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Zacsam Pty Ltd v Moreton Bay Regional Council[2016] QLC 12

Zacsam Pty Ltd v Moreton Bay Regional Council[2016] QLC 12

LAND COURT OF QUEENSLAND

CITATION:

Zacsam Pty Ltd v Moreton Bay Regional Council [2016] QLC 12

PARTIES:

Zacsam Pty Ltd

(applicant)

 

v

 

Moreton Bay Regional Council

(respondent)

FILE NO:

AQL817-11

DIVISION:

General Division

PROCEEDING:

Application to determine compensation under the Acquisition of Land Act 1967

DELIVERED ON:

25 February 2016

DELIVERED AT:

Brisbane 

HEARD ON:

19, 20, 22 October 2015

HEARD AT:

Brisbane

MEMBER:

WA Isdale

ORDERS:

1. Compensation for loss of profits for the applicant’s business is assessed in the sum of $137,628.16.

2. Interest is payable on the compensation amount from 22 January 2012 to the date of payment, both dates inclusive. Interest is payable at the rate applicable from time to time as published by the Land Court. The payment of an advance of $121,998 on 24 October 2014 is to be taken into account in calculating the remaining sum due to the applicant.

3. Any application for costs is to be filed and served and any reply is to be filed and served as directed.

4. Costs incurred in making the claim for compensation are payable to the applicant at the agreed figure of $9,748.20.

CATCHWORDS:

Compensation – assessment of compensation – loss of profits of business – loss of capital value of business – loss of rental expense of business premises

Acquisition of Land Act 1967, s 20

LGM Enterprises Pty Ltd v Brisbane City Council [2009] QLC 178

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Mekpine Pty Ltd & Anor v Moreton Bay Regional Council [2012] QLC 46

Moreton Bay Regional Council v Mekpine Pty Ltd & Anor [2013] QLAC 5

APPEARANCES:

MD Alexander instructed by Hillhouse Burrough McKeown for the applicant

ANS Skoien instructed by R Duhig, Legal Services Department for the respondent

SOLICITORS:

Hillhouse Burrough McKeown for the applicant

Legal Services Department for the respondent

Background

  1. [1]
    The applicant, Zacsam Pty Ltd (Zacsam) has claimed compensation under the Acquisition of Land Act 1967 (the Act). On 14 November 2008 the respondent Council (the Council) acquired 418 m² of land for roadworks. The land, on the southern side of Dohles Rocks Road to the east of its intersection with Ogg Road, Murrumba Downs, was on the Dohles Rocks Road frontage of the Castle Hill Shopping Centre.
  2. [2]
    Zacsam operated a pizza business under the franchised name of Eagle Boys in the shopping centre. The question whether or not it had an estate or interest in the resumed land pursuant to the Act was considered by this Court in 2012 and answered in the affirmative.[1]
  3. [3]
    This finding was upheld by the Land Appeal Court in 2013.[2] The Land Appeal Court found that Zacsam had an estate or interest in the land pursuant to s 12(5) of the Act. The effect of s 12(5) was to convert the estate and interest of any person in the land into a right to claim compensation under the Act. Zacsam leased premises in the shopping centre for its business.
  1. [4]
    The parties have been unable to agree on the amount of compensation payable to Zacsam so the matter must be determined by the Court.

The dispute

  1. [5]
    As required by the Court in order to focus the matters in dispute, the parties provided an agreed list of what is in dispute and what is not. It is in the following terms:

“AGREED LIST OF DISPUTED ISSUES AND AGREED ISSUES

PART A – ISSUES IN DISPUTE

The parties agree that the following issues remain for determination in this proceeding involving a claim made by Zacsam Pty Ltd (the ‘Applicant’) against Moreton Bay Regional Council (the ‘Respondent’) arising from the resumption on 14 November 2008 (the ‘Date of Resumption’) of land at the corner of Dohles Rocks Road and Ogg Road, Murrumba Downs, and consequent roadworks (the ‘Roadworks’):-

Impact of the Roadworks upon the Applicant’s Business

  1. In what way has the Roadworks affected the conduct by the Applicant of the Eagle Boys pizza franchise at Murrumba Downs (the ‘Applicant’s Business’), namely:
  1. (a)
    what is the loss of profits of the Applicant’s Business (the amount claimed being $311,520 and the amount contended for by the Respondent being $67,532);
  1. (b)
    what, if anything, is the loss of capital value of the Applicant’s Business (the amount claimed being $420,000 and the amount contended for by the Respondent being Nil); and
  1. (c)
    what, if anything, ought to be paid to the Applicant by reason of rental liability of the Applicant (the amount claimed being $66,547 and the amount contended for by the Respondent being Nil).

Costs Associated with the Claim for Compensation

  1. In respect of the claim by the Applicant against the Respondent for compensation in the amount of $15,000 for costs incurred in the preparation of the Applicant’s claim for compensation:
  1. (a)
    the amount of any such expenses incurred by the Applicant;
  1. (b)
    whether such expenses incurred by the Applicant were incurred in respect of the preparation of the Applicant’s claim for compensation; and
  1. (c)
    whether those expenses incurred by the Applicant were reasonable;

Interest

  1. The extent of any interest to be paid in respect of any award of compensation; and

Costs of the Proceeding

  1. Whether there ought to be an award of costs in the proceeding and, if so, the extent of any award of costs, including the basis for assessment of those costs.

PART B – AGREED MATTERS

The parties agree that there is no dispute about the entitlement of the Applicant to be awarded interest on compensation at the applicable rates published by the Land Court from the time the Applicant incurred the relevant compensable loss until the time of payment of compensation, taking into account the amount, and time of payment, of the advance against compensation already paid by the Respondent to the Applicant.”

  1. [6]
    Neither party sought to resile from this list. It was also uncontroversial that Zacsam was entitled to claim for damages as the operator of the Eagle Boys franchise, in view of the legal determinations which have been made already.
  2. [7]
    With respect to the costs associated with the claim for compensation, the parties informed the Court during the course of the hearing that they had reached an agreement that the sum of $9,748.20 was the applicable sum for this category of compensation.

Advance paid

  1. [8]
    By letter dated 24 October 2014, which became exhibit 12, the Council paid $121,998 to Zacsam’s solicitors as payment of advance compensation.

