Land and Environment Court (NSW)|1997-04-21|Before: Bignold J, Applicant Mr P, Mr P, Applicant Mervyn J

The Applicant's claim (Exhibit U) for compensation was completed on the prescribed form under the Just Terms Act. In it, she claimed as the registered proprietor of the acquired land and claimed an amount of $5,703,950.50. Her completed form indicated the following "other persons that may have an interest in the land":

In her testimony, it became apparent that the claimant did not own the acquired land beneficially, but held the land on trust for her father Mr Edward Pryor, who in turn declared that he held the land on trust for his family - his wife, his two daughters, Ms Radnedge and the claimant, and his son. The Applicant became the registered proprietor of the compulsorily acquired land in November 1989 by transfer from her mother Joan Pryor for the consideration of $3,000.

Mr Pryor, through his companies, acquired a large number of land holdings in the Killingworth village in 1979, at one stage owning or controlling 190 lots out of the entire Killingworth estate containing 335 lots. Mr Pryor's involvement with land holding and development in the Killingworth village has been a "roller-coaster" experience. He substantially developed and sold the entire residential estate north of the Broadway and a large number of lots south of the Broadway fronting The Trongate and Throckmorton Road. However, he experienced considerable financial difficulties and lost his interest in many lots south of the Broadway by virtue of the forced sale by a mortgagee in possession and by virtue of sales by the Respondent for unpaid rates. He has twice gone into bankruptcy. In 1979, he was convicted of charges under the Trade Practices Act for misleading advertising in respect of lots for sale at Killingworth (see Given v. Pryor (1979) 24ALR 442) and in mid 1995, while the present proceedings were part heard, he was convicted of fraudulent land dealings in connection with the Killingworth land and was sentenced to two years imprisonment.

The hearing of the present proceedings, principally because of Mr Pryor being charged and convicted for land fraud, was the subject of extensive adjournments, having commenced in February 1995 (when the hearing occupied a few days) resumed in November 1995 (when the hearing occupied one week) and being completed in June 1996.

It was because of Mr Pryor's testimony in November 1995 that during the adjournment of the hearing between November 1995 and June 1996, the Respondent's Solicitor wrote to the Applicant's Solicitor, seeking the Applicant's knowledge by way of statutory declaration, of persons having an interest in the compulsorily acquired land at the date of acquisition. No replies were received to this request but it was when the hearing resumed in June 1996 with Mr Pryor under re-examination, that a list of persons having an interest in the compulsorily acquired land was tendered (Exhibit 13). The list revealed the following interests:

HSBP lane between M5 and M9 sold to HSBP Value $5,000 2 sections

Park St between Georgie St and Throckmorton St half to three quarter acres of road sold to E Pryor - contract of sale in evidence at time of acquisition of Lot 3 Road and lanes

Milliways Pty Limited lane rear of N8 Stevenson St Current valuation

Mr Prentice - cannot recall this name - but a lane was sold back in early 1980 to lane between P3 and P15 for $200. He also owns Lots P3 and P15.

Lane between J5 and J9 sold one-third road on lane to present land occupier of J5.

Erin Radnedge is EA Pryor's daughter and holds a mortgage on Lot 3 Roads and lanes

Joan Dalglish - Pryor's wife owns lane between L16 and L4.

In his final address, Senior Counsel for the Respondent submitted that the Applicant should be non-suited on account of the entirely unsatisfactory manner in which her claim for compensation had been made in respect of the non-disclosure of interests in the compulsorily acquired land held by other persons. Reliance was particularly placed upon the provisions of s.53 of the Just Terms Act and the risk which it was submitted that the Respondent would inevitably encounter, if compensation were paid to the Applicant in the face of the several other interests in the land that had only come to be revealed in the course of the proceedings.

At one stage, Senior Counsel for the Respondent had submitted that the Applicant should be non-suited because she did not have any relevant "interest" in the compulsorily acquired land. However, I understood him to withdraw this submission because clearly, as the registered proprietor of the land, albeit without the beneficial interest in the land (which beneficial interest is held upon the basis of an implied or constructive trust) the Applicant has an "interest" in the land within the meaning of the Just Terms Act.

