By Phillip Leaman

15 June 2021

Caradi Pty Ltd v Secretary to the Department of Transport [2020] VSCA 197 (5 August 2020) an appeal from SECRETARY TO THE DEPARTMENT OF ECONOMIC DEVELOPMENT, JOBS, TRANSPORT AND RESOURCES V. CARADI PTY LTD [2018] VSC 696

The Original Decision

The Authority initially made an offer of $16.15 million as compensation for the market value of the land. Caradi claimed $56 million.

The Court found that the market value of the land was $25.3 million, adopting the evidence of the Authority’s valuers. The valuations conducted on behalf of the Claimant were unduly influenced by the state of the market in the period after the acquisition and commenced from a ‘rear-view mirror’ starting point, as their valuations were undertaken many months after the date of acquisition. Undue weight was put on an incomplete transaction for a property valued at $55.5 million in 2014. Apart from legal costs the Court ordered non-pecuniary loss suffered by way of solatium awarding a nominal sum of $50,000 (the amount claimed was $1.5m). It refused to award compensation for replacement land costs of $3.35m, nor for the economic loss ($1.54m and continuing) as a result of what was claimed to be the consequences of an insufficient offer for the market value of the land at an earlier time, resulting in a lost opportunity to invest in a higher yield asset.

The Court made no award for replacement land costs, which had been claimed as disturbance losses under the LAC Act. The judge found that the applicant had failed to show that steps had been taken towards the purchase of replacement land.

 

The appeal

The claimant appealed the decision. Effectively:

  • Whether remediation costs had to be deducted or whether a general allowance could be made.
  • Whether Valuers considered sufficiently large number of comparable sales
  • The Relevance of sales after the date of acquisition in a rapidly rising market
  • Whether the Applicant was entitled to replacement land costs.

All appeal points were dismissed.

 

Court found

Para 124- the notion of highest and best use permits a combination of uses. In ISPT, this Court recognised that it was open to the tribunal in that case to find that highest and best use of the subject land extended to a range of potential uses.

That the valuations had considered comparable properties that were the highest and best use but the Court did consider the impact of the estimated remediation costs and considered the timeframe post the acquisition.

As to whether or not there were sufficient comparable properties. The Court relied on Western Australian Planning Commission v Acrus:

“However, a core requirement of the comparable sales method is that the comparable sales be sufficient in volume to justify a deduction or inference as to value. What is sufficient in volume will vary from case to case. Generally, it will require multiple (more than two) sales. In those circumstances it is necessary to consider the comparable sales evidence as a whole in order to assess whether any of the sale prices are out of line with the main body of evidence or whether there are any other conflicts in the evidence.”

The Applicant had not established the replacement land claim and the Court was not convinced that an error of law had been made.

 

Our experience

Phillip Leaman has extensive expertise in compulsory acquisitions under the Land Acquisition and Compensation Act 1986 (Vic) and we have acted in various major projects undertaken by the Victorian Government. Under the provisions of the Land Acquisition and Compensation Act, the Victorian Government and other authorities such as councils and water authorities and Vicroads can acquire privately owned land for public purposes, either compulsorily or by negotiation. As compulsory acquisition lawyers based in Melbourne, we can assist clients dealing with compulsory acquisition with all government projects in Victoria including:

We have acted for a significant number of land owners and tenants in various government infrastructure projects and we have been able to achieve excellent outcomes during the compulsory acquisition process for clients. We have also assisted a significant number of property owners who have been eligible for voluntary purchase schemes such as for the east west link, level crossing removal projects and Caulfield to Dandenong sky rail.

If you own a property or a business in the affected areas and may have your property acquired or affected directly, you should obtain advice from us.

If you are part of one of the above projects or any other compulsory acquisition under the Land Acquisition and Compensation Act, our legal costs are recoverable from the relevant authority during the acquisition process up to any Court or Tribunal proceedings being issued.

It is important that you obtain advice from professionals as early as possible to ensure that you maximise the compulsory acquisition compensation for your particular circumstances. We can also assist you with obtaining professional assistance from other experts such as valuers and relocation experts.

Our website has very useful frequently asked questions: Click here to view our Frequently Asked Questions on Compulsory Acquisition. 

To check out our flyer on acquisitions, click here Compulsory Acquisition Flyer.

 

Need Advice ?

For advice and assistance please contact Phillip Leaman, an expert compulsory acquisition lawyer. Phillip Leaman is an expert in compulsory acquisition matters and obtaining the best achievable outcomes for his clients.

 

For advice or assistance, please contact Phillip Leaman on 03 8600 9314 or by email pleaman@tlfc.com.au.

Related Articles

View All
Compulsory Acquisition

Compulsory Acquisitions- Case Law Update

This matter was appealed to court of appeal by authority The appeal allowed The compensation awarded to Hardware does...
Read More
Compulsory Acquisition / Planning

Loss of Properties under North East Link Imminent

The current North East Link project intends to have the following effect on businesses and landowners according to the...
Read More
Not-for-Profit & Charities / Technology and Start Ups / Adverse Possession

TLFC – Award Finalist for Law Firm of the Year (Medium Category)

Tisher Liner FC are proud to be nominated as an award finalist in the 14th annual Victorian Legal Awards Medium Law...
Read More
Adverse Possession / Commercial Law / Compulsory Acquisition

Property Law Symposium – Wednesday 07 March

Tisher Liner FC Law Principal and Accredited Business Law Specialist, Phillip Leaman, will be sharing his expertise on...
Read More
Compulsory Acquisition

Are you losing your home or business to the Government?

There are many government infrastructure projects occurring at the moment The Melbourne Metro Rail Authority has just...
Read More
Compulsory Acquisition

Legal Update – Section 32 Statements, Penalty Interest Rates and East West Link.

Recent changes to the Sale of Land Act which were outlined in our blog which require vendors and their agents to...
Read More
Compulsory Acquisition

East West Link approved – Compulsory acquisition to begin.

We understand that formal Notices of Acquisition could be provided by Linking Melbourne Authority to some owners within...
Read More
Compulsory Acquisition

Compulsory Acquisitions – What to do when the Government wants your land.

A brief summary of the process of obtaining compensation when your property has been compulsorily acquired under the...
Read More