Cunningham v The Commonwealth [1948] HCA 6

High Court of Australia Williams J. Cunningham v The Commonwealth [1948] HCA 6

ORDER Judgment for the plaintiff accordingly.

Cur. adv. vult.

The following written judgment was delivered by:—

Aug. 5 Williams J.

This is an action brought under the provisions of s. 37 of the Lands Acquisition Act 1906-1936, hereinafter called the Act, to recover compensation for the compulsory acquisition by the Commonwealth on 12th October 1944 of the plaintiff's land in Dangar Place, Chippendale, for the public purpose of erecting a post office. This is a public purpose not authorized by a special Act so that, in accordance with s. 29 (a) of the Act, the value of the land must be assessed as on 1st January 1944. But it is common ground that there was no difference between the value of the land on that date and the date of acquisition.

Section 28 provides that, in determining the compensation, regard shall be had to the three matters mentioned in sub-ss. 1 (a), (b) and (c), but the only one of these matters which is material in the present case is (a) which provides that in determining the compensation regard shall be had to the value of the land acquired.

The plaintiff claims as compensation £4,135, being the addition of the following items: (1) unimproved value £970; (2) value added by improvements £2,030; (3) £300 as loss occasioned by the compulsory acquisition calculated at ten per cent on the improved value of £3,000; (4) £835 as compensation for loss of income on re-investment.

The defendant admitted in the statement of defence that the unimproved value of the land was £970. On 23rd April 1945, it also admitted that the value of the improvements was £2,030. The items still in dispute are therefore items (3) and (4).

The circumstances in which it is justifiable to include the third item in the value of the land were explained in Geita Sebea v. Territory of Papua [1] . None of these circumstances have been proved in this case and I must therefore disallow item (3).