Witnesses called on behalf of Zacsam

  1. [9]
    Ms Ingrid Tracey Nichols, the sole director of Zacsam, gave evidence. Her affidavit forms part of exhibit 2, the agreed bundle of documents. Ms Nichols informed the Court that around 16 March 2008 Zacsam commenced to lease a shop in the shopping centre called Castle Hill Shopping Court. The lease was for a term of ten years with an option to renew it for a further five years. On about 16 March 2008 Zacsam entered into a franchise agreement with Eagle Boys Dial-A-Pizza Australia Pty Ltd (Eagle Boys). The business was to operate from the shop, which Eagle Boys had fitted out. Trading commenced on 17 March 2008.[3]
  2. [10]
    The roadworks did not begin until May 2010[4] and Zacsam carried on its business in the leased premises. Ms Nichols worked in the business between nine and fourteen hours per day, six or seven days per week. There was one permanent employee and a pool of eighteen to twenty-five casual staff members, often students. Customers would reach the store on foot from the local school, retirement village or residences, entering from the Ogg Road or Dohles Rocks Road entrances to the centre. There was also a drive-through part of the shop able to be accessed through the shopping centre. Customers could park on or walk across the resumed land as well and there was also the facility for delivery of telephone orders.
  3. [11]
    The business performed well, the obligations of the business were met and the possibility of a further franchise was contemplated.[5]
  4. [12]
    For about six weeks commencing 13 May 2010 the Council carried out roadworks which included constructing the balance of McClintock Drive which is the right-hand turn from Dohles Rocks Road before one comes to Ogg Road. At the conclusion of those works Ms Nicholls noticed the diversion of west-bound traffic so that there was a significant reduction of the traffic that passed Zacsam’s business.[6]
  5. [13]
    Ms Nichol’s affidavit goes on to describe the respondent’s roadworks at and around the intersection of Dohles Rocks Road and Ogg Road. In order to properly appreciate the extent and effect of what were major roadworks, it is useful to set out her description, given in item 26 of her affidavit:
  1. “(b)
    From 15 June 2010 and continuing for a period of approximately 12 months to June 2011 the Respondent performed road works at and around the intersection of Dohles Rocks Road and Ogg Road (‘the intersection’) which consisted of:
  1. (i)
    The removal of the concrete pedestrian footpath, earthworks, drainage works, road widening and curbing and channelling on the land that ran parallel with Dohles Rocks Road and Ogg Road adjacent to the Castle Hill Shopping Centre caused, from my observations:
  1. (A)
    the blockage of the previous multiple pedestrian access points to Castle Hill Shopping Court;
  1. (B)
    the blockage of pedestrian access to the Business;
  1. (C)
    the significant impediment of pedestrian access to the Castle Hill Shopping Court;
  1. (D)
    significant impediment of pedestrian access to the Business;
  1. (E)
    the removal of motorised scooter access to Castle Hill Shopping Court;
  1. (F)
    the continuing and permanent removal of the popular casual parking area on the land that ran parallel with Dohles Rocks Road adjacent to the Castle Hill Shopping Court;
  1. (G)
    the continuing and permanent removal of the popular roadside parking along both the northern and southern sides of Dohles Rocks Road previously convenient for casual access to the Castle Hill Shopping Court;
  1. (H)
    Major delays for traffic passing the location of the Business;
  1. (I)
    Diversions of westbound traffic from exiting the Bruce Highway by the Dohles Rocks Road turnoff to exiting further north at the Anzac Avenue exit;
  1. (J)
    A significant reduction in the number of pedestrians and traffic that passed the Business;
  1. (K)
    A significant reduction in the number of pedestrians and traffic that entered the Business;
  1. (L)
    A significant reduction in the number of people who walked or drove from the local Queensland Education Centre and Underba State School the Business (sic) at lunch time and after school times;
  1. (M)
    A significant reduction in the number of people who walked or drove from the local retirement village to the Business at lunch time and dinner time;
  1. (N)
    A significant reduction in the number of people who drove from the local Water Sewerage Plant to the Business at lunch time and dinner time; and
  1. (O)
    The inability to use the area of land adjacent to the Business shop to Dohles Rocks Road for advertising and promotional activities including placing signs and billboards in the area, having the Eagle Boys Mascot stand in this area and parking the Eagle Boys promotional vehicle in the area.
  1. (ii)
    From September 2010 and continuing for approximately 8 months to May 2011 the removal of the traffic lights at the intersection and the installation of a temporary roundabout at the intersection and the placement of concrete barriers on along (sic) the northeast side of Dohles Rocks Road leading in to the intersection caused, from my observations:
  1. (A)
    Significant impediment of access to the Castle Hill Shopping Court for pedestrians coming from the northern and eastern sides of the intersection from the local school, learning centre, retirement village and residential areas;
  1. (B)
    Decreased night time visibility at the intersection because of a lack of proper lighting;
  1. (C)
    A significant rise in the frequency of motor vehicle accidents at and around the roundabout at the intersection (approximately 10 accidents in the eight month time period the roundabout was installed);
  1. (D)
    Major delays for traffic passing the location of the Business; and
  1. (E)
    A significant reduction in the number of pedestrians and traffic that passed or entered the Business.
  1. (iii)
    From June 2010 to June 2011 road works were performed on the southern side of the intersection on Ogg Road which caused, from my observations:
  1. (A)
    A frequent reduction of lanes from two lanes to one lane with traffic passing both ways in one lane;
  1. (B)
    Lowering of the road surface causing intermittent flooding of Ogg Road adjacent to the Castle Hill Shopping Court during times of moderate rainfall;
  1. (C)
    The partial blocking of the Ogg Road driveway entrance to the Castle Hill Shopping Court;
  1. (D)
    The blockage of the Business ‘drive-thru’ between 20 June 2011 and 25 June 2011;
  1. (E)
    Major delays for traffic passing the location of the Business;
  1. (F)
    Diversion of traffic away from the Business;
  1. (G)
    A significant reduction in the number of pedestrians and traffic that passed the location of the Business; and
  1. (H)
    A significant reduction in the number of pedestrians and traffic that entered the Business.
  1. (c)
    From 16 September 2010 and continuing for a period of approximately 8 months to May 2011 the closure of Ogg Road on the northern side of the intersection which caused, from my observations:
  1. (i)
    Complete blockage and diversion of traffic travelling from the residential areas on the northern side of the intersection towards the Castle Hill Shopping Court;
  1. (ii)
    Major delays for traffic passing the location of the Business;
  1. (iii)
    A significant reduction in pedestrians and traffic that passed the location of the Business; and
  1. (iv)
    A significant reduction in the number of pedestrians and traffic that entered the location of the Business.
  1. (d)
    From 11 February 2011 and continuing for approximately 4 months to the end of May 2011 all traffic was shifted from the previously existing section of Dohles Rocks Road (the southern side directly adjacent to the Castle Hill Shopping Court) to the newly constructed road along the northern side of Dohles Rocks Road which caused, from my observations:
  1. (i)
    Major delays for traffic passing the location of the Business;
  1. (ii)
    A significant reduction in the traffic that passed the Business;
  1. (iii)
    The creation of a significant height differential between the northwest bound lanes and the southeast bound lanes of Dohles Rocks Road of approximately 300mm that prevented many motor vehicles from accessing the Dohles Rocks Road driveway into the Castle Hill Shopping Court except for four-wheel drive type vehicles; and
  1. (iv)
    A significant reduction in pedestrian and traffic that passed the location of the Business; and
  1. (v)
    A significant reduction in the number of pedestrians and traffic that entered the location Business.
  1. (e)
    During December 2010 and between February 2011 and June 2011 night road works were performed on Dohles Rocks Road adjacent to the Castle Hill Shopping Court from approximately 6:30 pm onwards that caused, from my observations:
  1. (i)
    significant impediment to customer access to the Castle Hill Shopping Court during dinner time trading hours;
  1. (ii)
    Major delays for traffic passing the location of the Business;
  1. (iii)
    A significant reduction in pedestrians and traffic that passed the location of the Business;
  1. (iv)
    A significant reduction in the number of pedestrians and traffic that entered the Business.”
  1. [14]
    Between May 2010 to January 2012 Ms Nichols was working nine to fourteen hours a day, six to seven days a week managing the business. It was not suggested that she was unable to make the observations contained in her affidavit. From her own experience accessing the business, she states that the road works project made it difficult for customers to access the business.[7]
  2. [15]
    The business was devastated and ceased to operate in January 2012.[8] From September 2011 Ms Nichols had replaced herself with a full-time manager due to the stress she had been experiencing.[9]
  3. [16]
    In an attempt to mitigate the decline in sales revenue during the roadworks, wages expenses and opening hours were reduced and there was a focus on selling higher-margin products.[10] In July or August 2011 Ms Nichols arranged with a neighbour who operated a business broking business to see if there was interest from any potential purchaser of Zacsam’s business but none was found.[11] From late 2013 the premises became a McDonalds fast food restaurant.[12]
  4. [17]
    In cross-examination, Ms Nichols acknowledged that some of the Eagle Boys franchises did not succeed but the failure rate was very low. The business was financed by three loans from Westpac Banking Corporation, one of $35,000 which was to be, and was, repaid in a short time, one of $220,000 due in 2018 and one of $165,000 where the principal was not due until 2031. Up to then it was to be attracting payments of interest and fees only.[13] Ms Nichols used around $165,000 of equity in her residence[14] in the financing and paid a deposit of $11,000 for the franchise.[15] The accounts for the part of the 2008 financial year that the business existed, and the 2009 financial year accounts, were prepared by accountants.[16] Accounts for 2010 and 2011 were not prepared by accountants and no accounts have yet been prepared for 2012.[17] The business used the “MYOB” accounting system,[18] set up by Ms Nichols’ accountants.[19]
  5. [18]
    On approximately 1 February 2012 the landlord, Keyjan EB Pty Ltd, re-took the premises and commenced to run the business “on behalf of the tenant” (Zacsam)[20] until the franchise ended and the store closed on 17 March 2013.
  6. [19]
    Ms Nichols was shown the affidavit of Paul Arthur Hilton, the respondent’s senior project manager. Mr Hilton was the project manager of the roadworks in the area between May 2010 and July 2011. The five aerial photographs exhibited to the affidavit of Mr Hilton show the before and after conditions and show some of the works while in progress. Ms Nichols disagreed with the assertion that vehicular access was provided throughout the entire time of the roadworks.[21]
  7. [20]
    In her affidavit, Ms Nichols stated that the downturn in sales meant that by the beginning of 2011 the business could no longer afford the “usual” advertising which was done twice a month costing around $300 to $700 per letter box drop.[22]
  8. [21]
    Ms Nichols gave evidence that the Dohles Rocks Road access to the shopping centre might be closed some days from 7.00 am to 2.00 or 3.00 pm and it could be closed at lunch time and not re-opened until the next day.[23] This happened consistently.[24] After the roadworks had been completed, Ms Nichols maintained that their ongoing legacy was that people had, by habit, stopped coming to the shopping centre.[25]
  9. [22]
    During cross-examination, Ms Nichols was taken to the accounting records of the business. The profit and loss statement for the period July 2009 to June 2010 and the balance sheet as of June 2010 were explained to be from the “MYOB” system and entered by Ms Nichols or her bookkeeper. The “Somerville + Smith Business Brokers” footer came about when the attempt was made to see if the business might be sold but they had not done more than add the footer to the information from the MYOB system of Zacsam.[26] In relation to the usefulness of this accounting information, it must be appreciated that the “MYOB” system did not include any allowance for depreciation and the balance sheet has, under “Assets”, a suspense item of minus $9,242.89. Under “Liabilities” it has a suspense item of minus $155,069.97. “Directors Loans” is shown under “Liabilities” as a minus $53,083.93.[27]
  10. [23]
    The Profit and Loss Statement for the period July 2010 to June 2011 shows an operating profit of minus $31,688.82[28] and the balance sheet, under “Assets”, a suspense figure of minus $11,600.93. Under “Liabilities”, there is a suspense figure of minus $30,081.32. Retained earnings are shown as minus $108,328.17 and current year earnings as minus $62,106.78.
  11. [24]
    Total sales for the 2009-2010 financial year are shown as $692,254.72 with total cost of sales as $215,490.33.[29] Total sales for the 2010-2011 financial year are shown as $577,416.70 and total costs of sales as $284,097.89.[30] Ms Nichols said that the $284,097.89 figure could be an error.[31] Depreciation is not included in these accounts.[32]
  12. [25]
    The 2008 and 2009 figures have been checked by accountants and allowances made for depreciation.[33]
  13. [26]
    It is useful at this point to refer to the 2008 and 2009 figures. The accounts for the financial year ended June 2008 naturally only reflect the period from the start of business in March 2008. The profit and loss statement shows depreciation in the amount of $18,709. The total sales of $250,878.10 had a total cost of sales of $94,515.61.[34] The profit and loss statement for the financial year ended June 2009 shows total sales of $598,632 and a total cost of sales of $255,632. Depreciation was $64,390.[35] The balance sheet shows total assets of $368,887 compared to $465,324 for the 2008 year.[36]
  14. [27]
    Comparing 2009 to 2010, total sales went from $598,632 in 2009 to $692,254.72 in 2010. Total cost of sales went from $255,632 in 2009 to $215,490.33 in 2010. Sales went up by $93,622.72 while cost of these sales went down by $40,141.67. Costs were reduced due to changing to suppliers of cheaper products.[37] In the part of the 2008 financial year that the business operated, total sales of $250,878 were recorded, along with total cost of sales of $94,516.[38]
  15. [28]
    Ms Nicholls was also taken in cross-examination to exhibit 2, tab 6, annexure 5. It is a table, by week and financial year, of numbers of transactions, average transaction amounts and net sales. It shows an initial spike in transactions at the commencement of the business from 1,070 in week 38 of 2008 financial year to the high point of 1,279 in week 39. Looked at broadly, it shows a decline until an improvement in the 2010 financial year and then a decline until the end of trading in the 2012 financial year. An increase in the average dollar amount of the transactions is reflected in the net sales figures. The table was provided by the franchisor.[39]
  16. [29]
    The table shows the following:

Financial year 2008

Net sales $238,526.13; Transaction count 14,292;  Transaction average $16.69.

Financial year 2009

Net sales $650,572.32; Transaction count 37,595; Transaction average $17.30.

Financial year 2010

Net sales $726,716.03; Transaction count 36,469; Transaction average $19.93.

Financial year 2011

Net sales $605,977.26; Transaction count 28,674; Transaction average $21.13

Financial year 2012

Net sales $278,246.19; Transaction count 13,075; Transaction average $21.30.

