Jervis Bay Stockfeeds Pty Ltd v Transport for New South Wales (No 2)

Catchwords: NOTICE OF MOTION — Application to amend Class 3 compensation claim — application to rely on further report of expert valuer — challenge to admissibility of expert report — costs thrown away — leave granted

Legislation Cited: Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 55
Uniform Civil Procedure Rules (2005) (NSW), r 31.24

Cases Cited: Treyvaud v Transport for New South Wales; Jervis Bay Stockfeeds Pty Ltd v Transport for New South Wales [2025] NSWLEC 61

Category: Procedural rulings

Parties: Jervis Bay Stockfeeds Pty Ltd (Applicant)
Transport for New South Wales (Respondent)

Representation: Counsel:
T Hale SC (instructed by G Shapiro) (Applicant)
M Astill (instructed by A Cowley) (Respondent)
Solicitors:
Hones Lawyers (Applicant)
Maddocks Lawyers (Respondent)

File Number(s): 2023/00091290

Publication restriction: Nil

JUDGMENT

Introduction

1. Jervis Bay Stockfeeds Pty Ltd (Stockfeeds), the Applicant in these proceedings, has filed a notice of motion seeking the following orders:

“1 Leave be granted for the applicant to rely on the Expert Report of Owen Allsopp dated 20 January 2026 titled “Compensation Assessment”.

2 Leave be granted for Owen Allsopp to appear as expert witness in relation to valuation for the applicant in these proceedings under rr 31.19 and 31.20 of the Uniform Civil Procedure Rules 2005.

3 Leave be granted for the applicant to file its Further Amended Points of Claim in the form annexed to the affidavit of Gavin Shapiro sworn 27 January 2026.”

2. The proceedings arise out of the compulsory acquisition by the Respondent of Lots 24 and 25 of DP 1275933 (Acquired Land), which was once part of a larger parcel of land (Parent Parcel) that is owned by Darren and Kim Treyvaud (the Treyvauds). The compulsory acquisition has resulted in two ongoing appeals to this Court pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act) against the amount of compensation offered as a result of the acquisition.

3. The first proceeding is brought by the Treyvauds (Treyvaud proceedings), who are the dispossessed owners of the land. In this proceeding (Stockfeed****s proceedings), Stockfeeds seeks compensation under the Just Terms Act as a lessee of part of the Parent Parcel at the date of acquisition.

4. Order 3 in the motion is not opposed, subject to an order for costs thrown away. Orders 1 and 2 are opposed, on the basis that the expert report sought to be relied upon (Allsopp 2026 Report) is irrelevant and therefore inadmissible.

Background

5. This is not the first occasion that Stockfeeds has sought leave of the Court to rely on an expert report of Mr O Allsopp. On 17 June 2025, I delivered judgment on motions brought in both the Treyvaud and Stockfeeds proceedings where leave was sought to rely on an expert valuation report of Mr Allsopp dated 8 May 2025 (May 2025 Report): Treyvaud v Transport for New South Wales; Jervis Bay Stockfeeds Pty Ltd v Transport for New South Wales [2025] NSWLEC 61 (First Judgment).

6. In the Treyvaud proceedings, I granted leave to the Applicants to rely on Mr Allsopp’s May 2025 Report. However, I dismissed the motion filed by Stockfeeds, for the reason that there was, in my view, nothing in Mr Allsopp’s May 2025 Report that was evidence of an opinion relating to an interest in land held by it. There was instead only an opinion as to the business goodwill of Stockfeeds. There was therefore no expression of an opinion relating to compensation that might be claimable under the Just Terms Act: see First Judgment at [45]-[48].

7. The First Judgment has no doubt resulted in the current motion relating to the proposed Further Amended Points of Claim (FAPC), and the Allsopp 2026 Report.

Hearing and Evidence

8. At the hearing of the motion Stockfeeds was represented by Mr T. Hale SC, and the Respondent by Mr M. Astill of Counsel. Prior to the hearing, I was provided with written submissions from both parties.

9. Mr Hale SC read, without objection, an affidavit of Gavin Shapiro dated 27 January 2026. Mr Shapiro is the solicitor on record for Stockfeeds. Annexure A to Mr Shapiro’s affidavit is the proposed FAPC. In his affidavit, Mr Shapiro also refers to the Allsopp 2026 Report, which was filed in the Court registry on 22 January 2026.

10. For the Respondent, Mr Astill read an affidavit of Mr Patrick Ibbotson dated 19 February 2026. Mr Ibbotson is the solicitor on record for the Respondent. His affidavit primarily relates to matters concerning costs thrown away. It was objected to on the grounds of relevance, but I ruled that it was admissible, and that evidence is referred to later in this judgment.

