t ; ; i IN THE HIGH COURT OF AUSTRALIA | pamet oo GE [ceva mds (94 \ Proelss , f OM AND ANOTHER . i v. { (| __ WEEMESTER FOR WORKS. { i ki 4 REASONS FOR JUDGMENT | lS ig i { t b i j j Judgment delivered at... SLDBBY._ i on. SURBBAY, 15th NOVEMBER 1966... i 14 A. C. Brooks, Government Printer, Melbourne c.s072/66 Ve Appeal allowed. Order of the Supreme Court of South Australia set aside. Order that a new trial of the originating summons be had. Respondent te pay the costs of this appeal, Costs of first trial to follow the order for costs of the new trial. Ve ROBINSON AND ANOTHER Ve MINISTER OF WORKS This is an appeal from a judgment of the Sapreme Gourt of South Australia (Napier C.J.) assessing compensation payable in respect of land taken by the Minister of Worka from the appellants under the Compulsory Acquisition of Land Act, 1925~1959. The land, the subject-matter in this action, is situated about a mile to the west of the Port Wakefield Road approximately fifteen miles from Adelaide. The relevant land, part of a larger holding owned by the appellants, comprised 144.7/8the agres, and was deseribed as being the whele of sections 5020 and 5016 and portion of Section 5021 in the Hundred of port Adelaide, more particularly described in certificate of title, Register Book Volume 2443 Folio 151. The acts giving rise to these proceedings commenced on 30th November 1959 when a notice to treat was served upon the appellants, as owners 'of the said land. This notice stated, inter alia, that the Minister of Works (respondent) was willing to treat with the appellants for the purchase of the said land and as to the compensation to be made to the appeliants and claims, if any, in respect of damage, Purguant to ¢. 12 of the Compulsory Acquisition of Land Act, 1925-1959 the value of the land is to be " .e. taken to be its value ... at the beginning of the period of twelve months prior to the giving by the promoters of the notiee to treat'... together ... with the actual value of any improvements bona fide made during the said period of twelve months". On lth May 1960 the appellants gave notice of their claim for the sum of £125,478. On 2. 8th July 1960 the respondent offered £31,590 in full settlement of all claims to compensation, After refusal of this offer by the appellants the Minister of Works on 12th Degember 1961 tssued an originating swmons under s. 31 of the Aqt which gives the promoters power to apply to the Court if the claim has not been determined or action commenced within six months after the claim becomes disputed. In these proceedings the respondent Ninister sought an order pursuant to the Act determining the amount of compensation payable by him to the appellants in respect of the matters referred to in the notice to treat for the sale and purchase of the relevant land; Prior to proceedings being commeneed 1 the Minister had taken possession of the subject land and the title had been transferred to him pursuant to an agreement under which he has paid the sum of £30,000 on account of the purchase money, and has agreed to pay any balance that may be awarded in exeess of that sum together with interest on the excess. Upon the hearing of this matter the respondent Minister's evidence ineluded that of an agricultural expert, Beare, who gave evidence | relating to the suitability of various areas of the subject land for market gardening, grazing and other purposes, The effect of this evidence, as relevant to these proceedings, is that the aequired land comprised at least ninety-three acres of market gardening land. Both parties to the proceedings @alled valuers whose estimates of value varied considerably. The respondent's evidence included that of two expert valuers, Bullock and Taeuber, who approached their valuations upon the basis appreved by the learned Chief Justice, namely, purchase for the purpose of sub-division, The valuations arrived at for the relevant land were £23,500 and £26,070 by the witnesses Bullock and Taeuber respectively. The appellants' evidence ineluded the estimates of £43,500 by the witness Solomon and £45,393 by the witness Leader. 