  1. [30]
    In re-examination, Ms Nichols’ attention was directed to the point on the table where the roadworks commenced, 10 May 2010,[40] and exhibit 11, the Business Finance Agreement, was tendered.
  2. [31]
    Mr Raymond Lionel Kingston was called by the applicant. He confirmed his affidavit.[41] He is a director of Mekpine Pty Ltd, which leases premises in the shopping centre for its business of an IGA supermarket. During the period May 2010 to June 2011, the time of the roadworks, he worked as the finance and administration manager of the supermarket, usually 16 hours per day for 7 days a week. He states that the roadworks had a “devastating impact”[42] on his regular customer traffic and that of the other businesses in the shopping centre.[43]
  3. [32]
    Mr Kingston made close observations of the roadworks and a proper appreciation of them requires setting out the relevant part of his affidavit. It is as follows:

“8. Between May 2010 and June 2011 the Respondent conducted a large scale road works project on Dohles Rocks Road and Ogg Road and surrounding roadways in Murrumba Downs:

  1. (a)
    From 13 May 2010 and continuing for a period of approximately 6 weeks until late June 2010 the Respondent constructed the balance of McClintock Drive by completing road works consisting of road upgrading and road making between Dohles Rocks Road and Ogg Road. I personally observed the following effects of the McClintock Drive road works:
  1. (i)
    The diversion of some westbound traffic from exiting the Bruce Highway by the Dohles Rocks Road turnoff. Traffic instead would use the turnoff further north at the Anzac Avenue exit. This resulted in a significant reduction in traffic that passed Zacsam’s Eagle Boys shop on Dohles Rocks Road.
  1. (ii)
    Delays were caused by the road works being undertaken at and around the intersections of Blackall Road and Ogg Road and McClintock Drive for traffic travelling south to the location of the Castle Hill Shopping Court on Dohles Rocks Road from the northern parts of Murrumba Downs;
  1. (iii)
    Delays were caused by the road works being undertaken at and around the intersection of Entry Parade and McClintock Drive for traffic attempting to exit the Lakeside housing estate and travel to the Castle Hill Shopping Court on Dohles Rocks Road;
  1. (iv)
    A significant reduction in the traffic that passed the location of the Castle Hill Shopping Court’ and
  1. (v)
    Upon the completion of the McClintock Drive road works, McClintock Drive re-opened causing the diversion of westbound traffic away from Dohles Rocks Road to Goodfellows Road, Blackall Road and Ogg Road via McClintock Drive. This diversion caused a significant reduction in the traffic that passed the location of the Castle Hill Shopping Court.
  1. (b)
    From 15 June 2010 and continuing for a period of approximately 12 months to June 2011 the Respondent performed road works at and around the intersection of Dohles Rocks Road and Ogg Road (‘the intersection’) which consisted of:
  1. (i)
    The removal of the concrete pedestrian footpath, earthworks, drainage works, road widening and curbing and channelling on the land that ran parallel with Dohles Rocks Road and Ogg Road adjacent to the Castle Hill Shopping Court which caused:
  1. (A)
    the blockage of the previous multiple pedestrian access points to Castle Hill Shopping Court;
  1. (B)
    the blockage of pedestrian access to the Castle Hill Shopping Court;
  1. (C)
    the significant impediment of pedestrian access to the Castle Hill Shopping Court;
  1. (D)
    the removal of motorised scooter access to Castle Hill Shopping Court;
  1. (E)
    the continuing and permanent removal of the popular casual parking area on the land that ran parallel with Dohles Rocks Road adjacent to the Castle Hill Shopping Court;
  1. (F)
    the continuing and permanent removal of the popular roadside parking along both the northern and southern sides of Dohles Rocks Road previously convenient for casual access to the Castle Hill Shopping Court;
  1. (G)
    Major delays for traffic passing the location of the Castle Hill Shopping Court;
  1. (H)
    Diversions of westbound traffic from exiting the Bruce Highway by the Dohles Rocks Road turnoff to exiting further north at the Anzac Avenue exit;
  1. (I)
    A significant reduction in the number of pedestrians and traffic that passed the location of the Castle Hill Shopping Court; and
  1. (J)
    A significant reduction in the number of pedestrians and traffic that entered the Castle Hill Shopping Court.
  1. (ii)
    From September 2010 and continuing for approximately 8 months to May 2011, I am aware from my own observations that there was a removal of the traffic lights at the intersection and the installation of a temporary roundabout at the intersection and the placement of concrete barriers along the northeast side of Dohles Rocks Road leading in to the intersection. This caused:
  1. (A)
    Significant impediment of access to the Castle Hill Shopping Court for pedestrians coming from the northern and eastern sides of the intersection from the local school, learning centre, retirement village and residential areas;
  1. (B)
    Decreased night time visibility at the intersection because of a lack of proper lighting;
  1. (C)
    A significant rise in the frequency of motor vehicle accidents at and around the roundabout at the intersection (approximately 10 accidents in the eight month time period the roundabout was installed);
  1. (D)
    Major delays for traffic passing the location of the Castle Hill Shopping Court; and
  1. (E)
    A significant reduction in the number of pedestrians and traffic that passed or entered the Castle Hill Shopping Court.
  1. (iii)
    From June 2010 to June 2011 road works were performed on the southern side of the intersection on Ogg Road which, in my observations, caused:
  1. (A)
    The frequent reduction of lanes from two lanes to one lane with traffic passing both ways in one lane;
  1. (B)
    The lowering of the road surface that caused intermittent flooding of Ogg Road adjacent to the Castle Hill Shopping Court during times of moderate rainfall;
  1. (C)
    The partial blockage of Ogg Road driveway entrance to the Castle Hill Shopping Court;
  1. (D)
    Major delays for traffic passing the location of the Castle Hill Shopping Court;
  1. (E)
    Diversion of traffic away from the location of the Castle Hill Shopping Court;
  1. (F)
    A significant reduction in the number of pedestrians and traffic that passed the location of the Castle Hill Shopping Court; and
  1. (G)
    A significant reduction in the number of pedestrians and traffic that entered the Castle Hill Shopping Court.
  1. (c)
    From 16 September 2010 and continuing for a period of approximately 8 months to May 2011 the closure of Ogg Road on the northern side of the intersection which, in my observations, caused:
  1. (i)
    The complete blockage and diversion of traffic travelling from the residential areas on the northern side of the intersection towards the Castle Hill Shopping Court;
  1. (ii)
    Major delays for traffic passing the location of the Castle Hill Shopping Court;
  1. (iii)
    A significant reduction in pedestrians and traffic that passed the location of the Castle Hill Shopping Court; and
  1. (iv)
    A significant reduction in the number of pedestrians and traffic that entered the location of the Castle Hill Shopping Court.
  1. (d)
    From 11 February 2011 and continuing for approximately 4 months to the end of May 2011 all traffic was shifted from the previously existing section of Dohles Rocks Road (the southern side directly adjacent to the Castle Hill Shopping Court) to the newly constructed road along the northern side of Dohles Rocks Road which caused:
  1. (i)
    Major delays for traffic passing the Castle Hill Shopping Court;
  1. (ii)
    A significant reduction in the traffic that passed the Castle Hill Shopping Court;
  1. (iii)
    The creation of a significant height differential between the northwest bound lanes and the southeast bound lanes of Dohles Rocks Road of approximately 300mm that prevented many motor vehicles from accessing the Dohles Rocks Road driveway into the Castle Hill Shopping Court except for four-wheel drive type vehicles; and
  1. (iv)
    A significant reduction in pedestrians and traffic that passed the Castle Hill Shopping Court; and
  1. (v)
    A significant reduction in the number of pedestrians and traffic that entered the Castle Hill Shopping Court.
  1. (e)
    During December 2010 and between February 2011 and June 2011 night road works were performed on Dohles Rocks Road adjacent to the Castle Hill Shopping Court from approximately 6:30 pm onwards that caused:
  1. (i)
    significant impediment to customer access to the Castle Hill Shopping court during dinner time trading hours;
  1. (ii)
    Major delays for traffic passing the Castle Hill Shopping Court;
  1. (iii)
    A significant reduction in pedestrians and traffic that passed the Castle Hill Shopping Court; and
  1. (iv)
    A significant reduction in the number of pedestrians and traffic that entered the Castle Hill Shopping Court.”
  1. [33]
    His affidavit, which substantially mirrors that of Ms Nichols, goes on to state:

“10. The road works project made it very inconvenient for customers to use the surrounding roadways and difficult for customers to access the Castle Hill Shopping Court. I know this because my own access was restricted in the manner as I have outlined above.

  1. I experienced (as did our staff) a lack of reliable access to parking areas. Further, there were usually a large number of the respondent’s contractors’ motor vehicles using the car parks and thereby reducing available parks for staff and the customers.
  1. I was personally involved in a plethora of customer / shopkeeper / delivery driver complaints relating to the above-mentioned issues with their access and parking.
  1. The result was that I experienced a significant reduction in customers in both the IGA Supermarket and the Castle Hill Shopping Court in general during the road works. The sustained nature of the road works also contributed to a lingering shift in customer shopping patterns away from the Castle Hill Shopping Court.
  1. In 2011 Mekpine made a claim for compensation against the Respondent in the Land Court of Queensland relating to the above matters. Those proceedings have not yet been resolved.”
  1. [34]
    In cross-examination, Mr Kingston explained that he had stood at various road corners and observed the diversion of traffic.[44] Even after the roadworks had been completed, Mr Kingston heard from customers using scooters for people with disabilities that they felt that access to the shopping centre was less satisfactory than it had been before the roadworks.[45] There is a new scooter and wheelchair ramp in Ogg Road now.[46] There were impediments to access at the crossover in Dohles Rocks Road on multiple occasions.[47] Vehicular access from Ogg Road was impeded on multiple occasions also.[48] There were no occasions when all pedestrian access to the shopping centre was closed off.[49]
  2. [35]
    In re-examination, Mr Kingston said that a new temporary roundabout that was part of the roadworks was changed three to five times.[50] He stated that the footpaths needed to be changed multiple times.[51] There were at least two design changes to the roundabout.[52]
  3. [36]
    Mr Paul Dominic Green, a chartered accountant, was called on behalf of Zacsam. He prepared a report[53] and participated in the preparation of the joint report.[54] His report supports Zacsam’s claim.[55] Mr Green has assessed the loss of marginal profits of the business by using the number of lost sales multiplied by the expected price per transaction. He has deducted the cost of goods sold and overhead cost savings.[56]
  4. [37]
    Mr Green has arrived at the loss of capital value by the difference between what the business could be sold for, but for the matters complained of in the present proceeding, and the current value of the franchised business, which no longer exists.[57] He has made assumptions, including that the business would have continued to grow to an annual turnover of approximately $1,000,000 if not for the matters complained of in the current proceeding. He has also assumed that the management accounts are materially accurate and that the transaction data is correct.[58]
  1. [38]
    Mr Green expresses the opinion that, as a result of the roadworks, Zacsam no longer has a business and accordingly has suffered a capital loss of $420,000.
  2. [39]
    In cross-examination, Mr Green was directed to his report where he stated that the most widely used methods of valuing a business were the earnings-based and the assets-based approaches.[59] He did not use either of those methods.[60] He considered that there was a market for these franchises[61] and applied his own knowledge gained from valuing businesses for banks in connection with lending money to them.[62] He stated that he had considered sales of franchises but there is no assessment of any sales in his report.[63]
  3. [40]
    Mr Green drew on his knowledge both of the cost of a new franchise and his knowledge of the desirability of a business that “has a track record of substantial growth, which this business had”.[64] He said that those types of businesses will sell anywhere from $360,000 to $750,000.[65] By “an amalgamation of” “concepts, thoughts and experience” he “felt” that the business was worth at least $420,000 on the open market.[66]
  4. [41]
    Mr Green was not informed of the attempt to find a buyer for Zacsam so has not considered that in arriving at his valuation.[67]
  5. [42]
    In undertaking his assessment, Mr Green has assumed that the financial statements have been prepared in accordance with proper accounting standards[68] and are materially accurate.[69] He did not use the opening sales numbers as he thought they were “overinflated”.[70] Apart from that, he relied on the sales data as his starting point.[71]
  6. [43]
    The summary of profit and loss statements[72] shows the following operating profit or loss before tax:

