported by the relevant paragraphs of the Statement of Agreed Facts - evidence uncontested on behalf of Portman Securities as earlier noted), I am satisfied that I should determine that Portman Securities had no entitlement to compensation for its equitable interest in 166‑172 Parramatta Road and that, as a result, the appropriate compensation determination for that interest is "Nil".
3. The result of this determination is that the entirety of the market value compensation agreed by the Gertos entities and TfNSW is to be paid to those Gertos entities.

The Gertos entities' position

1. Entirely understandably, Mr Tomasetti made no separate submissions concerning the TfNSW cross‑claim.

The TfNSW position

1. The written and oral submissions advanced for TfNSW were, necessarily, contingent on my determination concerning the quantum of compensation for market value (if any) to which Portman Securities was entitled.
2. If I was to find that Portman Securities had no market value compensation entitlement, it was submitted this necessarily gave rise to a position where s 48(5) of the Land Acquisition Act was called into play giving rise to an overpayment to be repaid to TfNSW with, as a consequence, the Court having the power to make an order pursuant to s 48(6) that Portman Securities was to repay the amount claimed by TfNSW in this cross‑claim.
3. Mr Lancaster submitted that there was no doubt that, for the purposes of s 48(6), I was empowered to make the orders necessary to require that Portman Securities make the necessary repayment to TfNSW (citing Sheahan J in Brock v Roads and Traffic Authority of New South Wales (No.2) [2012] NSWLEC 114 (Brock)).
4. He submitted that the appropriate period of time within which such repayment should be ordered would be within 28 days of the date of the orders in these proceedings.

Portman Securities' position on the cross‑claim

1. At the conclusion of Mr Lancaster's submissions in support of the cross‑claim, Mr Jordan sought a short adjournment to seek further instructions. After receiving those instructions, he advised me that he did not wish to make any submissions in reply (Transcript 23 February 2021, page 31, lines 18 to 20): JORDAN: My client has been present in the room and has heard submissions and my instructions are not to make any submissions, your Honour. Just to accept the Court's decision.
2. By necessary inference, this position applied to that which had been advanced as set out above with respect to both the market value submissions advanced for Marsden Developments and the TfNSW cross‑claim.

TfNSW's proposed orders

1. During the course of the second phase hearing, Mr Lancaster foreshadowed that TfNSW would provide a proposed set of orders against the eventuality that I might determine that the cross‑claim should be granted. On 26 February 2021, TfNSW's solicitor e-mailed to my Associate a copy of TfNSW's proposed orders on the cross‑claim.
2. Those proposed orders were also provided to the legal representative of Marsden Developments and to the legal representative of Portman Securities (these two entities being those in the matter pertaining to the cross‑claim).
3. The terms of TfNSW's proposed orders were: The Court: 1. Determines that the nature of the estate or interest of the Second Respondent in Lot 1 in DP 776389 known as 166-172 Parramatta Road, Annandale (the Acquired Land) as at 9 February 2018 was an equitable interest as the purchaser under a contract for the sale of land that had been exchanged but not completed. 2. Determines that the amount of compensation to which the Second Respondent is entitled in respect of the acquisition of the Acquired Land is: (a) as to market value under s 55(a) of the Land Acquisition (Just Terms Compensation) Act 1991: NIL (b) as to loss attributable to disturbance under s 55(d) of the Land Acquisition (Just Terms Compensation) Act 1991: $11,000 (c) as to all other matters referred to in s 55 of the Land Acquisition (Just Terms Compensation) Act 1991: NIL 3. Orders, pursuant to s 48(5) of the Land Acquisition (Just Terms Compensation) Act 1991, that the Second Respondent repay to the First Respondent: (a) the amount of $7,915,000 paid by the First Respondent to the Second Respondent on 13 August 2018 (being the amount paid as compensation for market value under s 55(a) of the Land Acquisition (Just Terms Compensation) Act 1991 in accordance with the First Respondent's then obligations under s 42(1) and s 44 of the Land Acquisition (Just Terms Compensation) Act 1991); plus (b) the amount of $107,513.89 paid by the First Respondent to the Second Respondent on 13 August 2018 (being an amount for interest on the amount in (a) above pursuant to s 49(1) of the Land Acquisition (Just Terms Compensation) Act 1991). within 28 days of the date of these orders.