In my judgment, the non-suit submission cannot be sustained. In so concluding, I would accept that Respondent could not, in the light of the evidence given at the hearing concerning other interests held in the compulsorily acquired land, obtain the benefit of s.53 of the Just Terms Act.

However, it does not follow from this conclusion that the Respondent would be at risk of paying additional compensation if compensation is paid to the Applicant. Nor is the Respondent at risk of facing double compensation because in these proceedings the precise nature and value of these other interests have not been established. In this respect, it should be noted that of the nine interests disclosed in Exhibit 13, all but two are interests only in respect of small sections of the lanes. Of the two other interests, Mr Pryor claims an interest in respect of a small section of Park Street that has not been constructed or used as a road and this section of road was separately valued in the course of the proceedings. The only other stated interest is that of an unregistered mortgagee, Ms Radnedge, another of Mr Pryor's daughters, and s.65 of the Just Terms Act deals specifically with the effect of compulsory acquisition on a mortgage interest.

In rejecting the Respondent's non-suit submission, it is clear in my judgment, that the Applicant as registered proprietor of the compulsorily acquired land:-

(i) has an "interest" in that land (sec. 4(1) of the Just Terms Act for the definition of "interest");

(ii) is entitled to be paid compensation (s.37 of the Just Terms Act);

(iii) claimed compensation by lodging a claim in accordance with the Just Terms Act (s.39); and

(iv) in that claim disclosed, her awareness of other persons having an interest in the land (s.40).

In respect of the foregoing matters, it is only necessary to note the obligations of the Respondent under the Just Terms Act. Section 42(2) requires the Respondent to give a compensation notice to "all former owners of the land who, immediately before the acquisition:

(b) were in lawful occupation of the land (but only if the authority of the State considers they are entitled to compensation); or

(c) had, to the actual knowledge of the authority of the State, an interest in the land which entitles them to compensation."

It is to be noted that the Applicant is the only person who had a "registered interest" (see s.4(1) for the definition of this term) in the land. Section 52 provides that payments of compensation are a good and valid discharge and "the authority is not bound to see to the application of any money paid or to the performance of any trust". Section 53 provides protection to the authority paying compensation in circumstances where it does not know of the existence of other interests in the land. Section 46 enables a person who has not been given a compensation notice to make a claim for compensation.

For all the foregoing reasons, I hold that the Applicant who has an interest in the land and has claimed compensation therefor, is entitled to receive compensation in accordance with the Just Terms Act. In these circumstances, I reject the Respondent's non-suit submission also being satisfied that the proceedings are properly constituted, it being noted that it is only a person who has received a compensation notice who is entitled to object to the amount of compensation and thereby to invoke this Court's jurisdiction conferred by s.66 of the Just Terms Act. As I have earlier held, the Applicant's interest is that of registered proprietor of the compulsorily acquired land holding the beneficial interest in the land for Mr Pryor and his family members and the interest of the Applicant is subject to the other interests identified in Exhibit 13.

Since the precise nature and value of these other interests have not been examined in these proceedings (except for the interest claimed by Mr Pryor in respect of a small section of Park Street which land has been separately valued in these proceedings, not in recognition of his claimed interest, but as the only value in the entire road system acknowledged by the Respondent's witnesses) I do not propose to make any determination in respect of them.

However, in deference to the Respondent's concern that by paying any compensation to the Applicant it may be exposed to some risk of further compensation claims, I propose to make appropriate orders to properly protect the Respondent from this avoidable risk. In so proceeding, I propose to determine the appropriate compensation to be paid to the Applicant as the sole claimant, in respect of her interest as the former registered proprietor of the compulsorily acquired land. This determination will be in respect of the full fee simple value of the land, but be subject to any of the other interests in the land, as disclosed in these proceedings, being interests that have not been the subject to any separate claims for compensation. My approach is entirely consistent with the approach adopted by all four valuers who gave evidence in the proceedings, and it is those valuations that I must now consider.