3. After reviewing the evidence Napia@r C.J. eoneluded: "As between the valuers, who have given their opinions on either side, I have no hesitation in preferring the evidenoe given by the plaintiff's (respondent's) experts". The learned judge then decided: "Taking these things into account, I think that Mr..Taeuber's (one of the plaintiff's experts) figure of £175 per acre, or a total of £26,070, for the value of the subjeet land is, by no means, unfair to the defendants (appellants)". His Honour seoms to have tended towards the conclusion that there was evidence to support a finding of special value, because in his opinion, "something more" should be added to the market price valuation, The judgment then continues: "It is, of course, a matter of opinion what that 'something more' should be, But, by way of a check upon the valuations, I have been disposed to analyse the subject land, according to my view of the evidence". It 4a contended on behalf of the appellants that the learned Chief Justice was in error in ¢extain of the calculations he made and the valuations he adopted in the course of the analysis he undertook, and that as 1t formed a necessary basis for the amount awarded in compensation, this Court should correct such errors and re-asaees the amount payable to the appellants pursuant to the Compulsory Acquisition of Land Act, 1925- 1959. For my part, I do not consider that the remedy sought by the appellants should be granted, The learned Chief Justice, in his judgment, preferred the evidence of the respondent's valuers and expressly accepted the market price valuation to be £175 per acre. By then proceeding to assess the amount of compensation on the basis of the owners (appellants) being entitled to "something more" in addition to the market value and the value of the bore and the improvements, assessed at £1,900 and £720 respectively, he the learned Chief Justige is assuming the appellants have a right to maintain a elaim to special value. It is gonsidered that unless a special value is proved the assesment {fs to be based on the market value, being the most advantageous sale that the owners could have obtained from an ordinary prudent purchaser, (See Gripps *"Gompulsory Acquisition of. Land", lith edition, p» 699.) I accept the eontention advanced on behalf of the respondent' that there is no evidence of sufficient veight to support a finding of special value in this case, and consequently, the decision as to market value must forms the basis of the assessment. Having no cross-appeal, the respondent does not dispute the award merely because it is in excess of the sum proved by the testimony to be market value, In order to calculate the compensation on the basis that the land had a special value to the appellants, Napier C.J, adopted the evidence of the witness Beare and proceeded to disseet the subject land into, areas of warket gardening, grazing and salty land. The appellants content? that the effect of this evidence is that there were 99 acres of market gardening land, 16.3/% acres of grazing land and 29 acres of salty land. It is conceded by the respondent that this evidence supports a finding that there were at Least 93 acres of market gardening land. But Napier C.J. ealoulated it at 76 acres of market gardening land. If the appellants' submission he accepted, the amount of compensation would be increased to £35,335. This figure is very substantially in exooas of the amounts to which the valuers, preferred by the learned Chief Justiae, deposed to, these anoants were £23,500 and £26,070 respectively. The amount of £35,335 seams too high having regard te the evidence, even if tho basis of valuation should be that the land , had a speeial walue to the appellants, If the acreage of the market gardening land adopted by the Chief Justice 5. is adjusted to the figure for whieh the appellants contend there would still remain the problem of how to support a value of £300 per acre for such land. There is but slender evidence to support that value and it was given by a witness to whose #vidence in other respects the learned Chief Justice did not attach much weight. In these proceedings the respondent has not filed a crosa-appeal., He is content to leave the award standing rather than seek a new trial on grounds depending upon miscaloulations in the court of first instance to which reference has been made. For these reasons I would dismiss the appeal. Ve This is an appeal from an order of the Supreme Court of South Australia made upon an originating oumnoas taken out by the respondent for the detersination of the ancant of compensation payable to the appellants upon the sequisitien of a substantial parcel of their land parguant to the Coupulsery Aequisition of Land Act 1925. The lant in question eonsisted of approximately 145 acres of the appellants' lani in the vioinity of the Port Wakefield Aoad about fifteen niles from Adelaide. Upon consideration of the evidence the learned trial judge assessed the snount of eonpensation at £29,720 and sinse, adcerding te his reasons, £30,000 had already been paid to the appellants on asadunt of their @lain, they vere ordered to pay the reapendent's costs of the proceedings. Upon analysia the actual amount detersined by the learned trial judge seems ts have boon arrived at by aonsidering the petential use to whieh differeat portions of the land could be put and by attributing a value to each of those portions, Xn vartioular, his relevant caluslations and eesesmments