Doueihi v Roads and Traffic Authority

[2003] NSWLEC 441

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Land and Environment Court

of New South Wales

CITATION:

Doueihi and Others v Roads and Traffic Authority [2003] NSWLEC 441 revised - 23/12/2004

PARTIES:

FIRST APPLICANTS
Ibrahim Doueihi and Mariette Doueihi

SECOND APPLICANT
A & M Doueihi Pty Limited

RESPONDENT
Roads and Traffic Authority of New South Wales

FILE NUMBER(S):

0421 of 2002

CORAM:

Cowdroy J

KEY ISSUES:

Compulsory Acquisition of Land :- application for vacation of hearing date.

LEGISLATION CITED:

CASES CITED:

State of Queensland & Anor v JL Holdings Pty Ltd (1996) 141 ALR 353

DATES OF HEARING:

04/04/2003

EX TEMPORE
JUDGMENT DATE :

04/04/2003

LEGAL REPRESENTATIVES:

APPLICANTS
Ms. V.Culkoff (Barrister)

SOLICITORS
Russo and Partners

RESPONDENT
Mr R. Lancaster (Barrister)

SOLICITORS
Henry Davis York

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Cowdroy J

4 April 2003

0421 of 2002

IBRAHIM DOUEIHI and MARIETTE DOUEIHI
First Applicants

A & M DOUEIHI PTY LIMITED
Second Applicant

ROADS AND TRAFFIC AUTHORITY of NEW SOUTH WALES
Respondent

Judgment - On application to vacate hearing dates.

1 By notice of motion dated 4 April 2003 the respondent seeks to vacate the hearing dates of 7, 8, 9 and 10 April 2003 currently fixed for the hearing of these proceedings.

2 The proceedings involve a claim for compensation arising out of the acquisition by the respondent of land owned by the first applicants. Upon the land was erected a residence and buildings in which the second applicant conducted the business of a flower vendor. The land comprises three lots, known as lot 12, lot 13 and lot 14. Upon lot 13 was erected a building which had the benefit of existing use rights. Lot 12 and lot 14 contained buildings, across the rear of which was erected a fibro cement shed which was used for the flower business. The shed contained equipment used for the bunching of flowers.

3 The applicant’s evidence was served on 21 March 2003. Thereafter the respondent prepared its evidence. The affidavit of Paul Joseph Colagiuri sworn 4 April 2003 establishes that various matters have recently come to his attention concerning three issues which are said to be fundamental to the claim for compensation. One relates to an encroachment of the fibro cement shed for a length of three metres onto lot 12 from the adjoining lot. Another concerns the possibility that the flower business, at least from lot 12 and lot 14, was conducted without the approval of the relevant planning authority. A third matter involves a claim for compensation by the second applicant arising from cessation of the flower business.

4 As the respondent understood it, the second applicant had ceased to conduct the business upon acquisition of the land and a claim for compensation of approximately $500,000 was made in respect thereof. The respondent has recently received information which suggests that the applicant, albeit under a different corporate name, has recommenced the business. The respondent submits that such matters are fundamental to the way in which it has prepared its evidence. Some expert evidence will now become irrelevant. For these reasons, the respondent seeks a vacation of a hearing date to enable further enquiries to be made. It claims that it has not had sufficient time to investigate the matters which have recently come to its attention.

5 The applicants oppose the application and have referred the Court to correspondence between the respondent and the applicant’s solicitors of 1 August 2002 and 17 October 2002. The applicants do not proffer any explanation of the matters referred to by the respondent relating to the alleged possible illegal use of the land, nor of the encroachment, except to state that since two of the lots were jointly owned by the first named applicant, any encroachment as alleged would have been of little significance.

6 The vacation of a hearing date is an important matter, especially where four days of the Court’s time has been set aside for this purpose. Additionally, it is apparent that each of the parties have gone to considerable cost and expense in the preparation of this case for the hearing to commence on the next business day, namely Monday. The Court must consider whether the matters relied upon by the respondent are of sufficient weight to displace the fixture upon which both parties have been reliant.

7 Having heard Mr Lancaster for the respondent, the Court is mindful of the fact that the issues raised could impact and affect two major heads of compensation, namely the use of the land and the value of the business. The encroachment could also be a complicating factor. Since each of those matters will directly impact upon the assessment of compensation, the Court considers that to commence the hearing on Monday could be futile. Questions might arise which cannot be resolved, both in examination-in-chief and in cross-examination. Despite the fact that the parties have prepared themselves for the hearing on Monday, I consider that there are cogent reasons which warrant a vacation of the hearing dates.

8 In the State of Queensland & Anor v JL Holdings Pty Ltd (1996) 141 ALR 353 the High Court of Australia referred to an analogous case where a party sought an amendment to pleadings. In determining that the Court should have permitted the amendment, the High Court referred to the overriding consideration being the interests of justice. If a vacation of the hearing date is granted, any prejudice which might be occasioned to the applicant can be remedied by an order for costs. Any compensation will attract interest on the sum awarded. The Court therefore determines that the hearing dates should be vacated.

9 The Court is not in a position at this stage to make any order as to costs arising from the vacation of the hearing dates. That issue must await the trial. It can then be determined whether the reasons advanced by the respondent for seeking the vacation of the hearing date were justified.

10 Accordingly, the orders which the Court make are as follows:

(1) The hearing date fixed for 7 April 2003 to 10 April 2003 be vacated;
(2) The parties be at liberty to approach the Registrar at a time mutually agreed between themselves to obtain fresh hearing dates;
(3) Costs reserved.