2008 financial year  $34,590 loss

2009 financial year  $108,086 loss

2010 financial year  $67,327 profit

2011 financial year  $31,688 loss

  1. [44]
    Mr Green explained that in relation to the 2010 financial year “I assumed a profit but this – this profit is a pre-depreciation charge of $67,327”.[73] Unlike the 2008 and 2009 figures, provided by accountants and including depreciation, the 2010 figures are derived solely from the “MYOB” system and do not include depreciation. Mr Green agreed that properly prepared accounting figures would be expected to adopt the carried-forward loss from the previous year.[74] The “MYOB” balance sheet as at June 2010 shows “Retained Earnings” as minus $54,327.29. This is about half of the accountant’s figure of $108,086 for the 2009 financial year. This makes Zacsam look about $54,000 better off than the accountant’s records show.[75] Depreciation, which was $64,390 in 2009[76] is not allowed for in 2010.[77] The June 2010 balance sheet has the negative $155,069.97 “Suspense” item under “Liabilities”, which should be an asset,[78] but its composition is unknown.[79] The “Suspense” of negative $9,242.89 under “Assets” is an unknown.[80]
  2. [45]
    Mr Green agreed that, on the face of the “MYOB” records, more information would be required before they could be relied on.[81] He agreed that, as an accountant properly considering the matter, he could have no confidence that this business ever achieved a profit at all in the entire time that it had been operating.[82] Mr Green used a sales figure for 2009 of $650,000 while the financial records show a figure of $598,000.[83] The accountant’s profit and loss statement for the financial year ended June 2008 shows total sales and total income as $250,878.10[84] while the net sales for the same period is shown as $238,526.13 from the franchisor’s records.[85] Total sales for the 2011 financial year are shown as $577,416.70 in Zacsam’s “MYOB” system[86] while the table of information from the franchisor shows $605,977.26. This is a discrepancy of $28,560.56.[87]
  1. [46]
    Mr Green said:

“Well, the difficulty with this matter is you’ve only got a little bit of pre-roadworks data to work with.”[88]

For that reason he had used a 5% growth in transaction numbers and a 3% growth in revenue per transaction.[89] He has adopted 8%, saying:

“Now, the only data I’ve got is that between 2009 and 2010 the total revenue grew by 11 per cent.”

…

“there’s risk to my analysis, of course, because I might’ve just – that might’ve been a lucky year. I don’t know.”[90]

  1. [47]
    With revenue growth of 11% and population growth in the area, he thought that the business had very good prospects.[91]
  2. [48]
    In re-examination, Mr Green said that in these sorts of businesses the overhead costs are fairly stagnant and the real driver is revenue and gross profit.[92] The drop in business after the initial opening figures was expected[93] and, up until the roadworks the sales were trending up.[94] Pizza sales are bad at Christmas and good during football seasons.[95] From about week 40 in 2009, revenue was trending up.[96] During and after the roadworks there was a decline.[97]

Witnesses called on behalf of the Council

  1. [49]
    Evidence was given by Mr Paul Arthur Hilton, a senior project manager for the Council. He confirmed his affidavit.[98] The relevant parts of his affidavit are worth setting out as they explain the roadworks from the Council’s perspective:

“2. Between May 2010 and July 2011 I was the project manager on the Dohles Rocks Road, Ogg Road and McClintock Drive upgrade.

  1. At no stage during that entire project was access to the Castle Hill shopping centre blocked.
  1. I recall two occasions the Dohles Rocks Road access to the shopping centre was blocked however on those occasions access could be gained from Ogg Road and signs were erected to direct customers to the Ogg Road entrance. Those occasions and approximate length of time of those blockages are discussed later in this affidavit.
  1. Exhibited at pages 1-3 of ‘PAH1’ to this affidavit is a timeline of the project I have prepared.
  1. Exhibited at page 4 of ‘PAH1’ to this affidavit is a Nearmap aerial photo from 8 June 2010 shortly before the work commenced. That photo depicts in relation to Dohles Rocks Road:
  • a generally north-west/south-east alignment;
  • a single carriageway in each direction;
  • a median strip directly opposite the driveway into the shopping centre restricting access to left in and left out;
  • a turning lane for vehicles to enter into and exit from the shopping centre;
  • a left and right entry exit on Ogg road.
  1. Exhibited at page 5 of ‘PAH1’ to this affidavit is a Nearmap aerial photo from 7 September 2010 which demonstrates work having commenced on the northern side of Dohles Rocks Road. The works program that was followed was the northern side of Dohles Rocks Road. The works program that was followed was the northern side of Dohles Rocks Road was constructed first. Services such as stormwater, sewerage and telecommunication cables were laid on the northern side. An asphalt base was laid over that and then topped with an asphalt wearing course. Ordinarily the base is a gravel mix which is compacted. On this job an asphalt base was used which has the advantage of being quicker to construct although more expensive. There was no disruption to the Castle Hill shopping centre access at that time.
  1. When work was occurring on the northern side of the road, traffic was diverted onto the south side of the road. There was no impediment to entering the Castle Hill shopping centre during that work.
  1. The roadworks on the northern side occurred from June 2010 until January 2011. During this period works also occurred on the southern side of Dohles Rocks Road near the Ogg Road intersection, that being drainage construction and road base construction. The drainage work entailed bringing the stormwater drainage from the northern side, passing it through the southern side of the intersection and into Ogg Road. That work occurred at night. Steel road plates were laid over the work area during the day to allow cars to pass over it. The road work that occurred was at the site of the resumption where the kerb expanded out. That footpath and the grass strip was removed and asphalt road base laid. During this work there was no disruption to either the Dohles Rocks Road or Ogg Road entrances and the traffic which had been diverted to the southern side of Dohles Rocks Road was not impacted.
  1. The day shift finished at about 4pm so as work would not impede the afternoon peak traffic. Night works commence from about 6.30pm/7pm depending on the traffic and last until 5am. Night work entails a new crew coming on site. There is a set up period which entails putting up lights, setting up traffic control and removing steel road plates by crane. That generally takes an hour. The reason we do night work is to minimise disruption to businesses and also to catch up if there have been delays. This job did suffer rain delays. The disruption to business during night works was minimal and we were cognisant that the peak period for the Eagles Boys Pizza and the fish and chip shop was early evening as I had been told that by the business operators.
  1. In October 2010 the traffic signals at the intersection of Dohles Rocks Road and Ogg Road were removed and a temporary roundabout installed.
  1. In January 2011 roadwork on the northern side of Dohles Rocks Road had largely finished. The traffic was shifted from the south side of the road to the newly constructed work on the north side of the road in February 2011. Roadwork on the south side occurred from February until June 2011. There were rain delays during this time so some of the work occurred at night.
  1. During this work a ramp was set up from the Dohles Rock Road driveway of the shopping centre to the north side of the carriageway.
  1. There are a number of houses neighbouring the Castle Hill Shopping Centre to the east. Laying of the road base outside those residences occurred at night with ramps set up over the work during the day to minimise inconvenience to the residents. As we were attempting to minimise disruption to the shops it is likely we used the same process outside the Castle Hill Shopping Centre although I cannot now be sure. If the Dohles Rocks Road entrance was closed for any period, the Ogg Road entrances (sic) would still have been open.
  1. Laying the new asphalt road base on the southern side of Dohles Rocks Road concluded in March 2011. From that time traffic could use both sides of the road although work was still occurring, such as the installation of signals at the intersection in April 2011 and traffic island work.
  1. Exhibited at page 6 of ‘PAH1’ to this affidavit is a Nearmap aerial photo from 26 May 2011. There is no aerial photo from Nearmap available between 7 September 2010 and 26 May 2011. This photo depicts the construction of the traffic island on Dohles Rocks Road. This is the step before the asphalt wearing course is laid with the final step being the line marking. The road surface in this photo is the asphalt base. Work is occurring in the middle of the road with traffic diverted around the work. Dohles Rocks Road is effectively operating as a single lane in each direction with no disruption to the Castle Hill Shopping Centre. On Ogg Road kerbing work is taking place up to but not impeding the entry/exit to the shopping centre.
  1. Exhibited at page 7 of ‘PAH1’ to this affidavit is a Nearmap aerial photo from 17 June 2011. It depicts the asphalt wearing course having been laid. The wearing course was laid directly over the asphalt of the left turn lane into the shopping centre which had not been relaid. The entrance to the shopping centre on Dohles Rocks Road was closed when the wearing course was being laid on the left turn lane. The laying and cooling of the wearing course is a quick process, taking not more than half a day.
  1. The aerial photo from 17 June 2011 shows footpath and driveway work occurring at the Ogg Road entrance to the shopping centre. The shopping centre’s driveway to Ogg Road was reconstructed as part of the project to bring it up to the level of the new roadwork and to fix some drainage issues. That work was done by working on half of the driveway and allowing cars to enter and exit using the other half. When the work on one side was finished, it swapped over to the other half and allow cars to use the finished side.
  1. The aerial photo from 17 June 2011 also shows the line-marking work has been completed on Dohles Rocks and Ogg Roads. When linemarking work was occurring on Dohles Rocks Road, the Dohles Rocks Road entrance would be shut although for a shorter period than when it was shut for laying the wearing course. Again, the Ogg Road entrance was available. Similarly, when the linemarking work was occurring on Ogg Road, that entrance would be shut but the Dohles Rocks Road entrance would be open.
  1. Exhibited at page 8 of ‘PAH1’ to this affidavit is a Nearmap aerial photo from 7 July 2011 showing the completed work.
  1. [50]
    In cross-examination, Mr Hilton explained that there were inspectors on site and that he was not always on site.[99] He managed this project and another one at McClintock Drive, Murrumba Downs,[100] which is nearby. Mr Hilton said that entry to and exit from the shopping centre was never stopped[101] but was made more onerous.[102] The traffic volumes were never such that there was queuing at the driveways.[103] Traffic could just use the next driveway.[104] He said that drivers may have chosen to use McClintock Drive[105] although he did not agree that there was a traffic jam around the shopping centre.[106]
  2. [51]
    There were temporary footpaths and a temporary roundabout.[107] The roundabout was modified to facilitate the progressing roadworks.[108] Mr Hilton accepted that the schedule of works exhibited to his affidavit did not include all details of the works.[109] In fact there were significantly more works.[110] He agreed that these were major works[111] and that a driver might choose to turn right onto McClintock Drive and head north away from this shopping centre.[112]
  3. [52]
    Mr Hilton said that he had observed traffic flow in the area at peak times,[113] although traffic counts were not conducted.[114] The work on McClintock Drive was completed by late August 2010, before the intersection at Dohles Rocks Road and Ogg Road was changed.[115]
  4. [53]
    In re-examination, Mr Hilton explained that McClintock Drive is three or four hundred metres or so from the shopping centre.[116] The work on McClintock Drive was done so as to enable traffic to reach Ogg Road as a section of it had been closed for works at the school and the Council’s swimming pool.[117] Ogg Road was closed from Dohles Rocks Road northwards for a distance.[118] The closure of this section of Ogg Road, so that the intersection of Ogg Road and Dohles Rocks Road was affected, occurred in October 2010.[119] There were times when one of the shopping centre driveways was closed by works but none when both were.[120]
  5. [54]
    The Council called Mr Robert Anthony Leavy, a forensic accountant. Mr Leavy produced his report[121] and a joint report with Mr Green.[122] Mr Leavy has assessed Zacsam’s total economic loss at $121,998,[123] which is the amount of the advance paid to Zacsam.[124] Mr Leavy states in his report that in the absence of profit and loss statements and balance sheets prepared by accountants for the 2010, 2011 and 2012 financial years, he has calculated loss of profits based on the weekly sales and monthly activity reports.[125]
  6. [55]
    Mr Leavy looked for losses that are direct and natural consequences of the taking of the land.[126] He considered that the business was too highly geared[127] so that it was already insolvent prior to the roadworks.[128] If the business had to be terminated due to insolvency then, in his view, that was not due to the roadworks but to the existing condition of insolvency which predated the roadworks.[129]
  7. [56]
    In cross-examination, Mr Leavy was taken to the joint report where it referred to Mr Green’s belief that the business had strong year-on-year growth.[130] He disagreed that this was so.[131] Mr Leavy was of the opinion that, when the landlord broke the lease Zacsam was free of any liability for rent after that.[132] Mr Leavy was shown the graph of seasonally adjusted turnover in dollars per week.[133] This shows the initial spike in business on first opening and tracks its history thereafter. Also shown the figures in Ex 2 Tab 6 at page 37, Mr Leavy agreed that there was a trending up of net sales until the roadworks[134] and a trending down thereafter.[135]
  8. [57]
    Mr Leavy produced a supplementary report.[136] In that report, he has reassessed the total loss of net profits as $163,987.[137] He expressed the opinion that losses from July 2011 to 22 January 2012 would appear to include losses due to something other than the roadworks.[138] He said that there must be some other factor, since he could not see why sales should trend down dramatically once the roadworks were completed.[139] When he was asked if it might have been because of the damage done, he said that this was a possibility.[140] His instructions from the Council were that, after the roadworks, the area was left in a better state than before[141] but he did accept that customers who had found it too hard to get in there might not return.[142] Mr Leavy said that, if the Court did not accept that there was a loss resulting from other than the roadworks, the loss of profits would be $163,987.[143]
  9. [58]
    Mr Leavy was asked about the test he applied in relation to the business being, in his view, insolvent. This was a balance sheet insolvency test.[144] He was referred instead to the test in s 95A of the Corporations Act 2001, which provides that:
  1. “(1)
    A person is solvent if, and only if, the person is able to pay all the person’s debts, as and when they become due and payable.
  1. (2)
    A person who is not solvent is insolvent.”[145]
  1. [59]
    Mr Leavy was of the view that he did not believe he had said that the business was insolvent.[146] In fact, he had done so in his first report.[147] He had assessed the loss of capital value at Nil because the business was failing.[148] Mr Leavy said that if a business runs down in value by making losses, it cannot possibly end up with a goodwill value.[149] There was no goodwill value, so the business was worthless.[150]

