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Philip Usher Constructions Pty Ltd v Cross River Rail Delivery Authority[2025] QLC 18

Philip Usher Constructions Pty Ltd v Cross River Rail Delivery Authority[2025] QLC 18

LAND COURT OF QUEENSLAND

CITATION:

Philip Usher Constructions Pty Ltd v Cross River Rail Delivery Authority & Anor [2025] QLC 18 

PARTIES:

Philip Usher Constructions Pty Ltd

ACN 001 008 101

(applicant)

v

Cross River Rail Delivery Authority

(first respondent)

D&S Ring Family Pty Ltd ATF Dinger Family Trust

(second respondent)

FILE NO:

AQL019-25

PROCEEDING:

Application for compensation and declaratory relief under the Acquisition of Land Act 1967

DELIVERED ON:

15 August 2025

DELIVERED AT:

Brisbane

HEARD ON:

22 July 2025

HEARD AT:

Brisbane

PRESIDENT:

PG Stilgoe OAM

ORDERS:

  1. By operation of the Deed of Assignment, Philip Usher Constructions Pty Ltd has no right to compensation.
  2. By operation of the Deed of Assignment, Philip Usher Constructions Pty Ltd may exercise the right to compensation that D&S Ring Family Pty Ltd held as at the date of resumption.
  3. Any application for costs is to be filed and served within 21 days of the publication of these reasons.

CATCHWORDS:

REAL PROPERTY – COMPULSORY ACQUISITION – where right to compensation was assigned – whether applicant has an interest in resumed land under s 12(5) of the Acquisition of Land Act 1967 – whether applicant may exercise the right to compensation – where the applicant has no right to compensation – where the applicant may exercise the right to compensation held by the assignor as at the date of resumption.

Acquisition of Land Act 1967 s 12(5), s 18, s 19, s 20

Acts Interpretation Act 1954 sch 1, s 35A, s 36

Cantray Pty Ltd v Council of the City of Gold Coast [1997] QLC 95

Kemi Nominees Pty Ltd v Chief Executive, Department of Transport [1996] QLC 142

Kilmaley Investments Pty Ltd v City of Wanneroo [2019] WASCA 156

Marshall v Director-General, Department of Transport (2001) 205 CLR 603

Phillip Street Properties Pty Ltd v The State of Queensland [1999] QLC 122

Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads [2007] 2 Qd R 373

Stony Creek Pty Ltd v Chief Executive, Department of Transport and Main Roads [2017] QLC 3

Trendex Trading Corp v Credit Suisse [1982] AC 679

APPEARANCES:

DR Gore KC with DA Quayle (instructed by Anderssen Lawyers) for the applicant

RJ Anderson KC with JS Brien (instructed by Ashurst) for the first respondent

  1. [1]
    In July 2020, the Cross River Rail Delivery Authority resumed land owned by D&S Ring Family Pty Ltd.
  2. [2]
    In September 2021, Ring sold the subject land to Philip Usher Constructions Pty Ltd (“PUC”).
  3. [3]
    In November 2022, Ring assigned its compensation rights to PUC.
  4. [4]
    In June 2023, PUC served a claim for compensation on the Authority. The Authority did not accept the claim and denies that PUC has a right to compensation.
  5. [5]
    PUC seeks a declaration that, by operation of the Deed of Assignment, it has, or may exercise, the right to compensation.

PUC’s primary submission

  1. [6]
    PUC argues that s 12(5) of the Acquisition of Land Act 1967 (Qld) (“ALA”), when read with s 35A of the Acts Interpretation Act 1954 (Qld) (“AIA”), recognises that a right to claim compensation may be validly assigned.
  2. [7]
    The Authority accepts that the right to compensation may be assigned but submits that the claimant, for the purposes of valuing that right, is Ring, not PUC.
  3. [8]
    I, too, accept that Ring could assign its right to compensation to PUC. What is more difficult to discern is why the right to compensation should be assessed as PUC’s loss, not Ring’s.
  4. [9]
    As I understand PUC’s argument, Ring’s assignment to PUC created a separate right for which it could claim compensation.
  5. [10]
    Section 12(5) of the ALA provides:
  1. (5)
    On and from the date of the publication of the gazette resumption notice the land thereby taken shall be vested or become unallocated State land as provided by the foregoing provisions of this section absolutely freed and discharged from all trusts, obligations, mortgages, charges, rates, contracts, claims, estates, or interest of what kind soever, or if an easement only is taken, such easement shall be vested in the constructing authority or, where the gazette resumption notice prescribes, in the corporation requiring the easement, and the estate and interest of every person entitled to the whole or any part of the land shall thereby be converted into a right to claim compensation under this Act and every person whose estate and interest in the land is injuriously affected by the easement shall have a right to claim compensation under this Act.
  1. [11]
    Section 35A of the AIA states:
  1. 35A
    References to person with interest in land includes personal representative etc.

