Smith v Minister for Home and Territories [1920] HCA 1

[78]

the value of, the land, and that, as the goodwill was attached the land, the value of the goodwill on 8th October 1908, date fixed by the Act there in question as that in respect of which the value of the land should be assessed, not the value in March 916, the date on which the land was acquired by the Commonwealth, to be the value considered in assessing compensation. Under e Act in question in that case the owner of lands compulsorily juired was protected to the extent of entitling him to the value 'his interest in permanent improvements on the land at the date 'the acquisition. No such proviso appears in the Kalgoorlie to Augusta Railway Act 1911, In Spencer v. The Commonwealth (2) e statute in question fixed Ist January preceding the acquisition is the date on which the value was to be ascertained. Isaacs J., in that case (3), said : - All circumstances subsequently " (to Ist juary 1905) " arising are to beignored. Whether the land becomes e valuable or less valuable afterwards is immaterial. Its value fixed by statute as on that day. Prosperity unexpected, or depression which no man would ever have anticipated, if happening er the date named, must be alike disregarded. The facts existing Ist January 1905 are the only relevant facts." All the members the Court in that case assessed the value as on Ist January 1905, not at the date of acquisition. _ It appears to me that the value in this case is not to be the value the land at the date of the acquisition: sec. 19 was passed to ent that. It also appears to me equally impossible to assess the value of the land on 19th September 1911 on some fact about it not ined until 1915, and then only by increased expenditure for purpose of the railway. Under sec. 29 of the Commonwealth Acquisition Act 1906 I am expressly required to assess the lue without any reference to the increase in value arising from the oposal to carry out the public purpose. I hold that I am required t this submission and the Kalgoorlie to Port Augusta Railway

[107]

should be the price that a willing purchaser would at the date in question have had to pay to a vendor not unwilling, but not anxious, to sell. Griffith C.J., in his judgment in the case, said (2) : - "It may be that the land is fit for many purposes, and will in all proba- : bility be soon required for some of them, but there may be no one actually willing at the moment to buy it at any price. Still it does not follow that the land has no value. . . . The necessary mental process is to put yourself as far as possible in the position of persons conversant with the subject at the relevant time, and from that point of view to ascertain what, according to the then current opinion of land values, a purchaser would have had to offer for the land to induce such a willing vendor to sell it, or, in other words, to inquire at what point a desirous purchaser and a not unwilling vendor would come together." Barton J. said (3): " A claimant is entitled to have for his land what it is worth to a man of ordinary prudence and foresight, not holding his land for merely speculative purposes, nor, on the other hand, anxious to sell for any compelling or private reason, but willing to sell as a business man would be | to another such person, both of them alike uninfluenced by any consideration of sentiment or need." Isaacs J. (4) refers to the value as the fair price of the land which a hypothetical prudent purchaser would entertain if he desired to purchase it for the most advantageous purpose for which it was adapted, and says : - " To arrive at the value of the land at that date, we have, as I conceive, to suppose it sold then, not by means of a forced sale, but by volun- tary bargaining between the plaintiff and a purchaser, willing to trade, but neither of them so anxious to do so that he would over- look any ordinary business consideration. We must further suppose both to be perfectly acquainted with the land, and cognizant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the

[146]

n Harding v. Board of Land and Works (1) it was held that the H. ©. or A. 'enhancement in value" (under the Victorian Act in question) mR ludes that which arises from the use as well as the construction Ix xe Sucre the railway." In the Commonwealth Act the words used are yjerren "by reason of carrying out the public purpose." In that case the pers aa y Council held that the enhancement would only be set off Tonres. nst the damages sustained and not against the value of the land powers 3. en, but the Commonwealth Act expressly provides that it must set off against both the value and damages. I hold that I am quired to find to what extent the rest of the adjoining lands of claimants is enhanced in value by reason of carrying out the lic purpose for which the land in question was acquired, namely, the construction and use of a railway from Port Augusta to Kalgoorlie. Counsel for the claimants also during the case claimed that as the titution only gave the Commonwealth power to compulsorily uire land "on just terms" (sec. 51 (xxxr.) ) it was not within the power of Parliament to authorize the Commonwealth to take without paying for them even if a railway did enhance the e of other lands adjoining owned by a claimant to an nt exceeding the value of the lands taken. As arbitrator I assume that an Act is unconstitutional or declare it to be and in this case I cannot regard the section as unjust, because 'the reference both parties have compelled me in assessing com- tion to do so on the principles laid down in sec. 28, which es that the enhancement shall be set off against the value of lands taken, Under the reference it was provided that the arbitrator might t any stage of the proceedings, or in and by his award, and should, . directed. by the High Court of Australia, state in the form of a case for the opinion of the said Court any question of law in the course of the reference. I have not been directed by Court to state any special case, nor have I been requested the parties to state any special case. As no request has been ade to me to state a case, and the legal questions have been ably

Smith v Minister for Home and Territories [1920] HCA 1 - HCA 1920 case summary — Zoe

At a glance

Court

Decision date

Before

Source

Judgment (156 paragraphs)

Cited By (1)