G. ADJUDICATION ON THE COUNCIL'S CLAIM TO HAVE THE COURT 'S ORDERS SET ASIDE.

I shall consider separately the several grounds relied upon by the Council in support of its amended Motion except where the grounds overlap or are otherwise related (in which case they shall be considered collectively).

Ground (i): Non-compliance with ss39 & 40 of the Just Terms Act

Sections 39 and 40 of the Just Terms Act provide as follows:

(1) A person who wishes to claim compensation under this Part must lodge a claim in accordance with this section with the authority of the State that is acquiring the land concerned.

(2) A claim for compensation must be in the form prescribed by the regulations or (if no such form is prescribed) in the form approved by the Minister.

(3) The claim form may require information to be verified by statutory declaration.

(4) A claim for compensation may be withdrawn by the claimant.

Owner claiming compensation must disclose particulars of other persons with an interest in the land.

(1) A person who claims compensation under this Part must state, in the claim form, whether the person is aware of any other person who has an interest in the land and who may be entitled to compensation.

(2) If the person is aware of such an interest, the claim must contain such particulars of the interest as are required by the requisite claim form.

The contents of forms (including a claim form) approved by the Minister were published in Government Gazette No.75 of 26 June 1992.

According to the findings recorded at p12 of my resons for judgment delivered on 2 December 1996, the Applicant as the registered proprietor of the compulsorily acquired land:

(iii.) claimed compensation by lodging a claim in accordance with the Just Terms Act (s39); and

(iv.) in that claim disclosed, her awareness of other persons having an interest in the land (s40).

These findings are relevant in two vital respects to a consideration of the Council's argument that asserts a non-compliance with s40 based upon the fact that in the course of the Court hearing in June 1996 (nearly 3 years after the Applicant had lodged her claim with the Council) it was revealed in the Applicant's case that there were some other interests in the compulsorily acquired land (as revealed in Exhibit 13) in addition to the other interests that had been disclosed by the Applicant in the claim form (Exhibit U).

Firstly, the findings are relevant in rebuttal of the Council's assertion that there has been a relevant non-compliance. The fact that it is revealed in the Applicant's case in these proceedings that there are other interests in the compulsorily acquired land additional to the other interests disclosed by the Applicant in lodging her claim form nearly three years earlier does not establish that there has been any relevant non-compliance with s40. The obligation imposed by s40 upon a claimant is to disclose other interests in the compulsorily acquired land of which the claimant "is aware". An awareness of facts 3 years after the date relevant for the purposes of s40 does not prove an awareness of the same facts at the earlier time. I accept that the "awareness" disclosed in the course of the Court proceedings may be relevant to the fact of awareness at the anterior time, but in the absence of the matter being put directly to the Applicant in the course of the evidence I would not be prepared to find on the basis of Exhibit 13 (which came into existence at the trial) any relevant non-compliance with s40 in the present case.

Secondly, the findings are relevant to the legal consequences of there being a relevant non-compliance with s40 assuming that such a finding were made in favour of the Council because they demonstrate a structure, content and purpose of the relevant provisions of the Just Terms Act, which decisively militate against any acceptance of the Council's argument that non-compliance with s40 ipso facto invalidates the claim of a person in the position of the present Applicant, whose interest in the compulsorily acquired land is that of the registered proprietor of such land, and in that capacity:-

(i.) has received Pre-acquisition Notice pursuant to s11 of the Just Terms Act of the intended compulsory acquisition;

(ii.) has lodged a claim form in accordance with s39 of the Just Terms Act;

(iii.) has received a Compensation Notice pursuant to s42 of the Just Terms Act;

(iv.) has lodged an objection pursuant to s66 of the Just Terms Act to the amount of compensation offered in the Compensation Notice; and

(v.) has prosecuted that objection in court proceedings.