In an Act, a reference to a person as proprietor, transferor, transferee, mortgagor, mortgagee, lessor, lessee, trustee or as having an interest in land includes a reference to the person’s personal representatives, successors and assigns.

  1. [12]
    PUC argues that s 35A of the AIA influences the way I must define “person” in s 12(5) of the ALA to include assignees. It says, therefore, as an assignee it has an interest in land for which it can claim compensation in its own right.
  2. [13]
    To support its position, PUC posited two “simple” examples, each involving the death of a landowner and the rights of the personal representative. The examples are unhelpful.
  3. [14]
    Section 18(1) of the ALA identifies who may make a claim:
  1. Subject to subsections (2), (3), (4A) and (5) compensation whereto a right is had under section 12 may be claimed from the constructing authority under, subject to and in accordance with the provisions of this part.
  1. [15]
    Section 18(2) of the ALA states that:
  1. (2)
    In the case of the inability or incapacity of any person entitled to claim, the claim may be made by the person’s guardian, trustee or committee or, if there is no guardian, trustee or committee, the Public Trustee of Queensland.
  1. [16]
    It is not necessary to interpret the interaction between s 12(5) of the ALA and s 35A of the AIA to remedy the problems in PUC’s simple examples. Section 18(2) deals with PUC’s examples in a way that is compatible with s 12(5).
  2. [17]
    I agree with the Authority that s 12(5) operates to convert an estate or interest in land into a right to claim compensation. The estate or interest must exist at the time of resumption. PUC’s estate or interest, if it had one, did not exist at that time. The only thing that can be assigned after resumption is the existing right to claim compensation. An assignment cannot create a new interest in land or a new right to compensation.

Other relevant statutory provisions

  1. [18]
    PUC’s interpretation of s 12(5) of the ALA and s 35A of the AIA ignores the effect of other provisions in those Acts.
  2. [19]
    Section 19 of the ALA sets out the requirements for a claim for compensation.  Section 19(1)(b) requires, “a statement of the nature and particulars of the claimant’s estate or interest in the land taken”. Section 19(2) states that, “where the estate or interest of the claimant is not registered …, the claim shall be accompanied by proof of title to the estate or interest claimed…”.
  3. [20]
    The inescapable inference in s 19 is that the claimant’s interest must be in the land. While the primary interest in land is one that is subject to registration, the section also contemplates something less than a registered interest (e.g. a licence, unregistered lease or an equitable interest.) However, there must still be an estate or interest in land.

Section 20(2) of the ALA states that, “compensation shall be assessed according to the value of the estate or interest of the claimant in the land taken on the date it was taken”. Once again, it is clear that the right to compensation is founded in the claimant having an interest in land.

  1. [21]
    Section 36 of the AIA states that in an Act, a term defined in Schedule 1 has the meaning stated in that schedule. Schedule 1 defines “estate” as:

Estate includes easement, charge, right, title, claim, demand, lien and encumbrance, whether at law or in equity.

Schedule 1 defines “interest” as:

Interest, in relation to land or other property, means— (a) a legal or equitable estate in the land or other property; or (b) a right, power or privilege over, or in relation to, the land or other property.

