Eastaway v The Commonwealth [1951] HCA 80

High Court of Australia Webb J. Dixon, Williams and Kitto JJ. Eastaway v The Commonwealth

ORDER Appeal allowed with costs. Judgment appealed from set aside. In lieu thereof enter judgment for the plaintiffs for the sum of £4,843 with costs.

Cur. adv. vult.

The following written judgment was delivered:—

Oct. 2; Dec. 20 Webb J.

This is an action for compensation for land at St. Peters, Sydney, New South Wales, resumed by the defendant Commonwealth under the Lands Acquisition Act 1906-1936. The defendant has already paid £30,000 to the plaintiffs, who, however, claim a further £19,180 5s. 9d.

The resumption notice was dated 9th June 1943, but was not gazetted until 17th April 1947. The compensation is then to be assessed as at 1st January 1947. Nothing turns on the delay in gazetting the notice. The plaintiffs became aware of the notice shortly after it was signed and suggested that the threat of resumption retarded, if it did not prevent, expansion of the business; but they did not claim compensation on the basis of potentially greater profits from expansion.

The resumed land was held by the two individual plaintiffs on trust for the third plaintiff, a company which conducted on the land the business of engineers and ironfounders. The claim is in respect of land and buildings, machinery and plant, and goodwill. It was common ground that compensation was payable in respect of all three items, and that compensation for the land and buildings might be separately assessed. It was not suggested by the defendant that the plaintiff company could have retained the goodwill by continuing the business on another site.

As to the land and buildings no question arises: it was conceded by the defendant that their value could be taken to be £8,150, being £3,150 for the land and £5,000 for the improvements. As the statement of claim set out the value of the land and improvements as £8,000, leave was given to amend it by substituting £8,150 for £8,000.