For all the foregoing reasons I would hold that the Council has not established any relevant non-compliance with s40 of the Just Terms Act but that even if a relevant non-compliance had been established based upon the discrepancy between the contents of Exhibits U and 13 in respect of other interests in the compulsorily acquired land held by persons other than the Applicant, such non-compliance would not thereby invalidate:-

(i.) the Applicant's entitlement to compensation under the Just Terms Act (vide ss3(b); 37 and 54);

(ii.) the Applicant's claim pursuant to s39(1) of the Just Terms Act to that compensation;

(iii.) the Applicant's objection, pursuant to s66(1) of the Just Terms Act, to this Court, against the amount of compensation offered by the Council; and

(iv.) this Court's jurisdiction under s66(2) of the Just Terms Act to "hear and dispose of the person's claim for compensation".

Although I have extensively considered the Council's submission it would just as effectively be disposed of by rejecting it outright simply on the basis of the operation of s66 of the Just Terms Act which, in my judgment, on the facts of the present case, unquestionably conferred:

(i.) a right of objection upon the Applicant (subsection (1)) which right was duly exercised by the commencement of the present proceedings; and

(ii.) jurisdiction upon this Court to hear and dispose of the Applicant's claim for Compensation (subsection(2)) which jurisdiction was exercised by the award in my judgment delivered on 2 December 1996 of compensation to the Applicant.

Grounds (ii), (iii), (iv) and (vii): The legal effect of the existence of interests in the compulsorily acquired land other than the Applicant's interest.

The Council's argument advances four legal propositions based upon the existence of other interests in the compulsorily acquired land:

(i.) Compensation payable to the Applicant must be confined to her interest in the compulsorily acquired land and cannot include any element of compensation that is referable to other persons' interests in the compulsorily acquired land;

(ii.) the Applicant was not entitled to the awarded compensation in respect of the full value of the estate in fee simple in possession because she was held not to have the beneficial interest in that fee simple and because other persons had other interests in the compulsorily acquired land;

(iii.) instead of awarding compensation to the Applicant in respect of the full fee simple value the Court should have separately valued the other known interests in the compulsorily acquired land and deducted the aggregated values from the compensation payable to the Applicant; and

(iv.) accordingly the Court had no jurisdiction to order the payment to the Applicant of compensation reflecting the full fee simple value of the compulsorily acquired land subject to her providing to the Council satisfactory releases and discharges from all persons (other than the Applicant) claiming an interest in the compulsorily acquired land.

In my judgment none of these propositions is sustainable or has been sustained in these proceedings. In so concluding I readily accept the cardinal principle that undergirds each of the Council's propositions, namely that the Just Terms Act provides an entitlement to just compensation to each claimant having an interest in the compulsorily acquired land to the extent of that interest.

I also readily accept the corollary cardinal principle established by the High Court's decision in Rosenbaum v The Minister [1965] HCA 65; (1965) 114 CLR 424 well before the enactment of the Just Terms Act (but recognised and adopted by that Act) that the Court's function under s66(2) of the Just Terms Act, to hear and dispose of an objection to the amount of compensation offered to a claimant, is to determine the value of the particular interest in the compulsorily acquired land of that claimant.

In my opinion neither of these cardinal principles is infringed by my judgment delivered on 2 December 1996. Indeed the judgment faithfully follows and adopts those prinicples.

The compensation that was awarded to the Applicant in that judgment was deliberately determined to reflect her proven interest as the registered proprietor of the compulsorily acquired land. That interest is for an estate in fee simple in possession. The fact that I held that the Applicant was not beneficially entitled to that interest did not render, as either inappropriate or inapt, the basis for my determination of compensation, namely the estate in fee simple in possession.

In so concluding it is to be recalled, as was stated at p14 in my original judgment, that the Applicant was the sole claimant for compensation under the Just Terms Act in respect of the compulsorily acquired land. Accordingly there was in the circumstances of this case no need to differentiate in terms of the value of the compulsorily acquired land between the Applicant's non-beneficial fee simple interest and the beneficial fee simple interest. Moreover s52 of the Just Terms Act expressly provides that in paying compensation an authority of the State (in this case, the Council), "is not bound to see to the application of any money paid or to the performance of any trust".

