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NSW businesses win Sydney Light Rail class action
Transport NSW has been found to be liable for the financial damage two businesses suffered during the construction of the Sydney railway line, but a court said there remains a big question mark over the approximately 300 other group members in the class action.
Naomi Neilson
The Supreme Court found Hunt Leather’s George Street store and Ancio Investment’s Thai and Italian restaurant suffered an interference by the construction that was “both substantial and unreasonable”. Its owners, Sophie Hunt and Nicholas Zisti, were not successful.
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Justice Richard Cavanagh found Transport for NSW “created the state of affairs which led to the extended period of interference in circumstances in which the harm was foreseeable and predictable”, and it was the “business owners who bore the consequences”.
Banton Group, who was engaged by the plaintiff solicitors Mitry Lawyers, said the proceedings were “long and arduous”.
“I am excited for Hunt and Ancio who have finally seen a result from their efforts in respect of the claim and who will recover damages.
“I am hopeful that group members will also have a resolution to their claims shortly, almost a decade after the project commenced,” Banton Group’s managing partner Amanda Banton said.
Justice Cavanagh said Hunt Leather and Ancio succeeded because they operated small businesses that were highly susceptible to the effects of the construction and had no means of reducing the impact on their financial stability.
“It is not difficult to understand how a small boutique luxury goods store which opened directly onto the construction works would suffer because of those works,” Justice Cavanagh said.
“It is not difficult to understand how a small specialist restaurant which relied on the amenity of its premises would suffer as a result of construction activities happening right outside its front door.”
In his remarks, Justice Cavanagh added Ancio’s owner, Mr Zisti, claimed his revenue was reduced by 29 per cent when construction began and Transport for NSW removed parking along the street.
Hunt Leather’s Strand Arcade store also suffered a loss right after it reported a major increase in its revenue prior to the construction.
The nuisance period for Ancio commenced on 3 September 2017 and ended on 28 February 2019, while Hunt Leather suffered between 1 November 2016 and 3 December 2017.
Although nuisance was established for both businesses, Justice Cavanagh said this could not be applied to all businesses along the construction path merely because of its proximity.
“This is not a particularly apt vehicle for a class action, albeit as I have identified, some of the issues might be common and have been determined by this judgment,” Justice Cavanagh said.
“Going forward, there will need to be a process or mechanism developed for the determination of both entitlement and loss.”
Justice Cavanagh said there would need to be another hearing to determine damages for the lead plaintiffs and establish a process for the remaining class action group members, including whether there might be any “common questions which could be answered”.
“My preliminary view is that referees should be appointed to determine the outcomes based on guidelines and parameters,” he said.