  1. [22]
    Section 35A of the AIA must be read in light of the meanings given to “estate” and “interest”. Both definitions rely on an interest in land. The mere assignment of a right to compensation cannot create an interest in land where none otherwise exists.
  2. [23]
    Section 20(2A) states that:
  1. (2A)
    However, in assessing the compensation, a contract, licence agreement or other arrangement (a relevant instrument) entered into in relation to the land after the notice of intention to resume was served on the claimant must not be take into consideration if the relevant instrument was entered into for the sole or dominant purpose of enabling the claimant or another person to obtain compensation for an interest in the land created under the instrument.
  1. [24]
    I note that neither party referred to s 20(2) or s 20(2A) of the ALA in submissions, but the application of s 20(2A) seems to me to be a complete answer.
  2. [25]
    The Authority resumed the land in July 2020. Ring sold the remnant parcel to PUC in September 2021, over one year later.
  3. [26]
    Clause 4.2 of the contract of sale stated that the property was sold “as is, where is”, and that PUC had satisfied itself as to the value of the property from its own independent valuation and reports. Unlike other cases before the Courts,[1] the contract did not assign the right to claim compensation for the resumption.
  4. [27]
    PUC submits that its right to compensation derives from the Deed of Assignment. The Deed of Assignment is dated 22 November 2022, over a year after the contract of sale and over two years after the resumption.
  5. [28]
    Mr Usher, Director of PUC explains that, when PUC bought the remnant parcel, he could not determine the nature and extent of development constraints. According to Mr Usher, PUC spent most of 2022 investigating the potential impact of the Cross River Rail Project on the remnant parcel.
  6. [29]
    Whether the assignment was for the sole or dominant purpose of enabling PUC to obtain compensation for the interest created under the assignment was not the subject of direct evidence or any submissions. However, it is difficult to discern an alternative purpose. PUC was aware of the resumption before it bought the land. By the sale contract, it acknowledged that it had conducted its own inquiries,[2] that it had satisfied itself as to the value of the property, and that it knew of the resumption. The inescapable conclusion from Mr Usher’s affidavit is that he regretted the bargain he made in 2021 and wanted to improve his position by claiming compensation from the Authority.

The cases

  1. [30]
    The parties spent some time in oral submissions analysing two cases.
  2. [31]
    The first case is Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads.[3] The question I must answer is the same as the question before the Court of Appeal: whether PUC’s contractual right was an “interest of a person entitled to…any part of the land” which was resumed.[4]
  3. [32]
    The “interest” in Sorrento was a licence, granted pursuant to a lease, to occupy land designated as car parking lots. The majority of the Court of Appeal, McMurdo P and Chesterman J, held that the licence was a right of property.[5]
  4. [33]
    PUC pointed out that Chesterman J started his analysis by reference to the decision of Gaudron J in Marshall v Director-General, Department of Transport:

“The right to compensation for injurious affection following upon the resumption of land is an important right of that kind and statutory provisions conferring such a right should be construed with all the generality that their words permit. Certainly, such provisions should not be construed on the basis that the right to compensation is subject to limitations or qualifications which are not found in the terms of the statute.”[6]

“It is a basic rule of statutory construction that legislative provisions are to be construed according to their natural and ordinary meaning unless that would lead to a result that the legislature must be taken not to have intended. The rule serves the important purpose of ensuring that those who are subject to the law understand the nature and extent of their rights and obligations … Although the rule that legislative provisions are to be construed according to their natural and ordinary meaning is a rule of general application, it is particularly important that it be given its full effect when, to do otherwise, would limit or impair individual rights, particularly property rights. The right to compensation for injurious affection following upon the resumption of land is an important right of that kind and statutory provisions conferring such a right should be construed with all the generality that their words permit. Certainly, such provisions should not be construed on the basis that the right to compensation is subject to limitations or qualifications which are not found in the terms of the statute.”[7]

