Hatzivasiliou v Roads and Maritime Services [2017] NSWLEC 9

Hatzivasiliou v Roads and Maritime Services [2017] NSWLEC 9

Schedule Four of the Jax Tyres lease did not require the rent review valuation to be confined to comparable premises with an identical car tyre retail outlet use, so the Respondent's broader rental comparison approach was methodologically preferable. The Court determined market rent at $140/m2 and a capitalisation rate of 5.5%, and under the direct comparable sales check method adopted $2,000/m2 on a floor space area basis. The Applicants' claimed replacement property costs for relocation, stamp duty and new mortgage costs were not recoverable as disturbance because their management of the leased property did not constitute an actual use of the land beyond leasing.

Jurisdiction
Australia
Judgment Date
28 February 2017
Procedural Posture
Class 3 Appeal Under S 66 of the Land Acquisition (just Terms Compensation) Act 1991 (nsw) Concerning Compensation for Compulsory Acquisition / Principal Judgment With Addendum Making Final Orders in Accordance With Short Minutes of Order
Outcome
Inputs for market valuation were determined and the disputed disturbance claim based on the Applicants being active investors was refused; final orders were later made in accordance with attached short minutes of order.
Legal Topics
['market Value of Compulsorily Acquired Land' 'capitalisation of Market Rent Method' 'option to Renew Lease and Market Rent' 'direct Comparable Sales Method' 'disturbance Compensation' 'actual Use of Land by Investors']
['compulsory Acquisition' 'land Valuation' 'compensation' 'land and Environment'] ['market Value of Compulsorily Acquired Land' 'capitalisation of Market Rent Method' 'option to Renew Lease and Market Rent' 'direct Comparable Sales Method' 'disturbance Compensation' 'actual Use of Land by Investors']

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Procedural Posture

Class 3 Appeal Under S 66 of the Land Acquisition (just Terms Compensation) Act 1991 (nsw) Concerning Compensation for Compulsory Acquisition / Principal Judgment With Addendum Making Final Orders in Accordance With Short Minutes of Order

Legal Issues

  1. 1 ['How the market value of the acquired tyre retail outlet land should be assessed for compensation under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW).' 'Whether Schedule Four of the Jax Tyres lease required comparable rental evidence to be confined to premises with an identical car tyre retail outlet use.' 'What market rent and capitalisation rate should be adopted under the capitalisation of market rent method.' 'What rate should be adopted under the direct comparable sales method analysed on a floor space area basis.' 'Whether the Applicants could recover relocation, stamp duty and new mortgage costs as disturbance on the basis that they were active investors managing the leased property.']

Ratio Decidendi

Schedule Four of the Jax Tyres lease did not require the rent review valuation to be confined to comparable premises with an identical car tyre retail outlet use, so the Respondent's broader rental comparison approach was methodologically preferable. The Court determined market rent at $140/m2 and a capitalisation rate of 5.5%, and under the direct comparable sales check method adopted $2,000/m2 on a floor space area basis. The Applicants' claimed replacement property costs for relocation, stamp duty and new mortgage costs were not recoverable as disturbance because their management of the leased property did not constitute an actual use of the land beyond leasing.

Court Disposition

Inputs for market valuation were determined and the disputed disturbance claim based on the Applicants being active investors was refused; final orders were later made in accordance with attached short minutes of order.

Orders

  • ['Orders made in accordance with the attached short minutes of order.']