Marsden Development's position on TfNSW's proposed orders

1. On 26 February 2021, my Associate received an e-mail from the legal representative for Marsden Developments indicating that Marsden Developments' position on TfNSW's proposed orders was: The Applicant (Marsden): A. Consents to Orders 1 and 2; and B. Neither consents to, nor opposes, Order 3, in the proposed SMO.

Portman Securities' position on TfNSW's proposed orders

1. Portman Securities' legal representative advised my Associate on Monday 1 March 2021 that: We are instructed to make no submissions with respect to the form of orders proposed as against our clients by Transport for NSW.

Consideration of cross‑claim (Introduction)

1. In light of the absence of any submission on behalf of Portman Securities in opposition to TfNSW's cross‑claim and my earlier explained conclusion, based on what was set out in the position agreed by the Gertos entities and TfNSW for all three proceedings (as set out in the Statement of Agreed Facts), I am satisfied that the payment made by TfNSW to Portman Securities of $7,915,000 (plus statutory interest) constitutes a payment falling within the scope of s 48(5) of the Land Acquisition Act and is thus amenable to be recovered by TfNSW in a court of competent jurisdiction (s 48(6) of the Land Acquisition Act).
2. The questions that then arise, given that TfNSW seeks to have this Court make such an order, are: 1. whether or not I have jurisdiction to consider making such an order? and 2. if so, under the circumstances ought I exercise that power in the fashion proposed by TfNSW?

Consideration of cross‑claim (Jurisdiction)

1. I have earlier set out the terms of s 16(1A) of the Court Act. It is, for present purposes, appropriate to reproduce its terms again. The provision reads: 16 Jurisdiction of the Court generally (1) ... (1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act.
2. I am satisfied that, on a proper reading of this provision, the jurisdiction of the Court established by it is sufficiently broad to encompass addressing matters arising from the cross‑claim made by TfNSW against Portman Securities. This position, in the context of whether or not the Court could engage with the issue of an overpayment to a party whose interest in land had been compulsorily acquired, was addressed by Sheahan J in Brock at [88] and [89]. His Honour concluded that this Court did have jurisdiction to consider such an application when it was ancillary to proceedings addressing an objection to a compensation determination. That is the case here. I am satisfied, for the reasons set out by his Honour, that the conclusion which he reached was the correct one.

Consideration of cross‑claim (Power)

1. TfNSW proposed that s 22 of the Court Act established a proper basis upon which I would have the power to make a repayment order of the nature sought by TfNSW.
2. When considering the role of s 22 of the Federal Court Act 1976 (Cth), a provision in near identical terms to that of s 22 of the Court Act, the High Court held that the provision was one which vested very broad power in the Federal Court to dispose of matters where, independently, there was a proper statutory foundation establishing that that court had jurisdiction to deal with the matter (Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7).
3. This position is applicable, by analogy, to s 22 of the Court Act, thus making clear that, in circumstances where I have jurisdiction (as I do for the reasons earlier explained), I also have power to make an order of the nature sought by TfNSW.
4. This position reflects the overall conclusion reached by Sheahan J in Brock (relying on the Court of Appeal's decision in Haig v Minister Administering the National Parks & Wildlife Act (No 3) (1996) 90 LGERA 408). His Honour determined that he did have both jurisdiction and power to make an order for the recovery of an overpayment of compensation made upon the compulsory acquisition of an interest in land pursuant to the Land Acquisition Act.
5. I also respectfully adopt his Honour's reasoning and conclusion on this point as being here applicable.

Conclusion on the cross‑claim

1. As I am satisfied that I have both jurisdiction and power to make an order as sought by TfNSW for the recovery of the compensation paid to Portman Securities (when that entity had no entitlement to such compensation), there is no discretionary reason (given that Portman Securities advances no submission that I ought not make such an order) why I should not do so.
2. It is therefore appropriate that I uphold TfNSW's cross‑claim and make such an order.

