G Capital Corporation Pty Limited v Transport for NSW; Gertos Holdings Pty Ltd v Transport for NSW; Marsden Developments Pty Ltd v Transport for NSW [2021] NSWLEC 44

Land and Environment Court New South Wales

Medium Neutral Citation: G Capital Corporation Pty Limited v Transport for NSW; Gertos Holdings Pty Ltd v Transport for NSW; Marsden Developments Pty Ltd v Transport for NSW [2021] NSWLEC 44 Hearing dates: 22, 23 and 26 February 2021 Date of orders: 20 May 2021 Decision date: 20 May 2021 Jurisdiction: Class 3 Before: Moore J Decision: See orders at [218] and [219] Catchwords: COMPULSORY ACQUISITION OF LAND - Valuer General determines market value of acquired land - acquired land subject of contract for sale -Valuer General apportions market value between vendor and contracted purchaser - contract to purchase contingent on simultaneous settlement of two other purchases by interests related to purchaser of the acquired land - deed between the three vendors and the three purchasers requiring that all purchases be settled at the same time - purchasers would have been unable to settle at the same time - determination of the value of the equitable estate of the purchaser of the acquired land - value of the equitable estate of the purchaser of the acquired land is "Nil" CROSS‑CLAIM - Valuer General's apportionment of compensation for market value fails to account for necessity for simultaneous settlement of three purchases - acquiring authority pays compensation to purchaser for market value of equitable interest based on Valuer General's determination - acquiring authority cross‑claims to recover amount paid for equitable interest as the market value of the equitable interest is "Nil" - no opposition from purchaser to acquiring authority's cross‑claim - jurisdiction and power of Land and Environment Court to order repayment - purchaser ordered to repay acquiring authority the amount paid in reliance on the Valuer General's determination of the purchaser's equitable interest in the acquired property COMPULSORY ACQUISITION OF LAND - claim for compensation of an equivalent payment to stamp duty for the value of a replacement property - three compulsory acquisitions by the acquiring authority - each acquired property part of a common set of business interests - claim for stamp duty equivalent payment based on s 59(1)(d) of the Land Acquisition (Just Terms Compensation) Act 1992 - claims founded on asserted possible relocation of business of holding land - earlier finding (undisturbed on appeal) that none of the dispossessed owning entities was undertaking any actual use of the relevant acquired land - consideration of whether compensation entitlement arose when no actual use of the acquired land - held that actual use of the acquired land a necessary prerequisite for the award of stamp duty equivalent compensation – stamp duty compensation claims rejected Legislation Cited: Federal Court Act 1976 (Cth), s 22 Land Acquisition (Just Terms Compensation) Act 1992, ss 42, 48(5) and (6), 55(1)(d), 59(1)(d) and 66 Land and Environment Court Act 1979, ss 16(1A), 22, 24 and 25 Cases Cited: Alexandria Landfill Pty Ltd v Transport for NSW (2020) 243 LGERA 102; [2020] NSWCA 165 Bezzina Developers Pty Limited v Leichhardt Municipal Council [2006] NSWLEC 175 Blacktown Council v Fitzpatrick Investments [2001] NSWCA 259 Brock v Roads and Maritime Services (formerly Roads and Traffic Authority of NSW) [2012] NSWCA 404 Brock v Roads and Traffic Authority of New South Wales (No.2) [2012] NSWLEC 114 Fitzpatrick Investments Pty Limited v Blacktown City Council (No 2) [2000] NSWLEC 139 G. Suonaf Holdings Pty Ltd v Roads and Maritime Services [2016] NSWLEC 116 George D Angus Pty Limited v Health Administration Corporation [2013] NSWLEC 212 Gertos Holdings Pty Limited v Roads and Maritime Services; G Capital Corporation Pty Limited v Roads and Maritime Services; Marsden Developments v Roads and Maritime Services [2018] NSWLEC 166 Gertos Holdings Pty Limited v Roads and Maritime Services; G Capital Corporation Pty Limited v Roads and Maritime Services; Marsden Developments v Roads and Maritime Services [2018] NSWLEC 172 G Capital Corporation Pty Ltd; Gertos Holdings Pty Ltd; Marsden Developments Ltd v Roads and Maritime Services (2019) 243 LGERA 1; [2019] NSWLEC 12 G Capital Corporation Pty Ltd v Roads and Maritime Services [2019] NSWCA 234 G Capital Corporation Pty Ltd v Roads and Maritime Services [2020] HCASL 14 Haig v Minister Administering the National Parks & Wildlife Act (No 3) (1996) 90 LGERA 408 Health Administration Corporation v George D Angus Pty Ltd [2014] NSWCA 352 Home Care Services (NSW) v Albury City Council (2003) 136 LGERA 117; [2003] NSWLEC 214 Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16 Hua and Anor v Hurstville City Council [2010] NSWLEC 61 Kern Corporation Ltd v Walter Reid Trading Pty Ltd (1987) 163 CLR 164; [1987] HCA 20 Kirela Pty Limited v The Minister administering the Environmental Planning and Assessment Act 1979 (No. 2) (2004) 132 LGERA 90; [2004] NSWLEC 68 McBaron v Roads and Traffic Authority of New South Wales (1995) 87 LGERA 238 McDonald v Roads & Traffic Authority of NSW (2009) 169 LGERA 352; [2009] NSWLEC 105 Melino v Roads and Maritime Services (2018) 98 NSWLR 625; [2018] NSWCA 251 Minister of State for Army v Parbury Henty & Co Pty Ltd (1945) 70 CLR 459 Peter Croke Holdings Pty Ltd v Roads and Traffic Authority of NSW (1998) 101 LGERA 30 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Roads and Maritime Services v United Petroleum Pty Ltd (2019) 99 NSWLR 279; (2009) 236 LGERA 389; [2019] NSWCA 41 Roads & Traffic Authority of NSW v McDonald (2003) 175 LGERA 276; [2010] NSWCA 236 Rocco Fraietta v Roads and Maritime Services [2017] NSWLEC 11 SNS Pty Ltd v Roads and Maritime Services [2018] NSWLEC 7 Speter v Roads and Maritime Services [2016] NSWLEC 128 Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9 Texts Cited: Land and Environment Court COVID-19 Pandemic Arrangements Policy Category: Principal judgment Parties: G Capital Pty Ltd (Applicant in Matter No 207357 of 2018) Gertos Holdings Pty Ltd (Applicant in Matter No 207345 of 2018) Marsden Developments Pty Ltd (Applicant in Matter No 207366 of 2018) Transport for NSW (First Respondent in all matters/ Cross-claimant in Matter No 207366 of 2018) Regency Capital Pty Ltd (Second Respondent in Matter No 207357 of 2018) London Capital Holdings Pty Ltd (Second Respondent in Matter No 207345 of 2018) Portman Securities Pty Ltd (Second Respondent/Cross Defendant in Matter No 207366 of 2018) Representation: Counsel: Mr P Tomasetti SC/Mr J Johnson and Mr T Poisel, barristers (Applicants in all matters) Mr R Lancaster SC/Mr M Astill, barrister (First Respondent in all matters/Cross-claimant in Matter No 207366 of 2018) Mr J Jordan, solicitor (Second Respondents in all matters/Cross‑Defendant in Matter No 207366 of 2018)