Having the amount fixed is not the same as having the money. Division 8 of Part IV of the Land Act 1996 governs payment.
Section 44 — the three conditions of payment
When the amount has been determined, it shall be paid to the person entitled when they have —
(a) made out, to the satisfaction of the Attorney-General, a title, as at the date of acquisition, to the interest for which compensation is payable; and
(b) produced or surrendered all deeds and documents relating to or evidencing that title that the Attorney-General reasonably requires; and
(c) executed such documents as the Attorney-General reasonably requires.
All three, and the gatekeeper is the Attorney-General, not the Department or the Minister. This is where claims most often stall — not on the amount, but on proof of title.
Not as at today. The register was cleared of your interest when the land vested in the State under section 12(2). You must therefore be able to show what you held immediately before the Gazette notice. Obtain a historical title search early, and preserve the lease, transfer, mortgage and any customary determination.
Section 44(2) — the shortcut
Paragraph (a) — making out title to the Attorney-General’s satisfaction — does not apply where a court has, under section 22, 31 or 46, declared or determined that the claimant had the interest immediately before the date of acquisition.
That is a strong practical reason, where entitlement is contested or the paperwork is imperfect, to obtain a declaration rather than argue with the Attorney-General’s office indefinitely. A court declaration removes the discretionary gate.
Section 45 — payment into court
If, six months after the amount is determined, the person entitled has not received payment by reason of some default or delay on their part, the Minister may deposit the amount in the National Court.
Before depositing, if the Minister has notice of any rents, rates, taxes or assessments charged on the land and due at the date of acquisition, he may pay those out of the compensation and deposit only the balance.
Delay is not neutral. Compensation deposited in court is out of the State’s hands, and getting it out requires a section 46 application with proof of title. Outstanding rates and land tax on the acquired land come off the top. If a claim is stuck on documentation, deal with it inside the six months.
Money deposited under section 45 may be paid out on the direction of the Attorney-General to a person who complies with section 44.
Section 46 — getting the money out
Notwithstanding sections 44 and 45, where a person claims to be entitled to compensation determined by agreement or by a court — including an amount deposited in the National Court — the National Court may, on that person’s application and on proof to its satisfaction of their title immediately before the date of acquisition:
- declare that the person is entitled to the compensation; and
- order payment, subject to such conditions as the Court thinks fit.
Interest — the three possibilities
| Route | Provision | Rate |
|---|---|---|
| Arbitration | s 28(1) | Such rate as the arbitrator thinks proper, for the whole or part of the period between acquisition and assessment |
| Money paid into court | s 46(2) | 3% per annum for a period after the date of the deposit, if the Court thinks fit |
| Under another law | s 28(2) | Section 28(1) does not apply where interest is payable under any other law — no double recovery |
There is no general provision entitling a claimant to interest from the date of acquisition to the date of payment as of right. That is a real gap where payment takes years, and it is one reason to press for determination and payment promptly, and to consider arbitration, where an arbitrator has an express discretion to award interest.
The constitutional backstop
Section 53(2) of the Constitution requires just compensation on just terms. Section 53(3) provides that compensation is not to be treated as unjust solely because of fair provision for deferred payment, payment by instalments, or compensation otherwise than in cash — so deferred payment is not automatically unconstitutional. But a very long delay with no interest is capable of raising a “just terms” argument, and section 41 may be available where the outcome is harsh or oppressive in the particular case.
Sources
- Land Act 1996 — ss 12, 22, 28, 30, 31, 44–46
- Constitution — ss 41, 53
- Claims By and Against the State Act 1996
Before relying on anything here, read the current text of the Land Act 1996 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.