Introduction

1. The written submissions on behalf of the Gertos entities describe the matters to be addressed in these proceedings in the following terms: 2 The only remaining dispute between the Applicants and the First Respondent relating to the Applicants' entitlement to compensation under s 55 of the JT Act concerns their claim for stamp duty pursuant to s 59(1)(d) of the JT Act and/or s 59(1)(f).
2. However, it is also to be noted that the Gertos entities' written submissions, dated 24 February 2021, expressly disavowed that these stamp duty equivalent payment claims sought to canvass the "no actual use" determinations already made in earlier decisions in these proceedings (those noted at [11] and [13]). The written submissions said, at paragraphs 17 and 18: 17 The Applicants maintain their position that they had an "actual use" of the Acquired Land at the DOA and reserve their right to seek special leave to appeal to the High Court of Australia. In the meantime, and pending any such ultimate appeal, the Applicants accept that this Court is bound by the decision of Justice Pain and the Court of Appeal decision in determining the proceedings: Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 at 642; [1965] 2 All ER 4; O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 245, 260 and 295. 18. 18 The Applicants make no further submission that stamp duty is recoverable under sec 59(1)(f) of the JT Act at this time.
3. The claim now pursued for each of the Gertos entities is pursuant to s 59(1)(d) - a claim seeking to be paid a stamp duty equivalent amount to each of the entities based on the stamp duty which would arise to be paid if, in each instance, a property to the same value of the market value now agreed with TfNSW was to be purchased.
4. Mr Tomasetti addressed the differences between s 59(1)(d) and (f) as follows (Transcript 26 February 2021, page 43, line 44 to page 45, line 19): But I return to my original proposition a moment ago, the discussion about stamp duty recovery is probably no longer open if the claim is made under s 59(1)(f) because s 59(1)(d) expressly provides for recovery of stamp duty and is by reference to that section that such recovery can only be made in our submission, that's not to say that if the claim under Fitzpatrick, in the Fitzpatrick case had been attempted to be characterised by reference to s 59(d), now (1)(d), that it wouldn't necessarily have been successful. It's just that going to s 59(1)(f) to try and understand what s 59(d) is about, in our expression is a flawed approach. I should also make the observation that s 59(1)(d) carries with it several qualifications or two qualifications at least that do not arise in relation to s 59(1)(d). And those qualifications are firstly, that it has to be a financial cost relating to the actual use of the land. The words, "the actual use of the land" do not appear in s 59(1)(d). Secondly, the cost or loss must be as a direct and natural consequence of the acquisition and those words have been important in the consideration of cases surrounding claims for stamp duty. Why? Because the concept of direct and natural consequence has played upon the circumstance of a person who had a property was a given monetary equivalent of its market value when it was acquired and has then decided to reinvest in real estate. The Courts have consistently said with some exceptions where one is dealing with businesses which hold a lot of land, the Courts have generally said if you've got an investor who holds a single property and the land is taken away, he gets the money in his hand and he can then make a decision as to where he puts the money. Bonds. Stock market. Randwick races.