Submissions for the Council

  1. [60]
    The Council, as the constructing authority and a model litigant, accepted that uncertainties have to be determined in favour of Zacsam.[151] It was pointed out that after the roadworks ceased, the number of transactions continued to decline.[152] The explanation put forward on behalf of Zacsam is that those who went away would continue to stay away.[153] This does not account for a continued decline, though.[154]
  2. [61]
    The seasonally-adjusted turnover figures showed that the business was in decline some five months prior to the commencement of the roadworks.[155] The transaction numbers went consistently down.[156] The suspense items in the balance sheets were pointed to, as were the absence of allowances for depreciation in the figures not prepared by accountants. The business, it was submitted, was not extinguished but in fact operated until the franchise expired.
  3. [62]
    The Court was referred to the decision of the New South Wales Court of Appeal in Makita (Australia) Pty Ltd v Sprowles[157] at paragraphs 67 and 68 where Heydon JA explained the importance of expert witnesses exposing the basis of their opinions so that the Court is able to assess the opinions and their value. This was relevant to Mr Green’s opinions. It was particularly stressed that he did not produce comparable sales in order to show comparative value.[158]
  4. [63]
    The Court was reminded that the data in the “MYOB” records was such that more would need to be discovered before it could be relied on.[159] The first, brief, loan of $35,000 was repaid promptly and the second, for $165,000, was repaid in September 2011, four months before the business was sold.[160]
  5. [64]
    In relation to the claim for rent, reference was made to exhibit 4 and exhibit 9. Exhibit 9 records the agreement that at 31 January 2012 Zacsam’s debt was $56,634.07 for rent, interest and GST.[161] Exhibit 4 shows that from approximately 1 February 2012 until 17 March 2013, rental payments of $24,828.87 were made. It was submitted that, accordingly, rental liability must be $56,634.07 minus $24,828.87,[162] which is $31,805.20 if there is any rent liability, which Council disputes. It was also submitted that there was no explanation in the evidence for why only four rental payments were made for the 12 months that exhibit 4 showed Keyjan EB Pty Ltd (Keyjan) ran the business.[163]
  6. [65]
    The Council directs attention to the claim by Zacsam as being almost double its cost of establishing the business. It accepts that the roadworks would have caused some inconvenience and disruption of the business but that lost marginal profits would be $67,532. There would be no reason, it submits, that the roadworks would cause further decline in business after they had been completed and no basis upon which to conclude that they caused the business to cease many months later when, in fact, the franchise expired. Keyjan operated the business from January 2012 until 17 March 2013. There is no evidence before the Court about the performance of the business in this period.
  7. [66]
    The number of transactions of the business declined from its early days until it ceased. The increase in revenue was due to the increase in the value per transaction. There is no basis, it was submitted, for Zacsam to claim loss of profits for any period after 17 March 2013 when the franchise agreement expired. Mr Green made his calculations up to 28 February 2014.[164] It was also submitted that the capital value of the business cannot be ascertained by reference to its set-up cost. The proper approach would be the capitalisation of future maintainable earnings, of which Zacsam had none. It is inconsistent, and not allowable, for Zacsam to claim both the capital value of the business at the date it ceased business and also lost profits after then. Equally, it cannot claim compensation for rent liability after business ceased, as well as the capital value of the business and lost profits after the business ceased, as rent liability is part of assessing the capital value of the business and its loss of profits.
  8. [67]
    The Council maintains that Zacsam would be entitled to lost marginal profits during the roadworks of $67,532. If it experienced further loss after that, it could not exceed a further $96,455, as assessed by Mr Leavy.[165] In all, this is $163,987. The Council accepts that $9,748.20 should be paid in respect of the costs of preparing its claim for compensation. It does not dispute that interest should be paid to Zacsam but that the advance of $121,998 paid on 24 October 2014 should be taken into account.
  9. [68]
    The Council submits that if compensation is only payable for disturbance losses during the roadworks, it should be at the rates published by the Court from 1 January 2011. If it is to continue until the date business ceased, it should be at the rates published by the Court from 15 March 2011.

Submissions for Zacsam

Rental

  1. [69]
    In oral submissions, counsel for Zacsam chose to deal with the rent liability question first. Referring to exhibit 4, this claim is for $12,621.02 in respect of February and March 2012, plus $78,754 for the period 17 March 2012 to 16 March 2013. This is $91,375.46 (sic) in total. Deducted from this is the $24,828.87 rent paid, leaving the amount claimed as $66,546.59. It was submitted that Mr Leavy was incorrect in proceeding on the basis that rent liability ended when the landlord re-took possession of the premises, exhibit 9 showing that Zacsam had mitigated its loss by entering into this agreement that the rent will not be pursued while the present case continues. Mr Leavy had agreed that, if his view in regard to the rental obligation was incorrect, so too would be his conclusion on the point.[166]
  2. [70]
    Interest is sought on this as follows:

Principal

Period

Number of days

Interest rate

Interest

$66,547

16.03.13 to 31.12.14

655

3.75%

$4,478.24

$66,547

01.01.15 to 22.10.15

294

2.75%

$1,474.06

 

 

 

 

$5,952.30

  1. [71]
    The Court notes that the claim for interest is calculated to the date when submissions were heard. In order to achieve fairness, the interest, if awarded, ought to run until the principal, if awarded, is in fact paid.