Further Amended Points of Claim

11. Leave to rely on the proposed FAPC was not opposed by the Respondent, subject to an order for costs thrown away. Amongst other proposed amendments, at [26A], and [27]-[33] of the FAPC, a claim is made for compensation based on Stockfeeds’ leasehold interest in the land pursuant to s 55(a) (market value), (b) (special value), (c) (severance), and (f) (decrease in value of other land) of the Just Terms Act.

12. As the leave sought is unopposed, and as Stockfeeds now proposes to plead a claim for compensation for an interest in land related to the statutory entitlements to compensation under the Just Terms Act, I will grant the leave sought by it to file the FAPC. I address the costs order sought by the Respondent later in this judgment.

Submissions Regarding the Allsopp 2026 Report

13. The main contest between the parties is centred upon two complaints Mr Astill makes about the Allsopp 2026 Report. First, he submits that it retains the vice of Mr Allsopp’s May 2025 Report relating to Stockfeeds, in that it is a valuation of a business, not an interest in land.

14. Secondly, he submits that however the valuation opinion within the report should be characterised, it is in part based on the expert opinion of Stockfeeds’ accountant, Mr Corish. That opinion is in relation to Mr Corish’s determination of the “estimated future maintainable earnings of the business” of Stockfeeds, which is said to be $82,380: Annexure 6 to the Allsopp 2026 Report filed on 22 January 2026, at p 88 of 103. To this, Mr Corish has then applied a capitalisation rate to obtain a value of the capitalisation of the future maintainable earnings of Stockfeeds (or goodwill), which he estimates as $247,141. A potential problem identified by Mr Astill is that Mr Corish’s opinion is not given in an expert report that complies with the Uniform Civil Procedure Rules (2005) (UCPR) relating to expert evidence, including the Expert Code of Conduct.

15. Mr Hale SC submits that the Allsopp 2026 Report contains Mr Allsopp’s opinion concerning the market value of Stockfeeds’ relevant leasehold interest at the date of acquisition, and his opinion as to the compensation Stockfeeds is entitled to under the Just Terms Act. As to any reliance that Mr Allsopp has placed on an opinion of Mr Corish, Mr Hale SC submitted that Mr Allsopp could derive a figure of future maintainable earnings himself from Stockfeeds’ financial statements, which statements could be provided to the Respondent or obtained following the issue of a notice to produce or subpoena. Meaning no disrespect, it was not explored in the evidence whether Mr Allsopp has the specialised knowledge or training to admissibly give such opinion evidence.

16. Looking at things more closely, Mr Astill drew my attention to p 5 of the Allsopp 2026 Report, which contains the following:

“The market value of the interest of Jervis Bay Stock Feeds Pty Ltd in the parent parcel, but for the Public Purpose, on the 29 July 2022, comprises these elements:

(i) Business goodwill – intangible asset – which includes the exclusive right to occupy the parent parcels

and

(ii) Stock-in-Trade – owned and retained by Jervis Bay Stock Feeds Pty Ltd.

and

(iii) Equipment machinery, necessary for the ongoing business function – owned and retained by Jervis Bay Stock Feeds Pty Ltd.”

17. Mr Astill submits (ii) and (iii) are irrelevant, and (i) is a valuation of the business, not of an interest in land.

18. Pages 11 to 15 of the Allsopp 2026 Report contain Mr Allsopp’s analysis of relevant rental market evidence as at the date of acquisition. From this he has determined opinions as to the fair market rent, and then expressed opinions as to profit rent. While not necessarily agreeing with the amounts adopted, Mr Astill had no methodology complaint concerning what he described as this “before scenario” valuation.

19. Section 4 of the Allsopp 2026 Report is titled “the Business of Jervis Bay Stock Feeds Pty Ltd and Theoretical Business of a Purchaser of Lease/Sublease Interest”. This is, Mr Astill submits, akin to an “after scenario” valuation, and is where he submits Mr Allsopp has gone wrong, and outside the statutory provisions of the Just Terms Act.

20. What Mr Astill described as the “after scenario” valuation in the Allsopp 2026 Report is, he submits, erroneously based on the business value of Stockfeeds, and is unrelated to a valuation of a leasehold interest or any other interest in land. Mr Astill submits that this is made clear by all of section 4 of the Allsopp 2026 Report, including “4.2 The Business”, “4.3 EBITDA”, “4.4 Business Value”, and section 4.5 of the report which addresses “[t]he determination of market value of the Goodwill” of Stockfeeds. To this can be added the further issue of the accountant’s opinion evidence, which is an annexure to the Allsopp 2026 Report.