Mr Gertos' business activities

1. In his affidavit of 25 February 2021, at paragraphs 4 to 7, Mr Gertos described his past and present business activities in the following terms: 4 I describe each company as a special purpose vehicle (SPV) as the purpose of their being incorporated was to own for the time being and/or carry out any development of a particular parcel of land if and when that occurred. Each of the applicants in these proceedings I regard as a SPV. 5 My business has been to buy a parcel of land and then to develop it in the ways I have previously described in my earlier affidavit. Sometimes my development plans became redundant for a particular parcel if an opportunity arose to sell the land at a profit arose without carrying out development. 6 At present I am in the process of developing land at 137 Campbell Hill Road, Chester Hill, NSW for 100 residential units. I purchased that land in March 2020 for $6,350.000. I obtained a development consent for that development. Annexed and marked "B" is a copy of the development consent (Determination and Statement of Reasons dated 17 August 2017). The land was purchased in the name of a SPV namely Waldron Hill Properties Pty Ltd. I am the sold [sole] director and shareholder of that company. Annexed and marked "C" is a copy of an ASIC extract for Waldron Hill Properties Pty Ltd obtained 25 February 2021. 7 I have also purchased land at 921-925 Punchbowl Road, Punchbowl, NSW in the name of Westwood Capital Pty Ltd for $26 million. I am the sole director and shareholder of Westwood Capital Pty Ltd. Annexed and marked "D" is a copy of an ASIC extract for Westwood Capital Pty Ltd obtained 21 February 2021. Contracts were exchanged on 27 December 2019 and settlement has not yet occurred. Annexed and marked "E" is a copy of the front page of the Contract and execution page. I caused to be made an application for a Gateway determination to rezone the land at Punchbowl. A copy of the Gateway determination dated 25 May 2018 is annexed and marked "F". I am proposing to develop a shopping centre and shop top housing (380 dwellings) on that site.
2. It is not necessary consider the detail of any of the documents referenced in the above paragraphs of Mr Gertos' affidavit.

The Gertos' interests' position

1. In the context of the stamp duty claims of each of the Gertos entities here being considered, Mr Tomasetti advanced the proposition that each of these Gertos entities was a special purpose vehicle established by Mr Gertos for the purposes of holding the relevant land which had been acquired by compulsory acquisition.
2. The land owned by each of the Gertos entities involved in these proceedings was held, Mr Tomasetti submitted, as an integral part of Mr Gertos' business. As earlier set out from Mr Gertos' affidavit evidence, his business activities are multifaceted. It is under the umbrella of Mr Gertos' business, it was submitted, that each of the Gertos entities here involved is entitled to be compensated in a sum that represents the stamp duty amount that would be incurred if each of those entities was to purchase a replacement property of the same market value as that which has been compulsorily acquired from that entity.
3. It is to be noted, in passing, that although there is no evidence that any of the three Gertos entities have actually acquired a replacement property and thus incurred stamp duty, such a transaction and duty liability does not have to be effected for a stamp duty entitlement to arise if all the other relevant elements of s 59(1)(d) are satisfied (Melino v Roads and Maritime Services (2018) 98 NSWLR 625; [2018] NSWCA 251 (Melino) at [103]).
4. In this context, Mr Tomasetti summarised the position which he submitted rendered necessary the awarding of a stamp duty equivalent payment to each of the Gertos entities, as this approach was required to be consistent with the overall framework set by the Land Acquisition Act for providing adequate and complete compensation to dispossessed owners. He said (Transcript 26 February 2021, page 52, lines 26 to 37): If the person is given the market value of the land and wants to go and buy other land, then he's not being fully compensated for his loss by just paying the market value. If you get compensation and you want to go and buy shares well you don't incur stamp duty cost. If you want to go and buy government bonds you don't incur a tax or a duty. But if you want to go and buy you do. So what 59(1)(d) we respectfully submit is addressing and it's a fact with provision designed to properly compensate people in appropriate circumstances is to ensure that if they get a million dollars in compensation, they want to then go and buy land to replace that which they have lost, they don't have to then go into their own savings to find whatever is the relevant stamp duty component on that purchase. Here we're talking about much larger sums but the same philosophy applies.