Loss of Profits

  1. [72]
    Mr Green and Mr Leavy agreed that Zacsam has suffered a loss of profits.[167] Mr Green’s opinion, it was urged, is not invalidated by not setting out everything it was based on[168] and there was sufficient research demonstrated in support of it. It was submitted that Mr Leavy’s assumption that the business would recover once the roadworks had been completed, was not supported by any evidence. Additionally, it was pointed out that there was no evidence that failure of the business was due to anything other than the roadworks, Mr Leavy’s resort to the idea that there must have been something else not providing a proper basis for such a conclusion to be drawn. Accordingly, his conclusion ought not to be relied upon. The claim made by Zacsam for this category of loss is $137,628.16.[169] This is calculated as follows and is for the period from the start of roadworks on 1 May 2010 to cessation of business on 22 January 2012.

1 May 2010 to 30 June 2010 $17,012.00

1 July 2010 to 30 June 2011 $76,678.00

1 July 2011 to 22 January 2012 (205 days) $43,938.16

$137,628.16[170]

  1. [73]
    This sum is going to be reduced on account of the advance of $121,998 paid on 24 October 2014, leaving a balance under the loss of profits claim of $15,630.16.
  2. [74]
    Zacsam does not seek to rely on Mr Leavy’s calculation that the loss of profit could be $163,987.[171] In coming to that figure, he had been of the view that, after the completion of the roadworks, “some other factor” must have been operating.[172] As there was no basis shown for this, it was submitted that it should not be relied on and Zacsam did not rely on it.
  3. [75]
    Interest is sought, taking into account the advance paid, as follows:

Principal

Period

Number of days

Interest rate

Interest

$137.628.16

22.01.12 to 28.10.14

1010

3.75%

$14,281.27

$15,630.16

(after the advance)

29.10.14 to 31.12.14

63

3.75%

$101.16

$15,630.16

01.01.15 to 22.10.15

294

2.75%

$346.21

 

 

 

 

$14,728.64

  1. [76]
    Again, interest ought to accrue until the sum due is paid, if it is awarded.

Loss of capital value of the business

  1. [77]
    Mr Green found the $420,000 paid for the franchise to be the correct value of the business.[173] Mr Green had also looked at what such franchises are for sale for.[174] He also considered that it would fall within a range of $362,000 to $575,000.[175]
  2. [78]
    It was submitted that Mr Leavy applied the wrong test in concluding that the business was insolvent, the correct test being s 95A of the Corporations Act 2001. If that is so, Mr Leavy did not identify any debt that Zacsam was unable to meet so there was no evidence of insolvency. Mr Green was of the opinion that the business was not insolvent at the start of the period when it was disturbed by the roadworks.[176]
  3. [79]
    The transaction count was submitted to be misleading if looked at in isolation, as the net sales figures showed a contrary position.
  4. [80]
    Mr Green was of the opinion that Zacsam would be able to sell the franchise for at least the price paid for it, $420,000. As a result of the roadworks it no longer has a business so it has suffered a capital loss of $420,000.[177] This can be contrasted with Mr Leavy’s second report where he states that business losses up to 30 June 2009, almost a year before the roadworks commenced, had run the value of the business down to $142,616.[178] The loss, he opined, was in goodwill.[179]
  5. [81]
    In response to Mr Leavy’s approach it was submitted that he had entirely ignored the value of the assets of the business.
  6. [82]
    Interest is sought on the loss of value of the business as follows:

Principal

Period

Number of days

Interest rate

Interest

$420,000

22.01.12 to 31.12.14

1074

3.75%

$46,343.83

$420,000

01.01.15 to 22.10.15

294

2.75%

$9,303.28

 

 

 

 

$55,647.11

  1. [83]
    Once again, interest ought to accrue until the award, if made, is actually paid.
  2. [84]
    The claim is based on s 20 of the Acquisition of Land Act 1967 and the items claimed are said to be damage caused by the exercise of the statutory powers of the Council as constructing authority injuriously affecting Zacsam. Reference was made in this regard to LGM Enterprises Pty Ltd v Brisbane City Council.[180] There was no dispute that items of the nature sought could be claimed. It was, rather, whether there was a loss in relation to such an item or the amount of the loss.[181]
  3. [85]
    The point emphasised by counsel for Zacsam was the causal connection between the works performed by the Council and the loss sustained.[182]
  4. [86]
    It was submitted that significant weight should be given to the evidence of Ms Nichols and Mr Kingston. Both have a financial interest that is relevant; Ms Nichols in this case and Mr Kingston in another proceeding. It was also submitted that Mr Hilton was not credible in his refusal to concede that there was disruption caused.[183]

Consideration

The accounting evidence

  1. [87]
    As has been discussed already, only the financial statements for the 2008 and 2009 financial years have been prepared by accountants. They are themselves not completely consistent with the tax returns for those years.[184] Since the Council does not say that there is any discrepancy that is major or significant, no conclusion adverse to Zacsam is drawn in this regard and the Court accepts the reliability of the 2008 and 2009 financial figures.
  2. [88]
    The subsequent accounting information is of a different order. For example, the output of the “MYOB” system, does not include depreciation and has large sums held in “suspense”, in respect of which decisions need to be made in regard to accounting for those sums. These accounts may not be free of error.[185] These aspects have already been considered in detail and it is not necessary to repeat them. A simple illustration is the June 2010 balance sheet that shows retained earnings as minus $54,327.29, about half of the $108,086 which was the figure produced by the accountants for the 2009 financial year. This alone makes Zacsam look about $54,000 better off than shown by the accountant’s work. It is an unexplained difference. Mr Green agreed that the “MYOB” records, absent more information, could not be relied on.[186]
  3. [89]
    Depreciation, in 2009, was $64,390.[187] Were it of a like amount in 2010, it would of itself approximately nullify the $67,327 profit said to be made that year. Mr Green’s report, exhibit 2 tab 6, shows depreciation on page 33 in schedule 4.1. There is none after 2009. Page 34 of the same schedule shows the profit asserted for that year. The loss of $31,688 shown, on the same page, would be increased by an allowance for depreciation; there is none.
  4. [90]
    The result is that the yearly financial statements are not reliable after the 2009 financial year, and not comparable to 2009 either, due to the deficiencies which have been referred to in the later records. The cost of sales from year to year, in relation to the sales produced, was questioned by counsel. The explanation given by Ms Nichols was that this would have been due to changes in buying practices, products changing price and the business beginning to cut up vegetables itself.[188] Although it was submitted that this is unconvincing, the Court made careful observation of the witness and does accept the truthfulness of this evidence.
  5. [91]
    The profit and loss statement for the financial year ended June 2011 shows an operating profit of minus $31,688.02 (a loss),[189] while the balance sheet shows current year earnings of minus $62,106.78. There is a suspense of minus $11,600.93 in assets and a suspense of minus $30,081.32 in liabilities as well. Certainly the operating loss in the profit and loss account is inconsistent with the larger negative amount of current year earnings in the balance sheet and this is not explained or, on the material, consistent.
  6. [92]
    The June 2010 balance sheet, with its suspense of minus $9,242.89 under assets and suspense of minus $155,069.97 under liabilities[190] is noteworthy as it shows total assets as $371,525.59.[191] This is very close to the total assets for 2009 of $368,887, in the balance sheet prepared by the accountants.[192] The suspense of minus $155,069.97 in liabilities is effectively an asset but there is no explanation for what would increase assets so much and how the total assets could still be the same in 2010 as they were in 2009. Ms Nichols said that this entry might even be for expenses.[193] Its correct nature is unknown.
  7. [93]
    The 2010 balance sheet shows total equity as $4,653.38[194] when the retained earnings should have been, as has been discussed, minus $108,086 instead of the minus $54,372.29 shown. If the accountant’s figure was used, the retained equity as of June 2010 would have been minus $50,105.33 instead of the $4,653.38 shown.
  8. [94]
    The June 2011 balance sheet shows total equity of minus $170,440.45.[195] As submitted on behalf of the Council, if the possible errors reflected in the minus $155,069.97 are resolved, it is possible that the real equity which should be shown in the balance sheet for 2010 is much less. The 2011 balance sheet, if the suspense figures are correctly resolved, might also show a reduced equity. It must be emphasised that what this really illustrates is the extent to which these figures can properly be relied upon and does not demonstrate the correctness of any potential resolution of the uncertainties.
  9. [95]
    In view of all of the considerations to which reference has been made, it would not be possible for the Court to rely on the financial statements for the 2010 and 2011 financial years.
  1. [96]
    Attention may be usefully directed to the sales figures.[196] These show the numbers of transactions as follows:

Financial years

2008

15 weeks only

 

2009

 

2010

 

2011

 

2012

30 weeks only

14,292

37,595

36,469

28,674

13,065

The average value of transactions showed an increase:

$16.69

$17.30

$19.93

$21.13

$21.30

The total sales revenue was:

$238,526.13

$650,572.32

$726.716.03

$605,977.26

$278,246.19

The growth in revenue in 2010, despite a reduction in the number of sales, was due to the increased average value of each sale, which is unrelated to the roadworks. The business enjoyed a high number of transactions in its first four weeks of operating, over 1,000 per week. In its last 30 weeks of operating the transactions declined to a low of 338. It would not be safe to use those figures to attempt to estimate the number of transactions if the business operated for all of 2008 and 2012. It will be more reliable to look at the actual figures, although they provide only a relatively short period of operations before the roadworks. The economic joint report provides a graph of seasonally adjusted turnover.[197] Counsel for the respondent prepared an advocacy aid, which became exhibit 14 simply for document control purposes. Black lines drawn on it by counsel are submitted to indicate trends, up and down. This was accepted by counsel for Zacsam.[198] The evidence, taken together, indicates that before the roadworks the business was doing better than thereafter.

  1. [97]
    The Eagle Boys Pizza disclosure document[199] shows that in the period of about four years up to the document’s preparation in October 2007 not every franchise continued successfully,[200] 17 are shown as having ceased, often with the franchisee having decided to cease trading. Clearly, the business may have failed, quite apart from any influence by the Council in this case.
  2. [98]
    The Council does not dispute that the roadworks were likely to cause inconvenience such that some potential customers might have gone elsewhere. It does not accept that any decline in business after the roadworks was related to the roadworks.

