Leclercq v Essential Energy
[2015] NSWLEC 50
•27 March 2015
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Leclercq v Essential Energy [2015] NSWLEC 50 Hearing dates: 27 March 2015 Date of orders: 27 March 2015 Decision date: 27 March 2015 Jurisdiction: Class 3 Before: Craig J Decision: The Court may proceed to hear and determine the Applicants’ claim for compensation.
Catchwords: PROCEDURE - application to extend time for filing of compensation appeal - whether Applicants satisfied the Court they had good cause for failure to lodge appeal - whether error of solicitor establishes good cause - no prejudice suffered by the Respondent - appropriate to allow matter to proceed to determination Legislation Cited: Land Acquisition (Just Terms Compensation) Act 1991 (NSW) Cases Cited: Sydney Nationwide Realty Pty Ltd v Sydney Metro; IAE EDU NET Pty Limited v Sydney Metro [2011] NSWLEC 19 Category: Procedural and other rulings Parties: Roland Marcel Leclercq (First Applicant)
Rosemary Susan Leclercq (Second Applicant)
Essential Energy (Respondent)Representation: Counsel:
L Katsinas (First and Second Applicants)
S Nevin (solicitor) (Respondent)
Solicitors:
Aitken Partners (First and Second Applicants)
Sparke Helmore Lawyers (Respondent)
File Number(s): 30108 of 2015
EX TEMPORE Judgment
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Roland and Rosemary Leclercq are the owners of land near Gulgong in Central Western New South Wales being land known as 1319 Castlereagh Highway, Tallawang. By Notice published in the Gazette on 29 August 2014 the Respondent acquired an easement for overhead power lines affecting that land. The acquisition by the Respondent was undertaken pursuant to the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (the Compensation Act).
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Being dissatisfied with the compensation offered by the Respondent for acquisition of that interest in their land, the Applicants commenced proceedings in this Court for determination of the compensation to which they were entitled under the Compensation Act. However, before those proceedings progress, there is a preliminary matter that must first be addressed. The proceedings were not commenced within the time limited by s 66(1) of the Compensation Act.
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The compensation notice required to be given to the Applicants under s 42 of the Compensation Act is dated 14 October 2014. It is acknowledged by the Applicants’ solicitor to have been received by her on or about that date. The objection that has been filed in this Court pursuant to s 66 of the Act was not filed until 12 February 2015. By s 66(1) of the Compensation Act, the time by which an objection to compensation may be filed with the Court is 90 days after receipt of the compensation notice. That would indicate that the objection was required to be filed by 12 January 2015. As a consequence, the objection that was filed commencing these proceedings was about one month out of time.
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However, that circumstance is not necessarily fatal to the application. Section 66(3) of the Compensation Act provides that where proceedings under the section have not been commenced within 90 days from the receipt of a compensation notice, the Court is not to hear and dispose of that person’s claim “unless satisfied that there is good cause for the person’s failure to lodge the objection within that period”.
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The Applicants seek to establish that there is good cause for their failure and thus they seek to have the Court proceed to determine their claim. That course is not opposed by the Respondent.
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In order to establish good cause they rely upon the affidavit evidence of their solicitor Peta Olive. Ms Olive’s evidence reveals that she had been acting for the Applicants for some time prior to the Respondent acquiring an interest in the Applicants’ land. Her evidence also establishes that there had been negotiations proceeding between the parties prior to the receipt of the compensation notice.
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These negotiations were being undertaken when, on or about 14 October, Ms Olive received a copy of the compensation notice addressed to the Applicants. Negotiations continued thereafter for some weeks. It was not until December of 2014 that Ms Olive received instructions to reject the compensation that had then been proposed by the Respondent’s advisers.
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Ms Olive candidly admits that the failure to have commenced proceedings in this Court under s 66(1) within the 90 day period after receipt of the compensation notice was entirely her fault. At [15] of the affidavit sworn by her on 9 February 2015, she says:
“Upon receipt of the Compensation Notice, I misunderstood the statutory requirements. I was under the misapprehension that where at paragraph 4 of the Respondent’s letter to the Applicants the Respondent stated “Please note that under that LSJTC Act you have 90 days from the date of this letter to either accept or reject the offer”, this meant that the Applicants had 90 days from the date of the Compensation Notice within which to submit their Claim for Compensation to the Respondent, namely by 12 January 2015.”
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The expression “good cause” is not defined in the Compensation Act. In the context of s 66(3), the “good cause” about which the Court is to be satisfied is the failure to lodge an objection to an offer of compensation within the stipulated period. That statutory provision, so it seems to me, is to be understood as requiring a legally acceptable or sufficient explanation for the failure (Sydney Nationwide Realty Pty Ltd v Sydney Metro; IAE EDU NET Pty Limited v Sydney Metro [2011] NSWLEC 19 (at [22])).
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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. In principle, these other factors may 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 the proceedings, although the last requirement is unlikely to present difficulty, given the statutory entitlement to compensation.
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I am satisfied that good cause has been shown. The period by which the 90 day period exceeded is, as I have indicated, about one month. During the 90 day period negotiations to resolve the claim were continuing. The Respondent would have been in no doubt that the quantum of compensation was contentious. It would also have been aware of the quantum of compensation now being sought. No prejudice is therefore suffered by the Respondent and it does not contend otherwise.
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A significant component of the claim made by the Applicants concerns disturbance. While the matter is not yet the subject of evidence, it is not possible to conclude that the claim lacks any foundation. As a consequence of my consideration of the application, I am satisfied that it is appropriate to allow the matter to proceed to determination.
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For the reasons that I have articulated, I make the following determination:
Being satisfied that good cause has been shown by the Applicants for their failure to lodge the present application within 90 days after receiving a compensation notice from the Respondent I determine that the Court may proceed to hear and determine the Applicants’ claim for compensation.
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Amendments
07 April 2015 - Para 3 , Line 5 the date has been changed from 12 February 2014 to 12 February 2015.
Decision last updated: 07 April 2015
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