The TfNSW position

1. In summary, the position advanced on behalf of TfNSW, in both its written and oral submissions, is that the issue of relocation does not arise on the facts in each of these proceedings as there is nothing to relocate in each instance. Thus, TfNSW says, there is no entitlement to any stamp duty equivalent compensation.
2. Written submissions were provided for TfNSW opposing the claims by the Gertos entities for a stamp duty equivalent payment pursuant to s 59(1)(d) of the Land Acquisition Act. The position advanced for TfNSW in the written submissions (and later expanded upon by Mr Lancaster in his oral submissions) was based on three propositions. These were that: 1. Despite the fact that the compulsory acquisitions from the Gertos entities took place in February 2018, no relocation of anything had been effected by any of the Gertos entities since that date; 2. As there was no actual use by the Gertos entities of any of the compulsorily acquired parcels of land, there was nothing that could or might be relocated by any of the Gertos entities; and 3. The only potential claimant, in each proceeding, was the relevant Gertos entity from which the land had been compulsorily acquired so that (paragraph 4(c)): … The expectations and intentions of someone else (whether it be Mr Gertos, the Gertos group, or other special purpose vehicles) are immaterial and could not establish any entitlement of any of the Gertos entities to a stamp duty equivalent payment.
3. With respect to the first of the earlier set out summary propositions, TfNSW relied upon what was put to be the correct understanding of the decision of Payne J in the Court of Appeal in Melino at [104]. None of the Gertos entities could be regarded as being located on the land at the time of acquisition as they had not been making any use of the land at that time. TfNSW noted that these decisions were not, for the purposes of these proceedings, questioned by the Gertos entities.
4. In his oral submissions, Mr Lancaster put that the decision of the Court of Appeal in Melino was relevant because the critical element to which Payne JA had referred in [104] was that there was no one living on the land (from amongst "those persons" for the purposes of s 59(1)(a) and thus for s 59(1)(d)) capable of being relocated.
5. Mr Lancaster also submitted that, with respect to Mr Tomasetti's reliance on Fraietta, this decision revealed, at [170], that the circumstances there were ones where (Transcript 26 February 2021, page 59, lines 44 to 47): … people or a business or physical objects on the land that are being relocated by the person entitled to compensation such that purchase of land for that relocation was an expense which has been incurred or likely to be incurred by that person.

The Gertos interests' reply submissions

1. Mr Tomasetti commenced his reply submissions by confirming that the Gertos entities were not "landbanking" and that it was the agreed position that no claim pursuant to s 59(1)(f) was available in these proceedings - now reflecting the settled state of the law.
2. With respect to Mr Lancaster's submissions concerning [346] of Pain J's decision in SNS, Mr Tomasetti accepted that Mr Royal was actually developing the land that had been acquired from that special purpose vehicle and, as a consequence, the compensation was appropriate to be awarded pursuant to s 59(1)(f). However, he submitted that Mr Royal's business structure was a relevant consideration, putting (Transcript 26 February 2021, page 62, lines 26 to 29): … that her Honour was right to take into account these background facts and matters in determining whether or not the applicant was entitled to the specific form of compensation albeit that she was applying different tests.
3. With respect to Melino and Fraietta, as relied upon by Mr Lancaster, Mr Tomasetti put that I would not accept what had been proposed for TfNSW because of the particular factual circumstances in those proceedings. He said that those factual circumstances were not akin to those with which I was dealing. He submitted (Transcript 26 February 21, page 62, line 49 to page 63, line 1): We don't have to establish a need to buy another property but what we do need to establish is a reasonable - that this is a cost that might reasonably be incurred.
4. Mr Tomasetti also submitted that I should have no regard to the fact that the acquisitions from the Gertos entities had taken place in early 2018 as evidencing any factor relevant in my consideration, given that the Gertos entities had been involved in litigation during that period, saying (Transcript 26 February 2021, page 63, lines 14 to 18): … nothing should be inferred against a dispossessed owner in respect of this argument where the resuming authority says, "Well you haven't gone and bought anything in the meantime" when they're locked in litigation trying to determine what the appropriate amount of compensation to be paid is.
5. After a short interruption in proceedings because of malfunctioning of the Court's recording equipment, Mr Tomasetti returned (Transcript 26 February 2021, page 64, lines 5 to 16) to: … addressing Mr Lancaster's submission that we were arguing against the policy of the Act and what I have said there was the policy of the Act is reflected in its objectives and the objective is that the compensation will be not less than the market value of the land, clearly contemplating payment of compensation about that where appropriate. The same policy is reflected in s 10 where there's a statutory statement of the guarantee for the same effect. Accordingly, there's nothing contrary to the policy of the Act when you read the Act with s 54 to say here's the state exercising its power to take private property and there's compensation to be paid to ensure the person is not disadvantaged. That's the policy of the Act and that's consistent with our broad submissions, that the approach to s 54(1)(d) should not be narrowly confined but should be confined broadly.