  1. [34]
    I accept that the general principles in Marshall apply.
  2. [35]
    PUC submits that the Authority wants to interpolate the word “only” into s 12(5) of the ALA, which is contrary to the principles expressed in Marshall and adopted in Sorrento. While I agree that the interpolation of a word is contrary to principle, I do not agree that the Authority is trying to do so. For the reasons I have already expressed, s 12(5) operates as the Authority contends without the need to imply words into it.
  3. [36]
    PUC also submits that the majority in Sorrento confirmed that a right which is not an interest in land might still give rise to a claim for compensation if it is a right, power or privilege over, or in relation to the land by reason of s 35A of the AIA. I agree that s 35A had that effect in Sorrento. Unlike PUC, the claimant had that right at the time of the resumption.
  4. [37]
    The parties’ oral submissions also focussed on the applicability, or otherwise, of the Western Australian Court of Appeal decision in Kilmaley Investments Pty Ltd v City of Wanneroo.[8] The subject property was co-owned by Kilmaley Investments and Mannor Holdings. At the time of acquisition, Shean Pty Ltd held a mortgage over Mannor’s interest. Following the acquisition, Mannor assigned its interest in the land to Kilmaley and its right to compensation to Shean. The Court of Appeal held that the right to compensation was personal to the landholder at the time of the acquisition and could not be assigned to another person after the fact.
  5. [38]
    PUC wanted to persuade me that Kilmaley was distinguishable from the present case because both the legislative structure and the facts were completely different. Obviously, the facts were different. Was the legislation so different that I should not have regard to the decision?
  6. [39]
    PUC submitted that the Western Australian definition of interest was more restrictive. It says that a claim “made” is temporal in nature, whereas the Queensland provision is less restrictive. PUC submits that I should also distinguish Kilmaley because the Western Australian provision expressly refers to an executor whereas the Queensland equivalent does not.
  7. [40]
    PUC also noted an internal inconsistency in Kilmaley. It submitted that, although the Court focussed on the position of the person who had the interest at the time the land was taken it later says, “ah, well, we might take a different view if the assignee owns the remnant parcel.” The internal inconsistency is interesting, but it is not for me to discern what was in the minds of the learned Judges when they wrote their decision.
  8. [41]
    Even ignoring the inconsistency, Kilmaley does no more than confirm the position taken by the Court of Appeal in Sorrento; the assignment did not create a separate interest in land. PUC’s submissions were an exercise in semantics and, therefore, unpersuasive.
  9. [42]
    PUC referred me to cases, including Trendex Trading Corp v Credit Suisse,[9] which discussed the criteria for the assignability of causes of action. Given the Authority’s concession that the right to compensation is assignable, I need not discuss those cases further.

The Land Court cases

  1. [43]
    PUC also referred me to four cases where the Land Court considered a right to compensation after an assignment. It submitted that these cases supported a finding that PUC was entitled to claim compensation in its own right. I will consider each briefly.
    1. Kemi Nominees Pty Ltd v Chief Executive, Department of Transport:[10] Kemi sold the subject land after receiving a notice of resumption. The contract for sale assigned Kemi’s right to compensation to the purchaser and allowed the purchaser to use Kemi’s name in prosecuting the claim. The claim was made in Kemi’s name and the Court declined to order compensation for disturbance costs that may have been legitimate for the purchaser but were too remote for Kemi.
    2. Phillip Street Properties Pty Ltd v The State of Queensland:[11] There was a licence to extract and sell sand and loam from the subject property. The owner/licensor assigned the licence. The licensee exposed ancient Aboriginal remains during its sand extraction and purported to terminate the licence because further extraction, which might damage the remains, was illegal and, therefore, the licence was frustrated. The State of Queensland resumed the property to protect the remains. The owner lodged a claim for compensation and then assigned its rights to compensation to the Phillip Street Properties. The lengthy decision canvasses many issues but does not deal with the issue of assignment. Given that Phillip Street Properties, as mortgagee, maintained an interest in land, that is an understandable omission. I note, too, that the case concerned the assignment of the owner’s right to compensation, so there was no debate about whether there was a separate right to compensation created by the assignment.
    3. Stony Creek Pty Ltd v Chief Executive, Department of Transport and Main Roads:[12] Stony Creek was the owner of the subject land and, as at the date of resumption, was in liquidation. Stony Creek’s liquidators assigned the rights of compensation to Kenjad which was added as a party to the proceedings. Stony Creek had two bases of claim. The first was that it was entitled to a rebate from the developer of its land calculated by reference to the number of houses built. The second was a claim for loss of profit because the resumption reduced the number of lots available for development from 41 lots to 33 lots. The Court rejected the claim for loss of profits but allowed the rebate. The basis for the rebate, however, was an agreement between Stony Creek and the developer, not Kenjad and the developer. Again, the Court was asked to consider the value of the assignor’s interest, not the assignee.
    4. Cantray Pty Ltd v Council of the City of Gold Coast:[13] The owner of the resumed land sold the remnant area to Cantray. The contract of sale provided that “any amount of compensation payable in relation to the area resumed is payable to the purchaser and the vendor has no claim whatsoever to any compensation amount paid.” The Court’s assessment of Cantray’s claim was on orthodox principles, albeit that the sale to Cantray was excluded from the comparable sales evidence. There was also a claim for compensation by Tulloch, a company operating a business on the land but not the company operating the business at the time of the resumption. The Court held that Tulloch did not hold an interest or estate in the land taken at the date of resumption and was not entitled to claim compensation for business disturbance. It held that Tulloch had no locus standi before the Court. The clear implication is that Cantray’s right to compensation was based squarely on the interest in land held by the owner as at the date of resumption.
  2. [44]
    There is no case which supports PUC’s contention. On the contrary, all cases referred to me suggest, at least by implication, that the claim for compensation must be based on an interest in land that existed at the time of taking, even though it may be exercised by a third party.