The claim for loss of the capital value of the business

  1. [99]
    Zacsam’s claim for the loss of the capital value of the business must be considered in view of the fact that on or about 1 February 2012 possession of the business was taken by Keyjan EB Pty Ltd, which bought the business[201] and operated it until the franchise ran out and trading ceased on 17 March 2013. There is no evidence in respect of this period of trading.
  2. [100]
    Mr Green valued the business at $420,000 as at 28 February 2014.[202] He did not assess the asset value at the date the business ceased, or at the date it was sold. He did not assess future maintainable earnings nor did he compare it to sales of comparable businesses. His report acknowledges that the most widely applied methods of valuing a business are the earnings-based and the assets-based approaches,[203] neither of which he used. He relied heavily on the acquisition cost, did not set out comparable sales in his report where they could be assessed, but considered that the franchise could be sold for at least what was paid for it. Mr Green’s expert opinion, without the benefit of particularised comparable sales, is of reduced value to the Court. It is also unhelpful for a value to be set at 28 February 2014 when the business was sold by Zacsam, with possession passing from it on about 1 February 2012, and the business having been ceased about a year after that. From the valuation of Mr Green, with the deficiencies which have been referred to, and in view of the state of the accounts from the “MYOB” system, the Court is unable to be satisfied that the business had a capital value of $420,000 at any date that is relevant for present purposes. For the reasons given, the Court is unable to accept Mr Green’s valuation of the loss of business value.
  3. [101]
    The Court is unable, on the evidence presented, to find in favour of Zacsam in relation to this aspect of its claim. This does not imply an acceptance of the whole of the evidence of Mr Leavy. The Court is unable to be satisfied that his balance sheet insolvency approach is correct in the present circumstances, in view of s 95A of the Corporations Act 2000. Zacsam was not shown to have been unable to pay any debt when it fell due so ought not to be considered insolvent. The value of the business is another matter and is not necessarily zero, nor is the Court finding that it was zero at any time. What is found is that the claim for $420,000 is not supportable on the evidence.

The claim for loss of profits

  1. [102]
    Mr Green has assessed lost profits up to 28 February 2014.[204] This could not stand alongside the facts that the business was sold two years before that and ceased trading almost a year before 28 February 2014. Lost profits could only be claimed up until Zacsam sold the business. The Council accepts that during the roadworks the lost profits were $67,532.00. In order to resolve the difference between this and the $137,628.16 claimed by Zacsam it is necessary to consider the extent and likely duration of the disruption to the business. The importance of the evidence from Ms Nichols, Mr Kingston and Mr Hilton in relation to this is indicated by the extent to which it has already been referred to.
  2. [103]
    The Court had the benefit of closely observing these witnesses when they gave evidence. Ms Nichols, with a financial interest in the outcome, presented as an honest witness, responsive to questions and neither appearing to exaggerate or underplay any of it. The Court formed the view that she was a witness of truth and was reliable.
  3. [104]
    Mr Kingston, with his own financial interests in another claim not dissimilar to the present case, was careful and measured in his evidence, stressing the extent of the disruption, as might be expected given his position. He impressed the Court nonetheless as a witness of truth, if one intent on getting his view across.
  4. [105]
    Mr Hilton is a senior project manager employed by the Council. He impressed the Court as a loyal servant of the Council and was, the Court is satisfied, a truthful witness. He was also careful to avoid being helpful to Zacsam whenever possible, repeatedly stating that those seeking to enter the shopping centre could just take the next driveway when one was unavailable. The Court is satisfied that Mr Hilton downplayed the extent of the disruption of access to the shopping centre. This may be unsurprising since he was not always on site,[205] whereas Ms Nichols and Mr Kingston spent a lot of time there attending their respective businesses.
  5. [106]
    For the reasons given, the Court accepts the evidence of Ms Nichols and Mr Kingston in preference to that of Mr Hilton in respect of the extent of the disruption caused by these major roadworks.[206]
  6. [107]
    The claim for loss of profits finally put on behalf of Zacsam, in written submissions, is for the period from 1 May 2010 to 22 January 2012. This is, essentially, for the roadworks period and thereafter until the business was sold. The Council only accepts the validity of the claim for the roadworks period. It was submitted that the business would no longer have suffered from the impact of the roadworks after they ended and the area was made tidy. The Court is not able to be satisfied of this and accepts the proposition advanced on behalf of Zacsam that the damage was done by the roadworks interfering with access to the business. Once people had chosen to go another way, such as along McClintock Drive, or simply to shop elsewhere, the end of the roadworks would not necessarily result in that potential trade returning. It may well be that people who first came along after the roadworks had ended were not going to be affected at all by what had occurred previously but it does not follow that the customers put off by the access difficulties would ever come back. They, or some of them, could well be lost as business prospects for a time beyond the end of the roadworks. Those attracted by the appeal of the new business and, of that number, those who provided repeat business, had been attracted to what was then a new business. There is no proper basis to assume that they would simply go back at any particular time after the roadworks. The Court ought to resolve this uncertainty in favour of Zacsam. The roadworks brought about a decline in the business. After the roadworks were completed, the business no longer having its initial appeal as a new business, was unable to arrest the decline which had nevertheless been started by the roadworks. The Court is satisfied that the cause of the decline in business from the start of the roadworks up to the sale of the business was the roadworks.
  7. [108]
    Mr Leavy, in his first report,[207] assessed losses due to business interruption at $121,998 up to 22 January 2012. Mr Green, for the same period, if his figures are re-calculated to end on 22 January 2012, calculated $137,628.16. The calculations of Mr Leavy are more detailed, descending to monthly figures, whereas Mr Green used a financial year basis. They are nevertheless close and it is not possible for the Court to prefer one to the other on any basis drawn from the evidence. There is simply a doubt as to which figure is correct. The doubt is accordingly resolved in favour of Zacsam in relation to this point.

The claim for rent liability

  1. [109]
    Zacsam claimed $66,547 for this item. Mr Green’s report explains how he arrived at this figure.[208] He proceeded on the basis that Zacsam incurred rent of $91,375 from when, in his words, the landlord took over the operations of the business[209] until March 2013 when the lease was terminated. He was instructed that the landlord reduced the rent by $24,828, leaving a rental liability of $66,547.[210] Exhibit 4 shows a greater amount.[211] Exhibit 9 is different again in that it shows that at 31 January 2012 Zacsam owed $56,634.07 for rent, interest and GST.[212] Exhibit 4 shows that $24,828.87 in rent was paid between 17 March 2012 and 16 March 2013. As the business had been sold to Keyjan EB Pty Ltd which was in possession from about 1 February 2012,[213] this rent appears to have been paid by that company. The Council submits that the rental paid ought to be deducted from that owing at the date of sale so that the maximum extent of this claim would be about $32,000. Exhibit 4 shows that the lessors, through “Keyjan EB Pty Ltd commenced to run the business on behalf of the tenant from approximately February 1, 2012 and continued to do so until approximately March 17, 2013”.[214] The Court accepts that this is not necessarily the same as the situation as understood by Mr Leavy, where the landlord has broken the lease. As operator on behalf of Zacsam, it would be correct to allow for an offset of rental paid against rental due.
  2. [110]
    The rent liability of Zacsam, if it be accepted that it still continues while the landlord’s company carries on the business on its behalf, would not be the $66,547 figure Mr Green uses but that sum, or the larger sum indicated by exhibit 4 for the period when the landlord’s company operated the business, plus the $56,634.07 which exhibit 9 shows as owing for rent up to 31 January 2012. As this would be an outgoing for Zacsam it would reduce the loss of profits calculations accordingly for the period up to the sale of the business. The outcome for Zacsam, if $56,634.07 was taken off the loss of profits compensation and then compensation of $66,547 added on for the period after the sale of the business, would be that it would perhaps emerge slightly better off. It is not possible to proceed in this way, however, as it assumes that the operation of the business by the landlord’s company on behalf of Zacsam was such as to maximise Zacsam’s interest by mitigating Zacsam’s loss. Little is known of the operations conducted during this period apart from the part-rentals paid so that the Court cannot be satisfied that the expense due to the rental liability of Zacsam for that period has a causal connection with the disturbance due to the roadworks. This is because there is no evidence of how this business was conducted from when the landlord’s company took it over until it closed. The Court is not satisfied that any amount is able to be awarded for rental liability.

Orders

  1. Compensation for loss of profits for the applicant’s business is assessed in the amount of $137,628.16.
  1. Interest is payable on the compensation amount from 22 January 2012 to the date of payment, both dates inclusive. Interest is payable at the rate applicable from time to time as published by the Land Court. The payment of an advance of $121,998 on 24 October 2014 is to be taken into account in calculating the remaining sum due to the applicant.
  1. Any application for costs is to be filed and served and any reply is to be filed and served as directed.
  1. Costs incurred in making the claim for compensation are payable to the applicant at the agreed figure of $9,748.20.

MEMBER OF THE LAND COURT

Footnotes

[1] Mekpine Pty Ltd & Anor v Moreton Bay Regional Council [2012] QLC 46.

[2] Moreton Bay Regional Council v Mekpine Pty Ltd & Anor [2013] QLAC 5.

[3]  Ex 2 Tab 15 p 2 item 10.

[4]  Ex 2 Tab 15 p 2 item 14.

[5]  Ex 2 Tab 15 p 3 items 21, 22, 23.

[6]  Ex 2 Tab 15 p 4 item 26.

[7]  Ex 2 Tab 15 p 8 item 29.

[8]  Ex 2 Tab 15 p 8 item 28.

[9]  Ex 2 Tab 15 p 9 item 33.

[10]  Ex 2 Tab 15 p 9 item 36.

[11]  Ex 2 Tab 15 p 9-10 item 38.

[12]  Ex 2 Tab 15 p 10 item 41.

[13]  T 1-31 L 15-40.

[14]  Ex 2 Tab 15 p 2 item 9.

[15]  T 1-35 L 38-40, T 1-36 L 26-27.

[16]  T 1-38 L 6-13.

[17]  T 1-38 L 12-23.

[18]  T 1-38 L 25-26.

[19]  T 1-38 L 44.

[20]  Ex 4.

[21]  T 1-55 L 35-38, T 1-55 L 42 to 1-56 L 28.

[22]  Ex 2 Tab 15 p 8 item 32.

[23]  T 1-60 L 25-38.

[24]  T 1-60 L 38-39.

[25]  T 1-63 L 27-43.

[26]  T 1-66 L 6-11.

[27]  Ex 2 Tab 7 Appendix 3 p 68-71.

[28]  Ex 2 Tab 7 Appendix 3 p 72-74.

[29]  Ex 2 Tab 7 Appendix 3 p 68.

[30]  Ex 2 Tab 7 Appendix 3 p 72.

[31]  T 1-70 L 30-37.

[32]  T 1-70 L 38-45.

[33]  T 1-71 L 46 to T 1-72 L 6.

[34]  Ex 2 Tab 7 Appendix 3 p 34.

[35]  Ex 2 Tab 7 Appendix 3 p 51.

[36]  Ex 2 Tab 7 Appendix 3 p 53.

[37]  T 1-69 L 45 to T 1-70 L 1.