One of the other interests in the compulsorily acquired land disclosed by the Applicant was an unregistered mortgage in favour of Ms Erin Radnedge (apparently the Applicant's sister). No details of this mortgage interest were given in the evidence. As was pointed out at p11 of my judgment s65 of the Just Terms Act deals specifically with the effect on a mortgage interest of a compulsory acquisition of land. It provides as follows:

(a) land is compulsorily acquired under this Act; and

then, as a general rule, the compensation to which the owner of the land will be entitled in respect of the acquisition is to be determined as if the land had not been subject to the mortgage.

(2) However, if compensation is payable under this Part to a mortgagee in respect of a mortgage interest, the compensation payable to the owner of the land is to be reduced by so much of the compensation as is payable to the mortgage.

Since Ms Radnedge had made no claim for compensation in respect of the compulsorily acquired land s65(1) justified in the present case the determination of compensation "as if the land had not been subject to the mortgage".

Apart from Ms Radnedge's mortgage interest and Mr Pryor's claimed interest in a small unmade section of Park Street (in respect of which interest there was a separate determination of value in the circumstances set out on p11 and p14 of my original judgement) all other interests disclosed in the proceedings relate to small sections of laneways. Since the value of the entire laneways was determined in the sum of $25,000 in my original judgment reflecting a "nominal value" (see p34) it can be at once appreciated how obviously insignificant are these "other interests" in the compulsorily acquired land. Indeed so insignificant that the Council did not apparently give any Compensation Notice to any of the interest holders disclosed in the Applicant's claim (Exhibit U) as it was required to do by s42(2)(c) of the Just Terms Act!

Although these disclosed interests in small sections of the laneways were not valued in the proceedings (see my original judgment p14) it might be legitimately inferred from the following facts:-

(i.) that the value determined in respect of the entire laneway network in the compulsorily acquired land totalling 2.2 hectares was only $25,000; and

(ii.) that the area of laneways covered by the disclosed "other interests" in comparison with the totality of the area of the laneways is significantly less than 5% -

that the total value of the so called "other interests" in the compulsorily acquired land would be so insignificant as to border on the de minimis.

Thus it may be said, with the utmost respect to the Council's case, that these matters of principle it has sought to raise in proof of its claim that the Court's Orders were made beyond jurisdiction, apply to facts almost too insignificant to be noticed or to be taken seriously.

Not only are these other interests in small sections of the laneways within the compulsorily acquired land intrinsically of little or no value, but their very existence and nature have not been established in the proceedings save for what is disclosed by the Applicant - originally in her claim and subsequently in the course of Mr Pryor's evidence at the trial. At its highest, the very existence of these other interests (without knowing anything of their precise nature or detail), depends upon the Applicant's admissions against interest.

In the circumstances the cogency of the Council's submission that it was the Court's duty to ascertain the nature of these other interests and to value them dissipates in the light of the fact that the Council adduced not a jot or tittle of valuation evidence concerning the value of these other interests.

Moreover, the Council's submission that it was the duty of the Court to determine the nature of these other interests and their value to the persons possessing these interests, which persons were not parties to the present proceedings, is itself misconceived being contrary to both established authority and principle.

It was long established doctrine that the land compensation court (established by the Public Works Acts) in the exercise of its jurisdiction to determine claims for compensation in consequence of resumption of lands was not concerned with questions to title: see Robert Reid and Co. v Minister for Public Works (1902) 2 SR (NSW) 405; Brown and Brown Ltd. V Municipal Council of Sydney (1925) 4 LVR 27 and Rosenbaum v The Minister [1965] HCA 65; (1965) 114 CLR 424.