of value vere as follows: "Ceasing'ieate "*"' & Stree ax shoo = £'sho00 Salty fant acres at £60= £ js Totals pL az.iog * Thea, after considering other matters sach as coupensation for a Bore on the retained land, waleh by reason of the aequisition had, hia Honowr thought, become useless to the appellants, he added £1,900 on that account. Finally he added "For these reasons, I think that a fair assesment of the eompensation, payable in respect of the acquisition, As £29,720, and, if I am so required, I an prepared te order and adjadge accordingly, but, in view of the payzent that has alvesdy been made, it aay be thet I should assess the conpensation at the round figure of £30,000". However the order ef the Court purported to determine the ancunt of ecnpensation payable at £29,720. ° For the appellants it was contended quite briefly that there ves @ signifieant errer in his Honcur's ealeulations and we ware referred to evidense - given by Mr, Jo de Beare who was called on behalf of the respondent and who was sesapted ty his Honour « the effect of vhich ws 0 show that the area of the subjest lend suiteble for market gardening was net seventy acres bat approxinately ninety-nine acres, thet the land suitable for grazing purposes consisted of appraximately seventeen acres and that the salty lend vas sous tventy-nine aercs in area, If, therefore, his Honsur's enleulutions vere adjusted aieebeeperiinmnnnepee ten sores at gfe Sreeingrigeat sexes St & aE Totals tes conver me ty the veepennt to these contentions did not seriously dispute the ageuracy of this analysis of the evidence, Indeed on the req ondent's analyaie ef the evidence it showed that At established that there were 9} acres of first clase sarket gardening land, 18 acres of second class market gardening land and Ye acres of indifferent grasing land and, attributing 0 Value of £300, £166, and £60 per acre respectively to these three aereages, the resultant figure vas £31,740. Sasentially, however, the respondent's answer was, as counsel), fer that party said, an answer by way of « confession and avoléanee. It asserted, es was the fact, that at an earlie? atage in his reasons the learned trial judge had 3s made an exprees finding that the value of the land acquired was £175 per sere "ar a total of £26,970", Wat after making thie finding hia Honwr proceededt * On the other hand, it seeas to wey ae I have already said, that, in the eirounstences ef this sass, it may be unfair to hold the defendants atrictly te the price that they ood have opysinad fron « parenaser, intending to an om $022, It foliovs, in ay Oy eee eee eee, nlaas Soli kev bee: re thie property, wight a been the price that Thereafter his Honur made the caleulations to whieh ve have already nade reference. 'There was oot a creat @isparity between the figure of £26,070 wnieh his Honver had earlier adopted ond the figure of £27,500 whieh those ealealations produced, Sut when it is seen that upon a eorrect analysis ef the evidence those qalculations voald have produged an aucunt so wach in exeess of the figure of £26,070 the Aleparity beaowes considerable. Yer the respondent, however, it vas said that 48 wae quite unnecessary for the learned trial judce te prossed to make the final ealeulatioas which he resorted in order to cheek his initial finding as to the overall be value af the land. This was, in offest, a vark of separercgation ant {t was said that bis determination should be alloved te stand oa the strength of his initial expression of opinion, But we fint difficulty in sesepting * this eontention for if the final ealenlations had been made on @ basis mare in keeping vith the evidence the result which thay would have profeced might well have saused hin to revise his initial assesenent, Hovever, be this as it may, the ultimate determination of the asount of compensation payable routed fairly ant squarely an these caloulations ~ as will be seen fran the fact that the amount which his Honvcar evarGed vas the am of the ancunt of £27,500 and the ancunts of £2,900 and £720 in respect of « deve which hed becows of lems value to the appellante ant, presusably, in respect of iuprovenents + and in these there was, it seems to uty & Mignificant error. the question thea 19 whether there should be @ mow trial, Thie, of course, is a course ta be avoided if pewsivie but unfortunately it scene te us that it cannst be avoided. It wan pednted out by the respomtent that there was no gatlafactory evidence apen whieh his Nenowr could have aywived at 2 valuation of £300 per aere for land suitable for mawket gaxfening ani, when pressed by us, counsel for the appeliants wae not able to point to any. In the result there mat be a new trial of the isme between the parties unless, of course, they ove fit to rescive the aatter in sume other ways a