[38]  Ex 2 Tab 7 Appendix 3 p 51.

[39]  Ex 2 Tab 6, 3.1.2(ii).

[40]  T 1-74 L 28-30.

[41]  Ex 2 Tab 14.

[42]  Ex 2 Tab 14 Item 7.

[43]  Ex 2 Tab 14 Item 9.

[44]  T 1-80 L 45 to T 1-81 L 3.

[45]  T 1-86 L 23-34.

[46]  T 1-88 L 26-27.

[47]  T 1-89 L 16-23.

[48]  T 1-89 L 25-30.

[49]  T 1-90 L 27-29.

[50]  T 1-92 L 35-38.

[51]  T 1-92 L 41-43.

[52]  T 1-93 L 16-17.

[53]  Ex 2 Tab 6.

[54]  Ex 2 Tab 8.

[55]  Ex 2 Tab 6 p 3 1.2.1.

[56]  Ex 2 Tab 6 p 10 4.3.1.

[57]  Ex 2 Tab 6 p 10 4.3.2.

[58]  Ex 2 Tab 6 p 11 4.4.2.

[59]  Ex 2 Tab 6 p 10 4.3.3; p 11  4.3.4, 4.3.5.

[60]  T 2-7 L 24-25, L 27-28.

[61]  T 2-7 L 30-42.

[62]  T 2-8 L 4-13.

[63]  T 2-8 L 26-27, T 2-9 L 44-45.

[64]  T 2-11 L 1-3.

[65]  T 2-11 L 5.

[66]  T 2-11 L 9-12.

[67]  T 2-19 L 13-16.

[68]  Ex 2 Tab 6 p 11 4.4.2(iii).

[69]  Ex 2 Tab 6 p 11 4.4.2(iv).

[70]  T 2-22 L 33-34.

[71]  T 2-24 L 27-28.

[72]  Ex 2 Tab 6 p 34 Schedule 4.1.

[73]  T 2-27 L 12-13.

[74]  T 2-29 L 17-21.

[75]  T 2-30 L 1-6.

[76]  Ex 2 Tab 7 Appendix 3, p 51.

[77]  T 2-30 L 11-18.

[78]  T 2-30 L 23-31.

[79]  T 2-30 L 38-39.

[80]  T 2-31 L 11-12.

[81]  T 2-31 L 16-18.

[82]  T 2-32 L 9-13.

[83]  T 2-33 L 36-39.

[84]  Ex 2 Tab 7 Appendix 3 p 34. See also Ex 2 Tab 6 Schedule 4.1 p 33.

[85]  Ex 2 Tab 6 Annexure 5. See also T 2-33 L 45-47.

[86]  Ex 2 Tab 7 Appendix 3 p 72.

[87]  T 2-34 L 13.

[88]  T 2-36 L 47 to T 2-37 L 1.

[89]  T 2-36 L 16-22. T 2-37 L 4-10.

[90]  T 2-37 L 11-18.

[91]  T 2-37 L 30-31.

[92]  T 2-41 L 44-45.

[93]  T 2-42 L 19-31.

[94]  T 2-42 L 39, T 2-43 L 20-21.

[95]  T 2-43 L 10-11.

[96]  T 2-43 L 24-34.

[97]  T 2-43 L 46.

[98]  Ex 2 Tab 13.

[99]  T 2-46 L8. T2-46 L 14.

[100]  T 2-46 L 1-2.

[101]  T 2-47 L 37.

[102]  T 2-47 L 39.

[103]  T 2-48 L 24.

[104]  T 2-48 L 42-43.

[105]  T 2-49 L 5.

[106]  T 2-49 L 7-8.

[107]  T 2-49 L 18, L 22.

[108]  T 2-49 L 30-33.

[109]  T 2-50 L 5-6.

[110]  T 2-50 L 8-10.

[111]  T 2-51 L 18-19.

[112]  T 2-51 L 26-32, T 2-52 L 1-4.

[113]  T 2-52 L 30-39.

[114]  T 2-52 L 46.

[115]  T 2-51 L 30-42.

[116]  T 2-54 L 27.

[117]  T 2-54 L 30-33.

[118]  T 2-55 L 8-10.

[119]  T 2-55 L 32-34.

[120]  T 2-55 L 37-43.

[121]  Ex 2 Tab 7.

[122]  Ex 2 Tab 8.

[123]  Ex 2 Tab 7 p 4  2.0.

[124]  Ex 12

[125]  Ex 2 Tab 7 p 11  9.13.

[126]  Ex 2 Tab 7 p 12  11.1 to p 13  11.8.

[127]  Ex 2 Tab 7 p 13  11.5.

[128]  Ex 2 Tab 7 p 13  11.6.

[129]  Ex 2 Tab 7 p 13  11.7.

[130]  Ex 2 Tab 8 p 4  3.2.ii.

[131]  T 2-60 L 45-46, T 2-61 L 3.

[132]  T 2-59 L 32-34.

[133]  Ex 2 Tab 9 p 11.

[134]  T 2-63 L 13.

[135]  T 2-63 L 20.

[136]  Ex 2 Tab 11.

[137]  Ex 2 Tab 11 p 13  10.9.

[138]  Ex 2 Tab 11 p 14  11.8.

[139]  T 2-64 L 35-38.

[140]  T 2-64 L 40.

[141]  T 2-65 L 12-14.

[142]  T 2-65 L 16-23.

[143]  T 2-66 L 6-7.

[144]  T 2-66 L 27, T 2-67 L 13-14.

[145] Corporations Act 2001 s 95A.

[146]  T 2-67 L 42-43.

[147]  Ex 2 Tab 7 p 13  11.6. See also T 2-69 L 4.

[148]  T 2-68 L 12-13.

[149]  T 2-71 L 35-36, T 2-73 L 44-45.

[150]  T 2-74 L 1-2.

[151]  T 3-5 L 44-45.

[152]  T 3-6 L 13-14.

[153]  T 3-6 L 16-19.

[154]  T 3-6 L 22-24.

[155]  T 3-7 L 22-25.

[156]  T 3-8 L 1-3.

[157]  (2001) 52 NSWLR 705.

[158]  T 3-15 L 38-45.

[159]  T 2-31 L 16-18.

[160]  T 3-14 L 20-35. See also Ex 6 and Ex 8.

[161]  Ex 9 p 2 item 1.

[162]  T 3-17 L 1-6.

[163]  T 3-17 L 42 to T 3-18 L 5.

[164]  Ex 2 Tab 6 p 19 Schedule A.

[165]  Ex 2 Tab 11 Schedule S2.

[166]  T 2-60 L 4-9.

[167]  Ex 2 Tab 8 p 3  1.1.

[168] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, 730.

[169]  T 3-21 L 24-26.

[170]  Ex 2 Tab 6 p 19 and Schedule to Written Submissions of Applicant filed 22 October 2015.

[171]  Ex 2 Tab 11 p 14  11.7.

[172]  T 2-64 L 31-44.

[173]  T 3-24 L 39-40.

[174]  T 3-25 L 1-11.

[175]  Ex 2 Tab 6 p 14  6.1.5 (iii).

[176]  Ex 2 Tab 8 p 6  3.6 to p 8  3.7.

[177]  Ex 2 Tab 6 p 15  6.2.1.

[178]  Ex 2 Tab 11 p 15  12.5.2.

[179]  T 2-70 L 33 to T 2-71 L 16.

[180]  [2009] QLC 178.

[181]  T 3-26 L 33-39.

[182]  T 3-26 L 39-41.

[183]  T 3-27 L 36-37.

[184]  Ex 2 Tab 7.

[185]  T 1-70 L 37, T 1-72 L 4-6.

[186]  T 2-31 L 16-18.

[187]  Ex 2 Tab 7 Appendix 3 p 51.

[188]  T 1-69 L 10-46 to T 1-70 L 1.

[189]  Ex 2 Tab 7 Appendix 3 p 73.

[190]  Ex 2 Tab 7 Appendix 3 p 70.

[191]  Ex 2 Tab 7 Appendix 3 p 70.

[192]  Ex 2 Tab 7 Appendix 3 p 53.

[193]  T 1-66 L 25-41.

[194]  Ex 2 Tab 7 Appendix 3 p 71.

[195]  Ex 2 Tab 7 Appendix 3 p 74.

[196]  Ex 2 Tab 6 Annexure 5 p 37.

[197]  Ex 2 Tab 9 p 11 Figure 3.

[198]  T 3-24 L 13-26.

[199]  Ex 13

[200]  Ex 13 p 102, Annexure 8.

[201]  Ex 10, special condition 1.

[202]  Ex 2 Tab 6 p 3  1.2.1.

[203]  Ex 2 Tab 6 p 10  4.3.3.

[204]  Ex 2 Tab 6 p 3  1.2.1.

[205]  T 2-46 L 13-14.

[206]  T 2-51 L 18-19.

[207]  Ex 2 Tab 7 p 4  2.1 and Schedule 1.

[208]  Ex 2 Tab 6 p 16.

[209]  Ex 2 Tab 6 p 16  7.1.1.

[210]  Ex 2 Tab 6 p 16  7.1.3.

[211]  Ex 4 p 2.

[212]  Ex 9 p 2 item 1.

[213]  Ex 10 special condition 1.

[214]  Ex 4 p 2.

Close

Editorial Notes

  • Published Case Name:

    Zacsam Pty Ltd v Moreton Bay Regional Council

  • Shortened Case Name:

    Zacsam Pty Ltd v Moreton Bay Regional Council

  • MNC:

    [2016] QLC 12

  • Court:

    QLC

  • Judge(s):

    Member Isdale

  • Date:

    25 Feb 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
LGM Enterprises Pty Ltd v Brisbane City Council [2009] QLC 178
2 citations
Jump To
Cite 1 - [2009] QLC 178
Cite 2 - [2009] QLC 178
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
3 citations
Jump To
Cite 1 - (2001) 52 NSWLR 705
Cite 2 - (2001) 52 NSWLR 705
Cite 3 - (2001) 52 NSWLR 705
Mekpine Pty Ltd v Moreton Bay Regional Council [2012] QLC 46
2 citations
Jump To
Cite 1 - [2012] QLC 46
Cite 2 - [2012] QLC 46
Moreton Bay Regional Council v Mekpine Pty Ltd [2013] QLAC 5
2 citations
Jump To
Cite 1 - [2013] QLAC 5
Cite 2 - [2013] QLAC 5

Cases Citing

Case NameFull CitationFrequency
Zacsam Pty Ltd v Moreton Bay Regional Council (No. 2) [2016] QLC 312 citations
1

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