Assoni v Roads and Maritime Services; Assoni v Roads and Maritime Services

[2016] NSWLEC 9

Land and Environment Court

New South Wales

Medium Neutral Citation:	Assoni v Roads and Maritime Services; Assoni v Roads and Maritime Services [2016] NSWLEC 9
Hearing dates:	19 February 2016
Date of orders:	19 February 2016
Decision date:	19 February 2016
Jurisdiction:	Class 3
Before:	Craig J
Decision:	Being satisfied that good cause has been shown by each of the applicants for their respective failures to lodge the present applications within 90 days after receiving a compensation notice from the respondent, I determine that the Court may proceed to hear and determine their respective claims for compensation.
Catchwords:	PROCEDURE - application to extend time for filing of compensation appeal – s 66 of the Land Acquisition (Just Terms Compensation) Act 1991(NSW) - whether Applicants satisfied the Court that they had good cause for failure to lodge appeal - whether personal and financial hardship establishes good cause - no prejudice suffered by the Respondent - appropriate to allow matter to proceed to determination for their respective compensation claims
Legislation Cited:	Land Acquisition (Just Terms Compensation) Act 1991 (NSW)
Cases Cited:	Leclercq v Essential Energy [2015] NSWLEC 50 Sydney Nationwide Realty Pty Ltd v Sydney Metro; IAE EDU NET Pty Ltd v Sydney Metro [2011] NSWLEC 19
Category:	Procedural and other rulings
Parties:	31238 of 20;15 James Assoni (Applicant)
Representation:	31238 of 2015 and 31239 of 2015 Counsel: N Eastman (Applicant) H Kalarostaghi, solicitor (Respondent)   Solicitors: G & S Law Group (Applicant) Hunt & Hunt Lawyers (Respondent)
File Number(s):	31238 of 201531239 of 2015

ex tempore Judgment

1. Mr James Assoni is the owner of land known as 660 Bringelly Road, Rossmore NSW. James, together with his mother Souad Assoni and brothers John and George Assoni are jointly proprietors of land known as 30 King Street, Rossmore. James Assoni on the one hand and he, along with the other members of his family just described on the other hand, have made application to have the Court determine compensation following compulsory acquisition of an interest in their respective parcels of land by the respondent. Each property was acquired under the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (the Compensation Act).

2. Before me is a notice of motion filed in each proceeding. It is convenient to deal with those notices of motion together. Each motion seeks an order from the Court enabling objections to compensation to proceed notwithstanding failure to have lodged those applications within the time required by the statute. That is a matter to which I will turn shortly.

3. Both parcels of land were acquired upon publication of an acquisition notice in the Gazette on 17 April 2015. Compensation notices were served upon each of the respective owners on 25 June 2015. Section 66(1) of the Compensation Act provides that when an owner of land that has been acquired under the Act is dissatisfied with the determination of compensation made on behalf of the acquiring authority, objection to that offer of compensation must be lodged with this Court within 90 days from the date of receipt of a compensation notice.

4. It is accepted by each of the applicants that the compensation notices given by the respondent in each proceeding was received on some date close to 25 June 2015. That had the consequence that the 90 day limitation period imposed by s 66(1) expired on or about 25 September 2015.

5. Each of the present proceedings by way of objection was commenced only on 23 December 2015. Thus the need for the applicants to seek an order from the Court under s 66(3) of the Compensation Act, allowing them to proceed with the hearing and determination of their respective objections. Without reciting in full the terms of s 66, subsection (3) relevantly requires that the Court not hear and dispose of a claim for compensation “unless satisfied that there is good cause for the person’s failure to lodge the objection within that period”, the period being the 90 day period to which I have referred.

6. It will be apparent that the applicant in each proceeding was almost three months out of time, at least by reference to the fixed period of 90 days. Conformably with s 66(3), the respective applicants seek to establish that there is good cause for their failure and thus they seek to have the Court proceed to determine their respective claims. That course is not opposed by the respondent, a factor which is relevant to the determination that the Court is now being asked to make.

7. In order to establish “good cause”, reliance is placed first upon an affidavit of James Assoni sworn 22 December 2015 in support of his motion and second affidavits sworn respectively by John Assoni and George Assoni on 22 December 2015 in support of the motion filed in the proceedings concerning the property at 30 King Street, Rossmore.

