The Gaudiosos’ lawyer Aaron Gadiel, a partner at Mills Oakley, said the state courts’ application of the law, in this case, represented “a radical change to the way compensation for land acquisition has been handled in NSW for decades”.
“The implications are quite sweeping,” Gadiel said. “It’s very rare that a family business will see the need to execute a formal lease. That’s not how family businesses will be thinking.
“Even when people have formal leases, if the lease doesn’t have a market value, if the lease isn’t tradable in the sense that it has a dollar value attached to it, then they will get no compensation if their business is forced to relocate.”
In submissions to the court, experts retained by the Gaudiosos estimated the business relocation costs were $6.23 million, including lost profit. Transport for NSW argued against any compensation but admitted, based on actual costs incurred, that if relocation costs had to be paid they amounted to $2.45 million – more than double the $1 million it originally paid.
Once the court found that no compensation was owed, lawyers for the government demanded the Gaudiosos repay the $1 million, warning that Transport for NSW reserved its right to take legal action to recover the money with interest.
Metropolitan Roads Minister Natalie Ward and Transport for NSW said it was not appropriate for them to make specific comments about the case because it remained before the courts.
“Unfortunately property acquisitions are unavoidable when it comes to delivering major infrastructure projects that are shaping the future of NSW,” Ward said.
A Transport for NSW spokesperson said the department appreciated the acquisition process was difficult for property owners, and respected their right to challenge offers in court.
The Gaudiosos moved Olde English Tiles to temporary premises nearby and eventually split the operations over two sites; a $5 million factory and $2.5 million neighboring warehouse in Leichhardt, and an Annandale showroom which they lease.
But Antonino said he had to mortgage his Northwood home “to the max” to finance the relocation and fit out the new properties, which included installing a mezzanine at the factory to create sufficient floor space.
“[It’s] completely unfair,” he said. “They have robbed me for years of my work without even thinking [that] this man has worked for 40 years. I feel completely devastated.”
The family had also challenged the market value of the land, claiming it would have been worth more than $19 million if rezoned for higher-density residential and sold to a developer. The court did not accept this argument either.
“The legal reasoning was fair. We will move on. But the relocation expenses are really what gets us,” Dominic said.
“We operated on that land fairly for over a decade. We were acquired and because we didn’t have a lease in place, we don’t get a cent. Politicians need to revisit this nuance in that law, and they need to close that loophole.”
The saga is reminiscent of the compulsory acquisition of the Kerrigan family home in Rob Sitch’s Australian film classic TheCastle, which included the bumbling solicitor Dennis Denuto.
“Good old Dennis Denuto, he got across the line at the end,” Gadiel said. “We’re hoping for an equally happy ending with a smoother path for the Gaudiosos.”
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