Introduction

1. It is to be observed that much of the past litigation concerning potential entitlement to stamp duty payment as a consequence of a compulsory acquisition of land has been founded on a claim for such an entitlement arising under s 59(1)(f) - as a financial cost falling on the dispossessed owner as a consequence of the compulsory acquisition and relating to the actual use of the land.
2. In these proceedings, it is accepted by the Gertos entities and TfNSW that recent decisions of the Court of Appeal (Roads and Maritime Services v United Petroleum Pty Ltd (2019) 99 NSWLR 279; (2009) 236 LGERA 389; [2019] NSWCA 41 (United Petroleum); Alexandria Landfill Pty Ltd v Transport for NSW (2020) 243 LGERA 102; [2020] NSWCA 165 (Alexandria Landfill)) have had the effect of narrowing the scope of potential recovery pursuant to s 59(1)(f), so that a broader stamp duty claim can no longer be pursued seeking to utilise that provision.
3. Although s 59(1)(f) is no longer available as a potential vehicle for claims such as these made by the Gertos entities, aspects of those past decisions do provide assistance in reaching a proper understanding of how the wording of s 59(1)(d) is to be understood.
4. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, at [70] and [71], made it clear that the meaning of the provisions of a statute is to be ascertained by examining the context in which the language of those provisions is used and seeking to give effect to the purpose and language of the provisions.
5. Although, in Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9, the High Court explained that the notional incorporation of additional words, if necessary, for a proper and coherent understanding of a statutory provision was permissible, there is no such necessity here arising. The language of s 59(1)(d) does not warrant importing any expansionary or qualifying words.
6. It is also to be observed that, although s 59(1)(c) is confined to circumstances where the relocation is confined to being of "those persons", decisions concerning understanding of the concept of relocation in that statutory provision are also of assistance in understanding how that word is to be taken in the context here involved.
7. Although the case advanced by Mr Tomasetti on behalf of the Gertos entities was cogently argued, the complexity of the path advocated to the proposed conclusion that a stamp duty equivalent entitlement arises as a consequence of relocation is flawed.

The decisions in SNS and Hua

1. I have earlier set out the submissions made by Mr Tomasetti proposing that Pain J's decision in SNS should be followed, by analogy, as a basis for establishing that each of the Gertos entities was entitled to a stamp duty payment as has been claimed. I there indicated I would set out an exchange I had with Mr Tomasetti - an exchange raising my concerns about the relevance of SNS. That exchange was in the following terms (Transcript 26 February 2021, page 46, line 32 to page 47, line 20): HIS HONOUR: But she doesn't explain, does she, as to why Mr Royal constitutes "the person" for the purposes of 59(1)(a) and that "the person" somehow lifts SNS up into some corporate aggregation. There is no reason at all given for that conclusion, is there? TOMASETTI: I don't think she did what your Honour said. What she awarded was stamp duty for replacement land to SNS. That was the company from whom the land was acquired. HIS HONOUR: I understand that but her reasoning, at least as I read that paragraph, was because it was within Mr Royal's umbrella group of development companies and that the basis was that Mr Royal was entitled to be recompensed for stamp duty even if paid to SNS and that was in circumstances where SNS was, in fact, undertaking a development activity on the relevant site at the time of its acquisition. TOMASETTI: With respect, I don't accept that, your Honour. What her Honour was doing was entertaining a claim for replacement of stamp duty, tried to understand, by accepting facts advanced by Mr Royal, that he was the controlling interest of this and other companies and that the business of the company from whom the land was acquired was an integral part of an overall business which was involved in land development. HIS HONOUR: So in that case, doesn't what follows, for example, in the discussion at 348 and onwards, mean that there was the commencement of a use of the land for the purposes of development, something which is absent in these proceedings as a consequence of the Court of Appeal's decision. TOMASETTI: She was dealing with a claim under s 59(1)(f), your Honour, and that required a finding that the land was being actually used. In s 59(1)(d) there is no such requirement-- HIS HONOUR: I understand that but you've been careful to tell me I should tread very carefully with respect of decisions under 59(1)(f) as a consequence of more recent authority which has had the effect, if I could say this in short terms, of significantly tightening up what is potentially available under 59(1)(f) and it's in the constraints that are put on me by the decisions of the Court of Appeal in United and George D Angus and in Alexandria Landfill that I must approach any of the heads under 59(1).