8. I will summarise their respective positions shortly. However it must be recorded that from a time prior to the respondent acquiring the respective properties until some time shortly before proceedings were commenced, negotiations had proceeded and as I understand the evidence, are still proceeding between the former land owners and the respondent in an endeavour to resolve their respective claims.

9. The evidence of James Assoni is, as has been usefully summarised by Mr Eastman, who appeared on his behalf, to the following effect:

1. he had no legal assistance at the time of the property being acquired, nor on 29 June when the notice of determination of compensation was received by him;

2. he does not recall previously having been given legal advice to the effect that there was a limited time within which any objection to the compensation offered would need to be the subject of proceedings commenced in this Court;

3. he continued to search for an alternate property after the compensation notice had been received, believing that while he did that, negotiations could proceed with the respondent without necessarily impinging upon his entitlement to both negotiate and to achieve, if he could, a higher figure for the land than that which was initially offered; and

4. it was not until he instructed his present solicitors in December that he was made aware that a limitation period applied and that he was then out of time to lodge his application.

10. George Assoni, in his affidavit, addresses, in addition to the kind of matters to which James Assoni deposed, the following:

1. solicitors had been engaged at an early stage of the then proposed acquisition process, but due to the absence of or lack of funds to continue to pay for legal services, he did not continue to seek advice from those solicitors, with the consequence that at the time at which the acquisition notice was received and also at the time at which the compensation notice was received he had no reason to believe that he needed to have recourse to any legal representative;

2. at that same time the family were experiencing particular difficulties, indeed stress, because works were already being undertaken by the respondent and this was occasioning considerable concern to their elderly and infirm mother;

3. like his brother James, he believed that there was no impediment to the continuation of negotiations for the amount of compensation which would be paid for the land acquisition and that as a consequence while negotiations were continuing there was no need to seek further advice; and

4. it is probable that the negotiation process had reached such an impasse by December 2014 that it was not until then that his present legal advisors were consulted, at which time George, like his brother James, first became aware that he was already out of time to have made the objection that has now been made to the Court.

11. The expression “good cause”, as used in s 66(3) of the Compensation Act, is not defined in the Act. In the context of that subsection, the “good cause” about which the Court is to be satisfied is directed to the failure to lodge an objection to an offer of compensation within the requisite period of 90 days. That statutory provision, so it seems to me, is to be understood as requiring a legally acceptable or sufficient explanation for the failure to have commenced proceedings within that time (Sydney Nationwide Realty Pty Ltd v Sydney Metro; IAE EDU NET Pty Ltd v Sydney Metro [2011] NSWLEC 19 at [22].

12. As I observed in Leclercq v Essential Energy [2015] NSWLEC 50, while focus will be upon the conduct of an applicant during the 90 day period, other considerations may be relevant to the adequacy or sufficiency of the explanation that is offered to persuade the Court to exercise the discretion provided under s 66(3). In principle these other factors will include the length of time by which the 90 day period is exceeded, prejudice to the respondent occasioned by delay and demonstration on the part of the applicant of an arguable case justifying the continuation of proceedings. The last factor is unlikely to present a difficulty to an applicant in the position of the present applicants, given their statutory entitlement to be paid compensation following acquisition of their land.

13. I am satisfied that good cause has been shown. While the period by which the 90 day period was exceeded is almost three months, no prejudice is claimed on the part of the respondent by reason of that delay. That position is understandable. The evidence reveals that during the 90 day period negotiations continued with the respondent, with the consequence that it could not have been under any misapprehension that the applicants were disposed to accept the offer contained in the compensation notice.

14. The personal circumstances of the respondents, or at least those who have sworn the affidavits in support of each motion, clearly demonstrate that they were unaware of the requirement to have commenced proceedings within the 90 day period. In each case the compensation notice was passed to their expert valuer for advice on quantum without regard being had to the terms of the notice drawing attention to the time limitation imposed by s 66(1).

15. These matters, coupled with the absence of any prejudice to the respondent and the relatively short period by which the time limit was exceeded, seem to me to satisfy the requirement that good cause be shown.

16. For these reasons I make the following determination:

1. Being satisfied that good cause has been shown by each of the applicants for their respective failures to lodge the present applications within 90 days after receiving a compensation notice from the respondent, I determine that the Court may proceed to hear and determine their respective claims for compensation.

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Decision last updated: 24 February 2016