In Rosenbaum, Kitto J (at 428/429) described the essence of an action for compensation in consequence of the resumption of land as follows:

"The appellant's declaration in the action contained an allegation that she was at all material times seised of an estate in fee simple in the resumed land; but this was an immaterial allegation because in an action for compensation there is no issue to title: Robert Reid and Co. v Minister for Public Works (1902) 2 SR (NSW) 405. The verdict determines the amount of the compensation appropriate to the estate or interest which the plaintiff has claimed and, by disclosing a prima facie title, has got the constructing authority to value; but no judgment for payment of that sum can be entered : see Compensation for Resumption Rules, r 4 and the form of judgment in the schedule. This is because the plaintiff's right to payment remains conditional upon his making out a title to that estate or interest to the satisfaction of the constructing authority (s126); if he neglects or fails to do so, the compensation may be deposited with the Master in Equity to the credit of the parties interested in the land and becomes subject to the control and disposition of the court (s61)."

There is nothing in the Just Terms Act (either in its express provisions or its statutory object or purpose) which would deny the continuing application of this principle to the exercise by the Court of its statutory function under s66 of the Act to determine a claim for compensation. However as was pointed out in Robinson v Department of Main Roads (1987) 64 LGRA 17 at 80 this Court, in its capacity as the land compensation court, is given by s25 of the Land and Environment Court Act 1979 (LEC Act) an extended jurisdiction to determine questions of title and interest in resumed lands. Section 25 of the LEC Act provides as follows:

(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 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.

However, that extended jurisdiction must be properly invoked and it has not been so invoked in the present proceedings. In particular no application has been made pursuant to s25(2) for the joinder of any persons possessing the other interests in the compulsorily acquired land.

Section 75 of the Just Terms Act amended certain provisions of the LEC Act including ss24 and 25, but the amendment to s25 was merely to omit subsection(3) as a consequence of the repeal by the Just Terms Act of many of the provisions of the Public Works Act 1912. In other respects s25 of the LEC Act remained in tact with the consequence that the jurisdiction conferred upon the Court by s66 of the Just Terms Act (which is to similar effect to s24(1) of the LEC Act which subsection was substituted by the Just Terms Act) is a jurisdiction to determine claims to compensation without determining issues of title (Rosenbaum) except in cases which properly invoke the Court's extended jurisdiction conferred by s25 of the LEC Act to determine the nature of estates or interests in the compulsorily acquired lands possessed by the claimant "or any other person who claims to have had or who may have had an interest' in the compulsorily acquired lands.

For the foregoing reasons and since the Court's jurisdiction conferred by s25(2) of the LEC Act has not been invoked in these proceedings, the Council's argument that it was the duty of the Court to determine the nature of, and the value of, other interests in the compulsorily acquired land must be rejected.

Nor does the Council's argument that it was the duty of the Court to value the "other interests" in the compulsorily acquired land gain any support from the decision in Rosenbaum where the claimant for compensation was the owner of the freehold, which at the date of resumption, was the subject of tenancies under the Landlord and Tenant (Amendment) Act 1948. Kitto J at 428 said:

"Plainly enough, this was a claim to be entitled to compensation for having been dispossessed of an estate in fee simple in reversion upon the tenancies."

It was in those circumstances that the High Court held that the Compensation Court has not erred (i) in determining compensation in the respect of the claimant's estate in fee simple in reversion upon the protected tenancies; (ii) in rejecting as inadmissible evidence of the Valuer General's statutory valuation showing the improved value of the resumed land on the basis of the fee simple estate in possession; and (iii) in accepting the only available evidence of the value of the reversionary fee simple estate. Accordingly Rosenbaum provides no support for the Council's argument that in the present proceedings compensation for the Applicant's fee simple interest in the compulsorily acquired land should have had deducted from it the aggregated values of the "other interests" in the land.

Moreover, as I have already noted, the Court's extended jurisdiction to determine such matters was not invoked in the proceedings and there was no valuation evidence adduced in the proceedings concerning the values of the other interests. Moreover as was stated at p14 of my original judgment, in determining compensation to be paid to the Applicant, as the sole claimant for compensation, in respect of her interest as the former registered proprietor of the compulsorily acquired land, on the basis of the full fee simple value of that land, I was adopting a valuation approach that was "entirely consistent with the approach adopted by all four valuers who gave evidence in the proceedings".

