UTSG Pty Ltd v Sydney Metro (No 6) [2020] NSWLEC 63

Land and Environment Court New South Wales

Medium Neutral Citation: UTSG Pty Ltd v Sydney Metro (No 6) [2020] NSWLEC 63 Hearing dates: 8-12 and 15-16 April, 26 September, 31 October, 1 and 14 November, 9-11, 13 and 16-17 December and 18 December 2019 (further written submissions) Date of orders: 29 May 2020 Decision date: 29 May 2020 Jurisdiction: Class 3 Before: Pepper J Decision: See orders at [426]. Catchwords: COMPULSORY ACQUISITION: determination of compensation for the compulsory acquisition of a leasehold interest – corporate applicant not legally represented – applicant changed basis of claim for compensation numerous times during the proceedings – conduct of proceedings characterised by delay and non-compliance with court orders by the applicant – applicant falsified evidence – credit of director representing the corporate applicant – applicant abandoned claim for extinguishment of business due to the acquisition - applicant did not establish claim for wasted relocation costs, including wasted fitout costs – applicant did not establish claim for past loss of income – applicant did not establish claim for future loss of income – claim for legal fees and valuation costs agreed – compensation for legal costs and valuation fees offset against rental arrears owed to acquiring authority – nil compensation determined to be payable by acquiring authority.

COSTS: costs principles in compulsory acquisition cases – determination of costs where no entitlement to compensation – applicant to pay the acquiring authority's costs of the proceedings. COSTS: whether a non-party costs order should be made against a director of the applicant – legal principles to be applied in the making of non-party costs orders, especially where non-party a director of an unrepresented corporate party – conduct of director in the running of the proceedings justified the making of a non-party costs order – non-party director of corporate applicant jointly and severally liable to pay the costs of the acquiring authority. Legislation Cited: Civil Procedure Act 2005, s 98(1) Evidence Act 1995, s 140(2) Land Acquisition (Just Terms Compensation) Act 1991, ss 34(4), 39, 42, 47, 51(3), 54, 55(a), 55(d), 56, 59(1), 66 Uniform Civil Procedure Rules 2005, r 7.1(2) Cases Cited: Blazai Pty Ltd v Maclarens (No 2) [2013] NSWSC 31 Brand2Content t/as Franchise Works v Dalby [2019] NSWCA 16 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Brock v Roads and Maritime Services (No 3) [2012] NSWCA 404; (2012) 191 LGERA 267 Brock v Roads and Traffic Authority of New South Wales (No 2) [2012] NSWLEC 114 CCL Secure Pty Ltd v Berry [2019] FCAFC 81 Croghan v Blacktown City Council [2019] NSWCA 248; (2019) 238 LGERA 439 Dillon v Gosford City Council [2011] NSWCA 328; (2011) 184 LGERA 179 FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340 G Capital Corporation Pty Ltd v Roads and Maritime Services [2019] NSWCA 234 G Capital Corporation Pty Ltd; Gertos Holdings Pty Ltd; Marsden Developments Ltd v Roads and Maritime Services [2019] NSWLEC 12 Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 May v Christodoulou [2011] NSWCA 75; (2011) 80 NSWLR 462 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 Naomi Marble and Granite Pty Limited v FAI General Insurance Company Limited (No 2) [1999] 1 QdR 518 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 Omaya Investments Pty Limited v Dean Street Holdings Pty Limited (No 5) [2020] NSWLEC 9 PM Works Pty Ltd v Management Services Australia Pty Ltd trading as Peak Performance PM [2018] NSWCA 168 Roads and Maritime Services v United Petroleum [2019] NSWCA 41; (2019) 99 NSWLR 279 Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 State of New South Wales v Hunt [2014] NSWCA 47; (2014) NSWLR 226 UTSG Pty Ltd v Sydney Metro [2018] NSWLEC 128 UTSG Pty Ltd v Sydney Metro (No 2) [2018] NSWLEC 199 UTSG Pty Ltd v Sydney Metro (No 4) [2019] NSWLEC 51 UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107 Yu v Cao [2015] NSWCA 276; (2015) 91 NSWLR 190 Texts Cited: Sir Walter Scott, Marmion: A Tale of Flodden Field (Ballantyne and Co, Edinburgh, 1808) Category: Principal judgment Parties: UTSG Pty Ltd (Applicant) Sydney Metro (Respondent) Representation: Counsel: Ms S Singh and Dr M Baig (Applicant, director-represented) Mr R Lancaster SC with Mr N Eastman (Respondent)