Conclusion

  1. [45]
    The answer to the question of whether, by operation of the Deed of Assignment, PUC has, or may exercise, the right to compensation is:
    1. no, it does not have a right to compensation; but
    2. yes, it may exercise the right to compensation that Ring held as at the date of resumption.

Orders

  1. [46]
    The Court declares:
    1. By operation of the Deed of Assignment, Philip Usher Constructions Pty Ltd has no right to compensation.
    2. By operation of the Deed of Assignment, Philip Usher Constructions Pty Ltd may exercise the right to compensation that D&S Ring Family Pty Ltd held as at the date of resumption.
    3. Any application for costs is to be filed and served within 14 days of the publication of these reasons.

Footnotes

[1] Kemi Nominees Pty Ltd v Chief Executive, Department of Transport [1996] QLC 142; Cantray Pty Ltd v Council of the City of Gold Coast [1997] QLC 95.

[2]  Contract for Commercial Land and Buildings dated 6 August 2021, clause 4.2 of the Special Conditions. 

[3]  [2007] 2 Qd R 373.

[4]  Ibid, 387.

[5]  Ibid, 390.

[6]  (2001) 205 CLR 603, 623.

[7]  Ibid.

[8]  [2019] WASCA 156.

[9]  [1982] AC 679.

[10]  [1996] QLC 142.

[11]  [1999] QLC 122.

[12]  [2017] QLC 3.

[13]  [1997] QLC 95.

Close

Editorial Notes

  • Published Case Name:

    Philip Usher Constructions Pty Ltd v Cross River Rail Delivery Authority & Anor

  • Shortened Case Name:

    Philip Usher Constructions Pty Ltd v Cross River Rail Delivery Authority

  • MNC:

    [2025] QLC 18

  • Court:

    QLC

  • Judge(s):

    PG Stilgoe OAM

  • Date:

    15 Aug 2025

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
Cantray Pty Ltd & Tulloch Trading Co Pty Ltd v Council of the City of Gold Coast [1997] QLC 95
3 citations
Jump To
Cite 1 - [1997] QLC 95
Cite 2 - [1997] QLC 95
Cite 3 - [1997] QLC 95
Kemi Nominees Pty Ltd v Chief Executive, Department of Transport [1996] QLC 142
3 citations
Jump To
Cite 1 - [1996] QLC 142
Cite 2 - [1996] QLC 142
Cite 3 - [1996] QLC 142
Kilmaley Investments Pty Ltd v City of Wanneroo [2019] WASCA 156
2 citations
Jump To
Cite 1 - [2019] WASCA 156
Cite 2 - [2019] WASCA 156
Marshall v Director General Department of Transport (2001) 205 CLR 603
2 citations
Jump To
Cite 1 - (2001) 205 CLR 603
Cite 2 - (2001) 205 CLR 603
Phillip Street Properties Pty Ltd v The State of Queensland [1999] QLC 122
2 citations
Jump To
Cite 1 - [1999] QLC 122
Cite 2 - [1999] QLC 122
Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads[2007] 2 Qd R 373; [2007] QCA 73
2 citations
Jump To
Cite 1 - [2007] 2 Qd R 373
Cite 2 - [2007] 2 Qd R 373
Stony Creek Pty Ltd (in liquidation) v Chief Executive, Department of Transport and Main Roads [2017] QLC 3
2 citations
Jump To
Cite 1 - [2017] QLC 3
Cite 2 - [2017] QLC 3
Trendtex Trading Corporation v Credit Suisse (1982) AC 679
2 citations
Jump To
Cite 1 - (1982) AC 679
Cite 2 - (1982) AC 679

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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