In his written submissions, Senior Counsel for the Council sought to further extend the scope of "other interests" in the compulsorily acquired land by drawing attention to Exhibit TT being the contract for sale dated 1 September 1988 between Mrs Joan Dalglish, the then owner of the compulsorily acquired land (the Applicant's mother) and Berkshire Lodge, Berkshire Park Pty Limited (a company apparently owned and controlled by Mr Pryor, the Applicant's father). There was no evidence that this contract was ever completed and it is not in doubt that no transfer of the land was ever registered.

It is at once to be noted that this contract for sale predated by more than 14 months the transfer of the compulsorily acquired land to the Applicant whereby she became the registered proprietor of that land.

In the circumstances the Council's present reference to the earlier, uncompleted contract, must be seen as serving no purpose. In all events the Council's submission is entirely excluded by my finding in the original judgment that the Applicant was the registered proprietor of the compulsorily acquired land at the date of compulsory acquisition.

Finally this brings me to the question of the legal competency of Order 4 insofar as it conditions the payment to the Applicant of the amount of compensation awarded to her, upon her providing the Council with appropriate discharges and releases from all persons (other than the Applicant) claiming an interest in the compulsorily acquired land.

The Council's submission concerning the imposition of such condition on the orders for the payment to the Applicant of the amount of compensation awarded to her, is somewhat bewildering, since as appears at p14 of my judgment the condition was imposed "in deference to the Respondent's concern that by paying any compensation to the Applicant it may be at some risk of further compensation claims" even though at p11 I had dismissed any risk of liability to pay double compensation.

Nonetheless the Council now submits that Order 4 was made without jurisdiction.

I reject the submission. Section 68(1) of the Just Terms Act requires payment of compensation in respect of claims before this Court to be made, in the absence of agreement between the parties, "in accordance with the decision of the Court". Order 4 of the Court's Orders stipulates the amount of compensation to be paid to the Applicant and the condition precedent for such payment to be made. There is no doubt, in my opinion, that the Court had the power to impose the condition which was imposed upon the Order for the payment of compensation.

The condition obliged the Applicant to obtain the requisite releases and discharges from the other persons claiming an interest in the compulsorily acquired land being the persons whom the Applicant in the proceedings had disclosed as having some interest in the land.

Prior to the commencement of the Just Terms Act the verdict of a compensation court determining the amount of compensation to be paid to the claimant was not automatically translated into a judgment for the payment of that sum, because as Kitto J pointed out in Rosenbaum at 428/429:

"The plaintiff's right to payment remains conditional upon his making out a title to that estate or interest to the satisfaction of the Constructing Authority..."

His Honour, at that stage in his judgment, cites s126 of the Public Works Act 1912.

In Harvey v Burwood Municipal Council (1993) 83 LGERA 102, a case involving the compensation provisions of the Public Works Act 1912, I held that the Court had the power to order payment to the applicant of the compensation which the Court had determined in the proceedings. At p106 I held, obiter, that my conclusions "likewise apply in respect of claims made under that Act (ie the Just Terms Act) s68(1) of which requires payment to be made "in accordance with the decision of the Courts" ". Those comments apply to the present case.

The Just Terms Act does not contain any counterpart to the provisions of the Public Works Act relating to proof of title and payment into Court in default of proof etc. that were referred to in the judgment of Kitto J in Rosenbaum, in the passage I have recited. This fact highlights the importance of the Court's power under s68(1) of the Just Terms Act to order the payment of compensation, and necessarily implies the power to impose appropriate conditions upon any such order for payment. (The Court's power under s68(1) is of course amplified and augmented by the extended jurisdiction conferred upon the Court by s25(1) of the LEC Act). The power conferred upon the Court by s68(1) would unquestionably include the power to condition an order for the payment of compensation to the provision of a duly executed deed of release and indemnity and of the production of any relevant documents of title: cf. s44(2) and s45(3) of the Just Terms Act dealing respectively with the acceptance and deemed acceptance by a claimant of the amount of compensation offered.

For similar reasons, I have no doubt that the condition imposed on the order for payment in the present case is a valid exercise of the power conferred upon the Court by s68(1) of the Just Terms Act.