Judicial consideration of the concept of relocation

1. Historically, the position has been that for relocation to be effected in a fashion which would give rise to a stamp duty equivalent compensation payment (whether the relocation took place or not being, in the present context, immaterial), the actual or potential relocation needed to be a relocation of an actual use of the land (whether of physical assets or a physical activity also being immaterial). This is exemplified by two cases cited in these proceedings. Those cases and the relevant passages from the decisions in them are set out below.
2. In McBaron v Roads and Traffic Authority of New South Wales (1995) 87 LGERA 238, Talbot J found, at 248, that the applicant was entitled to compensation for stamp duty on acquisition of replacement grazing land to be used to become part of the dairy farm - that is, for the relocation of an actual use on the replacement land.
3. In Kirela, Cowdroy J found, at [14], that because the applicant had not relocated its business, it was not entitled to compensation under s 59(1)(d) of the Land Acquisition Act saying 14 Pursuant to s 59(d) of the Act stamp duty costs reasonably incurred "in connection with the purchase of land for relocation" is recoverable. The applicant did not "relocate" its business and is therefore not entitled to recover stamp duty costs pursuant to s 59(d) of the Act.
4. In Bezzina, at [112], Talbot J concluded that a claim pursuant to s 59(1)(d) of the Land Acquisition Act was not maintained because "no physical activities [were] to be relocated" as a result of the acquisition. He said: 112 Following the lapse of the Rosecorp consent, for the reasons outlined, the land could not be utilised for "actual use" in connection with the business of the applicant as a developer. A claim for reimbursement pursuant to s 59(d) was not pursued as no physical activities are to be relocated as a consequence of the compulsory acquisition of the land.
5. These cases proceeded on the assumption that some direct manifestation of what might have needed to be relocated was able to be discerned.
6. In McDonald v Roads & Traffic Authority of NSW (2009) 169 LGERA 352; [2009] NSWLEC 105 (McDonald), at [107], Biscoe J described the word "relocation" in the then s 59(c) (now s 59(1)(c)) as having a wide meaning. Noting that the High Court decision he proposed to cite was determined under different resumption legislation, he nonetheless adopted and relied upon what Dixon J had said in Minister of State for Army v Parbury Henty & Co Pty Ltd (1945) 70 CLR 459 (Parbury), at 507, that disturbance costs include costs that a claimant: "reasonably incurs in removing his furniture and goods including tenants' fixtures and the expenses in setting up in new premises for the purposes of carrying on his business. Nor is it denied that the expenses may include the net cost of installing fixtures, both those removed and, where reasonably necessary, newly acquired fittings. The residual value which would remain to him must of course be taken into account."

The policy objectives of the Land Acquisition Act

1. Although Mr Tomasetti rejected the proposition that the Gertos entities sought to rely in any broad fashion upon the objectives of, and the policy embedded in, the Land Acquisition Act to support the approach he advocated on behalf the Gertos entities, it is appropriate, nonetheless, to respond briefly as to why such an approach would be invalid. There are two reasons.
2. The primary one is that, had the legislature intended that there be a special application of s 59(1)(d) to a class of investors, such as Mr Gertos (or Mr Royal), arising from the structuring of investment activities being through multiple special-purpose corporate entities when compared to holders of single, passive investments (as arose in Speter and other cases that have followed the line of reasoning adopted by Robson J in those proceedings), then the legislature would have expressly done so.
3. Second, to adopt such an approach would be to compensate Mr Gertos in circumstances where it is clear that the elements of s 59(1) are confined to assessing the compensation payable to "those persons" whose land has been compulsorily acquired. In each of these proceedings, the person is the relevant Gertos entity and not Mr Gertos personally. Taking each entity as being the compensable person, the reasoning of all the earlier decisions I have discussed in the preceding section of this judgment necessarily apply to the Gertos entities in each individual proceeding as providing a basis to refuse the stamp duty equivalent compensation payment sought by each of them.

