Mathew Massasso t/as Five Dock Pharmacy v Sydney Metro [2023] NSWLEC 115

Land and Environment Court New South Wales

Medium Neutral Citation: Mathew Massasso t/as Five Dock Pharmacy v Sydney Metro [2023] NSWLEC 115 Hearing dates: 17 to 21 and 24 to 28 July 2023 Decision date: 30 October 2023 Jurisdiction: Class 3 Before: Moore J Decision: See directions at [689] Catchwords: COMPENSATION – compulsory acquisition of leasehold interest in shop premises – claim for loss of profit rent allegedly lost for the remainder of the term of the lease renewal options – consideration of market rent – no difference between passing rent and market rent established – profit rent claim fails COMPENSATION – compulsory acquisition of leasehold interest in shop premises – claim for relocation of retail pharmacy business – substantial demolition and construction/reconstruction and structural alterations to relocation premises – whether structural alteration costs appropriate to be borne by Applicant and reimbursed by acquiring authority – costs of demolition and construction/reconstruction appropriate to be regarded as landlord's costs – claim rejected COMPENSATION – claim for cost of buying out existing tenants in order to render demolition and construction/reconstruction activities possible – cost of buying out existing tenants appropriate to be regarded as landlord's expenses – claim for reimbursement of cost of buying out existing tenants rejected COMPENSATION – claim for costs of fit-out of new premises – new premises fitted-out not only in compliance with regulatory requirements but also to best contemporary pharmacy practice – were costs of fit-out reasonably incurred and thus compensable – costs of fit-out reasonably incurred – Applicant entitled to reimbursement for costs of fit-out COMPENSATION – claim for differential in rental between that paid at the acquired premises and that paid at the relocation premises – rent at relocation premises higher than that at acquired premises - claim based on full term of lease assuming exercise of multiple renewal options - relocation premises larger than acquired premises rate per square metre at relocation premises lower than that at acquired premises – rent comparison appropriate on rate per square metre – no basis for claim – differential rent claim rejected COMPENSATION – claim for reimbursement for double rental paid at the acquired premises and that paid at the relocation premises – claim based on time including time for demolition and construction/reconstruction works – not appropriate to order reimbursement for rent paid during period whilst landlord's works were being undertaken – appropriate to allow nominal three-month rent-free period for fit-out works as provided for in the lease– claim for reimbursement of double rental rejected COMPENSATION – compulsory acquisition of leasehold interest in shop premises – claim for temporary business losses – losses said to arise as a consequence of this favourably located new premises – whether loss occasioned by ongoing gradual decline of business – claim not established. COMPENSATION – compulsory acquisition of leasehold interest in shop premises – claim for long-term loss of profit as a consequence of non-establishment of proposed nearby medical Centre – site of proposed medical Centre also resumed for public purpose – assumptions underpinning claim of increased business from medical centre not established – claim rejected – claim rejected COSTS – claims arising from compulsory acquisition of leasehold interest in retail premises – although significantly unsuccessful, Applicant's case not completely unarguable or hopeless – appropriate acquiring authority pays costs of Applicant on ordinary basis Legislation Cited: Civil Procedure Act 2005 Health Practitioner Regulation 2016 (NSW) Land Acquisition (Just Terms Compensation) Act 1991 Uniform Civil Procedure Rules 2005 Cases Cited: Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165 Banno v Commonwealth of Australia (1993) 45 FCR 32 Briginshaw v Briginshaw (1938) 60 CLR 336 Brock v Roads and Maritime Services (formerly Roads and Traffic Authority of NSW) (2012) 191 LGERA 267; [2012] NSWCA 404 Croghan v Blacktown City Council [2019] NSWCA 248 El Boustani v Minister for Administering Environmental Planning and Assessment Act 1979 [2014] NSWCA 33 Dillon v Gosford City Council (2011) 184 LGERA 179; [2011] NSWCA 328 George D Angus Pty Ltd v Health Administration Corporation [2013] NSWLEC 212 G&J Drivas Pty Ltd v Sydney Metro [2023] NSWLEC 20 Home Care Services (NSW) v Albury City Council (2003)136 LGERA 117; [2003] NSWLEC 214 Hoyts and Spencer (1919) 27 CLR 133 Hua V Hurstville [2010] NSWLEC 61 James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 Konduru v Roads v Maritime Services (2017) 224 LGERA 262; [2017] NSWLEC 36 McBaron v Roads and Traffic Authority (NSW) (1995) 87 LGERA 238 McDonald v Roads and Traffic Authority of New South Wales [2009] NSWLEC 105 Minister for Army v Parbury Henty & Co (1945) 70 CLR 459; [1945] HCA 52 Peter Croke Holdings Pty Ltd (1998) LGERA 108 Roads & Traffic Authority of NSW v McDonald [2010] NSWCA 236 Qasabian Family Investments Pty Ltd v Roads and Maritime Services; Fishing Station Pty Ltd v Roads and Maritime Services [2017] NSWLEC 73 RTA v Perry & Anor (2001) 52 NSWLR 222; [2001] NSWCA 251 Sydney Water Corporation v Caruso and Ors [2009] NSWCA 391 Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41 Category: Principal judgment Parties: Mathew Massasso t/as Five Dock Pharmacy (Applicant) Sydney Metro (Respondent) Representation: Counsel: I Hemmings SC/N Eastman and E Dunlop, barristers (Applicant) G Sirtes SC/C Norton, barristers (Respondent)