It follows that Order 4 of the Court's Orders was made within the Court's jurisdiction.

For all the foregoing reasons I must reject the Council's arguments based upon the existence of "other interests" in the compulsorily acquired land.

Just as the Council's "non-suit" submission failed at the trial principally on account of the indisputable fact that the Applicant was the registered proprietor of the compulsorily acquired land at the date of compulsory acquisition, so its present "no jurisdiction" submission fails principally on account of this Court's indisputable jurisdiction conferred by s66 of the Just Terms Act to determine the Applicant's compensation claim, as the sole claimant under that Act.

In my judgment the Council's argument is unsustainable. Orders 2 and 4 of the Court's Orders are not, and do not purport to be, an interim award of compensation.

Even if they were held to operate as an interim award the power to so order would be available to the Court for reasons substantially similar to those that led me to conclude in Harvey that the Court had the power to order the payment of compensation it had determined in the proceedings. In this respect the absence of express power such as is conferred by Division 2 of Part V of the Supreme Court Act 1970, is in my judgment of no consequence.

Ground (vi): No power to award compensation other than in respect of "market value" of the compulsorily acquired land.

In my judgment the Council's argument is unsustainable principally because it misunderstands the manner in which compensation was determined in my earlier judgment in respect of the "market value" (vide s56 of the Just Terms Act) of the compulsorily acquired land. The amount of compensation in the sum of $334,600 as determined in Order 2 reflects the "market value" of the compulsorily acquired land. Likewise the potential for additional compensation in respect of the construction of roadworks on the compulsorily acquired land that is recognised by Orders 2,3 and 4 reflects the "market value" of the land. As my earlier judgment makes clear the assessment of market value proceeded in 2 discrete stages - the initial stage resulting in an award of compensation in the sum of $334,600 was to arrive at an en globo value of the compulsorily acquired land and the second stage (which has not yet been undertaken, and which was reserved in my original judgment), looks to the question whether there is an additional value in the land by virtue of the road construction works.

However both stages in the assessment of compensation are based upon the "market value" of the compulsorily acquired land and there is no suggestion of any other basis.

For all the foregoing reasons the Council has failed to establish that the Court Orders were made without jurisdiction. Accordingly the Council's amended Notice of Motion must be dismissed with costs and I so order.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 35 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF HIS HONOUR MR JUSTICE N R BIGNOLD.

Acquisition (Just Terms Compensation) Act 1991

Environment Court Act 1979

Tenant (Amendment) Act 1948

SHANNON LUKA v. LAKE MACQUAIRE CITY COUNCIL No. 30124 of 1994 [1997] NSWLEC 47 (21 April 1997)

The hearing of the Council's amended Motion has proceeded upon the uncontested basis that the Court has the jurisdiction to grant ex debito justitiae the relief claimed, if it is established that the Court's Orders were made without jurisdiction. In so proceeding I am not acting upon any notion of (i) assumed jurisdiction of the Court or (ii) jurisdiction by consent, since neither of these grounds would provide a legitimate source of jurisdiction: Coombwood Pty Ltd v Baulkham Hills Shire Council (1995) 86 LGERA 319. Rather I proceed on the basis that the requisite jurisdiction to set aside the Court's Orders is the inherent jurisdiction possessed by the Court, as a superior court, to correct "irregularities (in its orders) so fundamental as to create an unconditional right, ex debito justitiae, to have the judgment set aside..." per Rich J in Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 591 whose judgment was cited with approval by Gibbs J (as he then was) in Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 at 7 & 8.

SHANNON LUKA v. LAKE MACQUAIRE CITY COUNCIL No. 30124 of 1994 [1997] NSWLEC 47 (21 April 1997)

At a glance

Court

Decision date

Before

Source

Judgment (122 paragraphs)

Legislation Cited (5)

Cases Cited (8)

SHANNON LUKA v. LAKE MACQUAIRE CITY COUNCIL No. 30124 of 1994 [1997] NSWLEC 47 (21 April 1997)