Mustafa Huseyin and Melike Huseyin are the proprietors of land known as 47 South Street, Schofields. By an acquisition notice published in the Gazette on 28 August 2015, Roads and Maritime Services, the respondent in these proceedings, compulsorily acquired part of that land. An application Class 3 objecting to the compensation offered by the respondent was filed in this Court on 9 March 2016.
By a notice of motion filed on 9 March 2016, the applicants seek an order enabling them to prosecute these proceedings given, as will shortly be made apparent, that they did not commence these proceedings within the time allowed by the relevant statutory provisions. The motion is supported by an affidavit of their solicitor, Mario Azzopardi, as well as an affidavit from Frank Carrapetta, a valuer.
Following publication of the acquisition notice in August 2015, the respondent served upon the applicants a compensation notice conformably with s 42 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (the Compensation Act). That notice stated the amount of compensation that had been determined by the Valuer-General in accordance with the Act and advised that the compensation stated in the notice was that which was offered by the respondent as compensation for the acquisition of its interest in the land of the applicants. The compensation notice was dated and sent on 20 October 2015.
Leclercq v Essential Energy [2016] NSWLEC 33 | Case summary | Zoe
At that time the applicants had not engaged any legal representation. Rather, they seem to have relied upon Mr Carrapetta to advise them, not only upon the compensation that Mr Carrapetta considered that they were entitled to receive, but also generally as to the conduct of negotiations and, I apprehend, any proceedings to be brought in this Court. Unfortunately, Mr Carrapatta did not provide timely advice required by the applicants in order to respond to the offer of compensation made by the respondent.
Apart from the difficulties that the applicants had in obtaining fulsome advice from Mr Carrapetta, they spent considerable time interstate, attending to a grandson who was suffering what was potentially a terminal illness. That took them out of the State for long periods.
On 13 January 2016 the applicants signed what is described as the Form 2 Application for Compensation with which they had been provided by the respondent. They signed the form in blank, leaving it to Mr Carrapetta to complete the details of the claim which they believed would then be promptly provided to RMS. Unfortunately, nothing happened on that date or indeed for some weeks thereafter. Had the form then been completed and then proceedings commenced shortly thereafter, those proceedings would have been commenced in time.
It was not until late January 2016 that the applicants' solicitor was retained to assist in these proceedings. Even then, because of the absence of the applicants from the State, he was uncertain as to the detail of his instructions. However, he did indicate to RMS at that time that his clients did object to the compensation offered. There was also then discussion with an officer of the respondent concerning what Mr Azzopardi came to understand was the commencement of any proceedings out of time. He was informed by the officer that no objection would be made to the lodgement of a late application with the Court. Even then the applicants apparently sought the advice of Mr Carrapetta before he sanctioned the commencement of proceedings in this Court, which as I have said, were commenced on 9 March 2016.
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 to comply with s 66(1) the objection was required to be lodged on or before 20 January 2016. As I have indicated the Class 3 application commencing these proceedings was not filed until 9 March 2016, indicating a period of some seven weeks out of time.
Failure to have lodged an objection within 90 days is further addressed in s 66(3) of the Compensation Act. The subsection provides:
"66 Objection against amount of compensation offered
…
(3) 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 cause to which the evidence of both Mr Azzopardi and Mr Carrapetta are directed. Their focus, as it must be, is upon the 90 day period that is provided for the making of the objection. What occurred during that period has already been succinctly summarised by me. That is, a combination of unawareness of the limitation period, the reliance upon Mr Carrapetta, in effect to process the application which for reasons he explains he was unable to do, and the absence of the applicants because of the understandable attention they wished to give to a very sick grandchild.
The expression "good cause" as used in s 66(3) of the Compensation Act is not defined in that Act. 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 application 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 applicants 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 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 the proceedings. That last factor is unlikely to present a difficulty to an applicant in the position of the present applicants given the statutory entitlement to have the Court determine compensation for acquisition of their land if the offer made by the acquiring authority is not accepted.
I am satisfied that good cause has been shown in this case. While the period by which the 90 day period was exceeded was about seven weeks, no prejudice is claimed on the part of the respondent by reason of that delay. That position is understandable. The evidence reveals, so I have indicated, that both before and during that period the applicants made clear that they did not accept the offer of compensation that had been made to them. They continued, through Mr Azzopardi, to negotiate to be paid a higher sum.
In concluding that good cause has been shown, I also take into account the position of the respondent. It has fairly indicated that it raises no objection to the commencement of proceedings outside the 90 day period and has indicated today its position that it does not wish to oppose the applicants' notice of motion.
For all these reasons I make the following determination:
1. Being satisfied that good cause has been shown by the applicants for their failure to lodge their present objection within 90 days after receiving a compensation notice from the respondent, I determine that the Court may proceed to hear and determine their claim for compensation under s 66(2) of Land Acquisition (Just Terms Compensation) Act 1991 (NSW).
2. By consent make orders in accordance with the Short Minutes of Order initialled by me and filed with the papers.
3. Direct that the parties approach the Registrar by eCourt not later than 4.30pm on Monday 4 April 2016 to obtain a date for a s 34 conciliation conference between 13 May and 17 June 2016.
4. Stand over the proceedings for a second directions hearing on Friday 24 June 2016.
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Decision last updated: 06 April 2016