Land and Environment Court New South Wales Medium Neutral Citation: 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 Hearing dates: 10 August 2018 Date of orders: 10 August 2018 Decision date: 10 August 2018 Jurisdiction: Class 3 Before: Moore J Decision: At [7] and [8] Catchwords: SEPARATE QUESTION - proposed separate question amended - proposed separate question potentially dispositive of proceedings - separate question hearing ordered Legislation Cited: Land Acquisition (Just Terms Compensation) Act 1991, ss 55D, 59(1)(f) Cases Cited: Allandale Blue Metal Pty Ltd v Roads & Maritime Services [2013] NSWCA 103 Category: Procedural and other rulings Parties: Gertos Holdings Pty Limited - 2018/207345 (Applicant) G Capital Corporation Pty Limited - 2018/207357 (Applicant) Marsden Developments - 2018/207366 (Applicant) Roads and Maritime Services (Respondent in all matters) Representation: Counsel: Mr P Tomasetti SC (Applicants) Mr M Astill, barrister (Respondent) Solicitors: Mills Lawyers (Applicants) Norton Rose Fulbright Australia (Respondent in all matters) File Number(s): 207345 of 2018; 207357 of 2018; 207366 of 2018 Publication restriction: No EXTEMPORE Judgment 1. HIS HONOUR: On the Notice of Motion that is presently before me, the Applicant sought, in each of the proceedings, to have a separate question listed, the terms of that question being: Whether, in the circumstances which have occurred, the compensation to be paid to the Applicant in respect of the Applicant's interest in the land acquired is the balance of the sale price due to it under the contract for sale of land dated 28 June 2016 attached to the Application Class 3 and the Deed of Agreement of the same date, being Annexure B to the affidavit of Timothy Robert Mills sworn 1 August 2018, plus sundry other disturbance losses, valuation and legal fees etcetera. 1. During the course of the hearing this morning, I have indicated to the parties that I was not attracted to the setting down of that matter as a separate question. This was because it was not, in my view, sufficiently confined to addressing the circumstances where the Applicant, in substance, proposes that the differences between the market value determined by the Valuer General and the amounts the subject of the contracts in the various proposed sales, is said to be unrelated to market value and confined to being dealt with under the disturbance provisions arising out of s 55D and s 59(1)(f) of the Land Acquisition (Just Terms Compensation) Act 1991 (the Land Acquisition Act). 2. The Respondent may wish to attack the validity of the contracts for sale and the Respondent should be permitted to do that. 3. The question which requires to be determined, and I am satisfied is potentially capable of being of being dispositive of the proceedings except to the limited extent that matters of discount of disturbance compensation might arise, is whether, as I have reformulated the question, on the basis of the contracts for sale of the properties, the compensation to be paid to the Applicant in respect of this Applicant's interest in the land acquired is to be confined to calculation of compensation, having regard only to matters arising under s 55D and s 59(1)(f) of the Land Acquisition Act. 4. Reformulated in that fashion, for each of the proceedings, I am satisfied that there is a separate question which would meet sufficient of the tests which were dealt with in Allandale Blue Metal Pty Ltd v Roads & Maritime Services [2013] NSWCA 103 to enable, if answered in a particular fashion, in favour of which the Applicant contends, to significantly truncate the amount of time that would be required for the proceedings. 5. It also provides a significant opportunity to bring forward the dealing with the matter in a space that would be available in the Court's diary prior to the end of the 2018 Law Term. To go to a fully-contested trial on all matters potentially engaged was a course likely, in my assessment, to be two or three times at least as long as that which will be engaged by the separate question, might not be able to be accommodated until well after the commencement of the 2019 Law Term. 6. I therefore determine that it is appropriate to list the proceedings for the hearing of the separate question, on the basis which I have formulated, and that the parties are to approach the Registrar by On Line Court by the close of business on Tuesday 14 August 2018 to seek the matter be set down for the hearing of the separate question for a maximum of four days after the beginning of November 2018. 7. On that basis, I will also set the matter down for further directions before me on Friday 17 August 2018 to deal with timetabling matters in the proceedings, once those hearing dates have been obtained from the Registrar. Costs of the motion and costs in the cause. NOTE: A further question was subsequently included. As a result, the questions to be addressed at the separate question hearing are: 1 Whether there was any "actual use of land" by any of the Applicants that would entitle any of them to any compensation under s 59(1)(f) of the Just Terms Act? and 2 Whether, on the basis of the contracts for sale of the properties, the compensation to be paid to the Applicant in respect of this Applicant's interests in the land acquired is to be confined to calculation of compensation having regard only to matters arising under s 55(d) and s 59(1)(f) of the Just Terms Act? ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 October 2018