The actual potential for "relocation" by the Gertos entities

1. Finally, it might be observed, semi-facetiously, the only physical manifestation of each of the Gertos entities would be the certificate of incorporation mandated by corporations' law to be displayed at the registered office of each of the entities. Whilst I have no direct evidence (via any extract from the ASIC database) for each of the entities, the reasonable inference to be drawn is that those registered offices are at the premises of Westwood Accountants, Mr Savell's accounting firm. Although Westwood Accountants had been located at one of the properties that had been compulsorily acquired, the firm had moved to a different location by the date of the compulsory acquisition. Thus, the only physical manifestation of each of the Gertos entities did not require to be relocated from any acquired property in any fashion.

Conclusions

1. Three significant conclusions arise as a result of my consideration of the issues requiring to be addressed in these proceedings. They can be set out succinctly: 1. First, the compensation to which Portman Securities is entitled for its equitable interest in 166-172 Parramatta Road, Annandale, is "Nil"; 2. Second, the necessary consequence following from my first finding is that TfNSW must succeed in its cross‑claim against Portman Securities in Matter No 207366 of 2018; and 3. Third, in each proceeding, the relevant Gertos entity is not entitled to any compensation for disturbance pursuant to s 59(1)(d) of the Land Acquisition Act.

Costs

1. As TfNSW has been entirely successful in its cross‑claim against Portman Securities, in Matter No 207366 of 2018, Portman Securities should be ordered to pay TfNSW's costs of the cross‑claim as agreed or assessed. Given the extremely limited participation by the Pamboris interests in the proceedings, this is the appropriate limit of those interests' cost exposure.
2. As to the position between each of the Gertos entities and TfNSW, two matters are to be observed impacting on the costs position between the relevant Gertos entity and TfNSW. For the two proceedings involving G Capital and Gertos Holdings, market value and all other statutory compensation issues other than the claim for disturbance pursuant to s 59(1)(d) of the Land Acquisition Act have been agreed with TfNSW.
3. In the third proceedings, Marsden Developments has succeeded in its substantive position that Portman Securities was not entitled to any market value compensation for 166-172 Parramatta Road, Annandale. On this basis, as I understand the position, market value and all other statutory compensation issues (other than the claim for disturbance pursuant to s 59(1)(d) of the Land Acquisition Act) concerning Marsden Developments have been agreed with TfNSW.
4. However, TfNSW has successfully resisted the claim of each Gertos entity for stamp duty equivalent compensation pursuant to s 59(1)(d) of the Land Acquisition Act with respect to the compulsory acquisition of the property acquired from that entity.
5. Having regard to these various outcomes between the Gertos entities and TfNSW in each of the proceedings, the appropriate position is that costs between each Gertos entity and TfNSW should be reserved unless agreement is reached between the relevant Gertos entity and TfNSW on costs in each proceeding.

Orders

1. The Gertos entities and TfNSW are directed to bring in settled orders in each proceeding (incorporating, in Matter No 207366 of 2018, the orders sought by TfNSW on its cross‑claim together with costs of the cross‑claim in TfNSW's favour against Portman Securities). If agreement is reached in each proceeding, a copy of each of the settled orders is to be provided to the legal representative of the Pamboris interests before being provided to me. If there are settled orders in each proceedings (agreed between the relevant Gertos entity and TfNSW) and these are provided electronically to my Associate by e-mail by the close of business on Friday 28 May 2021, I will make those orders in chambers.
2. If agreement between the relevant Gertos entity and TfNSW is not reached in any of the matters, that matter is to be listed before me in the Land Valuation and Compensation List on Friday 11 June 2021 for finalisation of the matter.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 May 2021