Michelotti v Roads Corporation

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CIVIL JURISDICTION

VALUATION COMPENSATION AND PLANNING LIST

No. 5482 of 2009

BETWEEN

GUISEPPE MICHELOTTI and TECLA MICHELOTTI	Plaintiffs
V
ROADS CORPORATION	Defendant

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 May 2009
DATE OF JUDGMENT:	14 May 2009 (Revised reasons published 19 May 2009)
CASE MAY BE CITED AS:	Michelotti & Anor v Roads Corporation
MEDIUM NEUTRAL CITATION:	[2009] VSC 195

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Resumption and acquisition of land – Compensation – Application to Supreme Court for extension of time to claim – Whether prior administrative decision of Minister to refuse extension precludes application to Court – Factors relevant to discretion – Extension granted - Land Acquisition and Compensation Act 1986 ss 6, 7, 8, 22, 37(1), 37(2) and 106(1) - Interpretation of Legislation Act 1984 s 40(a).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr G Garde QC with Dr R Sadler	Rennick & Gaynor
For the Defendant	Mr M Wright QC with Ms J Forsyth	Garland Hawthorn Brahe

HIS HONOUR:

1. This an application for an order under s 106(1)(d) of the Land Acquisition and Compensation Act 1986 (“the Act”) that the time fixed by s.37(2) of the Act within which the plaintiffs may make a claim for compensation pursuant to s.37(1) of the Act be extended until 30 days after the date of the hearing and determination of this proceeding. The time fixed by s 37(2) is two years from the date of the acquisition.

1. The plaintiffs rely on four affidavits which are on file and which I have read and taken into account, as I have the single affidavit which was filed on behalf of the defendant.

1. The plaintiffs are the registered proprietors of the land being Lot 1 of Plan of Subdivision No.138677, more particularly described in Certificate of Title Volume 09445 Folio 613 at Stephens Road, Officer (“the plaintiffs’ land”).

1. From 1983 until at least the commencement of the events in question in February 2006, the plaintiffs were in adverse possession of land of approximately 1600 square metres north of the boundary of and adjoining the plaintiffs’ land (“the occupied land”).  By reason of their adverse possession the plaintiffs were, as at February 2006, entitled to be registered as the proprietors of the occupied land.  The occupied land is part of land in Lot 4 on Plan of Subdivision LP143617 then registered in the name of Jean Caroline Richardson (“the Richardson land”).

1. By notice of acquisition published in the Government Gazette on 3 February 2006 the defendant compulsorily resumed the Richardson land including the occupied land.  The compulsory acquisition was for the purpose of construction of the Pakenham Bypass.  The plaintiffs have not at any time been served with any notices or statements in the prescribed form setting out their rights in respect of the acquisition.[1]

   [1]Cf ss 6, 7, 8 and 22 of the Act. However the plaintiffs eschewed any suggestion that the absence of such notices or statements rendered the acquisition invalid.…