Harcorp Pty Limited (Harcorp) is the proprietor of land known as 32 Bantry Bay Road, Frenchs Forest. By an acquisition notice published in the Gazette on 21 August 2015 the land was compulsorily acquired under the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (the Compensation Act).
Before me is a notice of motion by Harcorp by which it seeks an order enabling it to continue to prosecute these proceedings because, as will shortly be made apparent, they were not commenced within the time allowed by the relevant statutory provisions. The motion is supported by an affidavit of Wilhelmina Howard, who is the sole director of Harcorp.
Following publication of the Acquisition Notice in the Gazette, the acquiring authority, Roads and Maritime Services (RMS), served a compensation notice conformably with the terms of the Compensation Act on 9 October 2015. That notice stated the amount of compensation that had been determined by the Valuer-General in accordance with the Act and indicated that the amount so determined was offered to Harcorp as compensation for the acquisition of its interests in the Bantry Bay Road land.
The evidence discloses that for some time prior to the acquisition of the land Harcorp had retained a solicitor to advise it, although the retainer of that solicitor was apparently terminated some time in August 2015 when the solicitor no longer remained a member of the legal firm that had been retained by Harcorp. Ms Howard also says that at that time the company had become concerned about the manner in which the matter was being conducted by the solicitor and as a consequence she did not pursue any other solicitor to act for the company.
In the meantime, Ms Howard maintained contact with a Mr Quill from RMS, discussing the likely compensation and, so far as I can gather, subsequent to the receipt of the compensation notice, continued to speak to Mr Quill in an endeavour to resolve the proceedings without the need to resort to the Court. Unfortunately, no agreement was reached, with the consequence that these proceedings were not commenced until an application was filed in the Court on 2 March 2016.
Ms Howard says, and her evidence is not challenged, that she was unaware of any time limitation upon the making of an application for compensation until she was informed that it was out of time when she sought to file the application with the Court. The motion seeks an order that the company be allowed to continue to prosecute these proceedings.
The need for what might be described as the leave that is presently sought is a consequence of the provisions of ss 66(1) and 66(3) of the Compensation Act. Section 66(1) provides that a person who has claimed compensation may, within 90 days after receiving a compensation notice, lodge with this Court an objection to the amount of compensation offered. By s 66(2) the Court is then to hear and dispose of that claim.
In the present case the objection, in order to be sustained under 66(1), was required to have been lodged on or about 9 January 2015. As I have indicated the proceedings were not in fact commenced until 2 March 2016 by which time the proceedings were then almost two months out of time.
A failure to have lodged an objection to compensation within 90 days is further addressed in s 66(3) of the Compensation Act. This section provides:
"A person who does not lodge an objection within the 90-day period and who is taken to have accepted the offer of compensation under section 45 may nevertheless lodge an objection under this section, but the Land and Environment Court is not to hear and dispose of the person's claim for compensation unless satisfied that there is good cause for the person's failure to lodge the objection within that period."
It is the satisfaction of the requirement to show good cause to which the evidence that I have briefly summarised is directed. The expression "good cause" as used in s 66(3) of the Compensation Act is not defined. As I have said, in the context of the subsection the good cause about which the Court is to be satisfied is to be directed to the failure to lodge an objection to an offer of compensation within the requisite period. That statutory provision, so it seems to me, is to be understood as requiring a legally acceptable or sufficient explanation for the failure of the applicant to have commenced proceedings within time (Sydney Nationwide Realty Pty Ltd v Sydney Metro; IAE EDU NET Pty Limited v Sydney Metro [2011] NSWLEC 19; 210 LGERA 202).
As I observed in Leclercq v Essential Energy [2015] NSWLEC 50 while the 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 explanation that is offered in order to persuade the Court to exercise the discretion 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 the proceedings. The last factor is unlikely to present a difficulty to an applicant in the position of the present applicant given its statutory entitlement to have the Court determine compensation when the offer of the acquiring authority is not accepted.
In this case I am satisfied that good cause has been shown. While the period by which the 90 day term was exceeded was a little under two months, no prejudice is claimed on the part of the respondent by reason of that delay. That position is understandable. As I have said, the evidence shows that during that period Ms Howard, on behalf of the applicant, was in discussion with the representative of the respondent in which it was apparent that the compensation offered was not acceptable. They apparently continued to negotiate to resolve the claim.
I accept that Ms Howard, who is now representing the company, effectively acts as a self-represented litigant and, as a combined result of the loss of legal services and a lack of any understanding of the requirement for proceedings to be commenced within the required time, the timely commencement of proceedings was simply not addressed. Once advised by the Court of the necessity to commence proceedings and to seek the leave that is presently sought, the company through Ms Howard, has acted promptly.
I should add that in reaching the conclusion that sufficient cause has been shown to continue the proceedings, I find support in the position taken by the respondent who expressly says that it does not oppose the extension of time that is presently sought.
For these reasons I make the following determination:
1. Being satisfied that good cause has been shown by the applicant for its failure to lodge the present objection within 90 days after receiving a compensation notice from the respondent, I determine that the Court may proceed to hear and determine its claim for compensation under s 66(2) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW).
2. By consent I make orders and give directions in accordance with the Short Minutes of Order initialled by me and filed with the papers.
3. Give leave to the parties to approach the Registrar by email or by eCourt not later than 8 April 2016 in order to obtain a date for a s 34 conciliation conference.
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Decision last updated: 06 April 2016