Consideration

21. There may well be substance to some of Mr Astill’s submissions. It may be that Mr Allsopp has adopted an erroneous or misconceived methodology. Further, if reliance is placed on the opinion of Stockfeeds’ accountant, if the Respondent was unable to challenge or test that opinion at final hearing, this might render it inadmissible upon objection, which might in turn render (crucial) parts of Mr Allsopp’s 2026 Report inadmissible.

22. In my view however, a motion like the present one is not necessarily the time to be making rulings on the admissibility of an expert report. That is more for a final hearing on objection.

23. While not embracing the value of fair market rent or profit rent assessed by Mr Allsopp in section 3 of the Allsopp 2026 Report, Mr Astill took no issue with the methodology used for the opinions expressed there. As to section 4 of the Allsopp 2026 Report, it may or may not be the case that Mr Allsopp has misconceived his approach in expressing an opinion on what Mr Astill describes as the “after scenario”. Nevertheless, it clearly represents Mr Allsopp’s opinions about Stockfeeds’ interest in land, and the compensation which he considers it is entitled to under the Just Terms Act. Whether that opinion can be maintained, or should be accepted, in my view is, in this case, properly a matter for the trial judge.

24. I therefore consider that Stockfeeds should be granted leave to seek to rely on the Allsopp 2026 Report at the hearing. In my view it is in the interests of justice that such leave be granted, and I believe this will (from now) facilitate the just, quick and cheap resolution of these proceedings. Whether all or part of the Allsopp 2026 Report is inadmissible for the reasons advanced by Mr Astill can be determined at the hearing.

Costs Thrown Away

25. These proceedings do not appear to have been conducted with the “quick” part of “just, quick and cheap” in mind. That statement is made good by the contents of Mr Ibbotson’s affidavit. In short:

(a) Stockfeeds was originally granted leave to rely on an expert valuation report of Mr S Sharman, who attended a s 34 conciliation conference; (b) Mr Sharman was replaced by Mr M Staniforth, and Mr Staniforth was nominated as Stockfeeds’ expert valuer in orders made by the Court on 29 July 2024; (c) Mr Staniforth produced an expert report, and then an amended report of 12 November 2024. On 14 November 2024, the Court made an order that Stockfeeds was granted leave to rely on this report, and for Mr Staniforth to confer and produce a joint valuation report with the Respondent’s expert valuer, Mr P Adlington; and (d) we then had the attempt by Stockfeeds to rely on the May 2025 report of Mr Allsopp, which has now been superseded by this application to rely on the Allsopp 2026 Report.

26. Mr Astill submits that the price of granting the orders sought in the motion is that Stockfeeds should pay the Respondent’s costs thrown away. While Mr Hale SC resisted such an order to some extent, and emphasised the nature of these proceedings as being an appeal by a dispossessed owner of an interest in land under the Just Terms Act, there was no disagreement with the proposition that work done by the Respondent’s legal representatives related to consideration of the reports served by both Mr Sharman and Mr Staniforth, will be costs thrown away. While I do not consider that the Respondent is entitled to costs thrown away for its attendances at prior conciliation conferences (and see First Judgment at [50]), in my view the Respondent is entitled to costs thrown away in relation to consideration of the prior reports of Mr Sharman and Mr Staniforth, and to the costs of this motion.

Future Conduct

27. This proceeding and the Treyvaud proceedings need to be made ready for final hearing as soon as possible. With no particular allocation of blame, the proceedings (including this motion) have dragged on too long. Below I have made orders to move the matter forward, and to have it placed in the List Judge’s list in the hope that both proceedings can be listed for final hearing at the next mention date, with the usual pre-hearing orders made.

Orders

1. The Applicant is granted leave to file its Further Amended Points of Claim in the form annexed to the affidavit of Gavin Shapiro dated 27 January 2026.
2. The Respondent is to file and serve its Further Amended Points of Defence on or before 27 March 2026.
3. The Applicant is granted leave to seek to rely at the hearing on the report of Mr O Allsopp dated 20 January 2026, that was filed with the Court on 22 January 2026.
4. Mr Allsopp and Mr Adlington are to confer pursuant to UCPR r 31.24 in relation to valuation issues, and prepare a joint expert report which is to be filed and served by 17 April 2026.
5. The Applicant is to pay the Respondent’s costs of this motion, and the costs thrown away as agreed or assessed in relation to any consideration of the reports of Mr Sharman and Mr Staniforth.
6. This matter, and case number 2023/00091258 (Darren Treyvaud and Kim Treyvaud v Transport for NSW) are both listed before the List Judge on 24 April 2026, in the expectation the parties will then be ready to obtain a hearing date for both matters, and will have agreed the usual pre-hearing orders.
7. Liberty to restore on 48 hours’ notice.

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