Leppington Pastoral Co Pty Ltd v Valuer General [2009] NSWLEC 158

Land and Environment Court of New South Wales

CITATION : Leppington Pastoral Co Pty Ltd v Valuer General [2009] NSWLEC 158

APPLICANT Leppington Pastoral Co Pty Limited PARTIES : RESPONDENT Valuer General

FILE NUMBER(S) : 30057 of 2009; 30058 of 2009

CORAM: Pepper J

KEY ISSUES: PRACTICE AND PROCEDURE :- application to vacate hearing dates - subsequent events necessitating vacation unforeseen - no delay in making application - application granted

LEGISLATION CITED: Civil Procedure Act 2005 ss 56, 57 and 58 Valuation of Land Act 1916

CASES CITED: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27

DATES OF HEARING: 8 September 2009

EX TEMPORE JUDGMENT DATE : 8 September 2009

APPLICANT Mr I Hemmings SOLICITORS Marsdens Law Group LEGAL REPRESENTATIVES: RESPONDENT Mr J Atkin SOLICITORS Crown Solicitor's Office

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PEPPER J

8 September 2009

30057 of 2009 & Leppington Pastoral Co Pty Limited v 30058 of 2009 Valuer General

EX TEMPORE JUDGMENT

Introduction 1 HER HONOUR: Before the Court is a notice of motion filed 31 August 2009 ("the motion") for matters 30057 of 2009 and 30058 of 2009. Only orders 1, 2 and 4 were moved upon by the applicant to the motion. These orders effectively seek the vacation of the hearing dates for this matter on 22 and 23 September 2009. The orders sought are by consent. 2 The matters are class 3 applications by way of appeals against the Valuer General's determination of compensation and valuation pursuant to Pt 4 Div 1 of the Valuation of Land Act 1916. Factual Background and Evidence 3 In support of the motion the applicant read two affidavits. The first is an affidavit of Mr Ralph Bruce, sworn 28 August 2009. Mr Bruce is employed as the General Manager (Property), of Greenfields Development Company Pty Limited ("Greenfields"). Greenfields is a property development company that is presently undertaking an urban development at Oran Park on part of the land owned by the applicant ("the land"). 4 In the course of making preparations for the development of the land for residential purposes, it has been discovered that the land is affected by contamination. A preliminary environmental audit and review investigation of the land has been carried out by Douglas Partners Pty Limited ("Douglas Partners"). Douglas Partners was engaged in or about June 2009 to investigate the extent and effect of the contamination. Its initial report is attached to the affidavit of Mr Bruce. Due to the extent of the contamination its investigation has not been completed and the report is only preliminary in nature. A final report will not be completed in time for the hearing. 5 The applicant has obtained an initial estimate with respect to the cost of remediation and rehabilitation works for the land, however, because the extent of the contamination is not fully known, an estimate for the remedial action plan works is, understandably, unable to be provided at this time. 6 The second affidavit that the applicant read in support of the motion is from Mr John Graveur, sworn 28 August 2008. Mr Graveur is a registered real estate valuer who has been retained by the applicant for the purpose of the proceedings. He has been informed by Mr Ralph Bruce that the land is contaminated. He has been provided with a copy of the preliminary report of the contamination assessment by Douglas Partners. 7 Mr Graveur notes that TJ & RF Fordham Pty Limited, a firm engaged to provide an estimate of costs, is unable to do so until further assessment and testing of the land is undertaken by Douglas Partners. 8 As a consequence of the discovery of contamination, and in light of the information contained in the Douglas Partners report, Mr Graveur deposes that he is unable to express a final opinion concerning the value of the land as at 1 July 2004 and 1 July 2007 (the relevant dates for the purpose of the appeals). To provide a conclusive opinion he requires a final estimate of the cost of the removal of the improvements on the land and the cost of the land's rehabilitation and remediation. 9 It is in these circumstances that the application to vacate the hearing dates is made. Submissions 10 The hearing dates were set down on 19 June 2009 by Registrar Gray upon referral from the list judge, Justice Sheahan. The parties were aware that the land was contaminated at the time the matter was set down for hearing but were not aware of the magnitude of the contamination. 11 Mr Hemmings, appearing for the applicant, properly and frankly conceded that the matter probably ought not to have been fixed that day given that the extent of the contamination was not fully known. However, he submitted, at the time of the referral it was anticipated by the parties that with a suitably crafted timetable, hearing dates could nevertheless be set. It was only later when the true scope of the contamination was discovered, that it became apparent that it would no longer be possible to maintain the hearing dates. Consideration 12 I accept the unchallenged submissions of the applicant that the reason for the vacation of the hearing dates was largely unforeseeable and was not the fault of any party. 13 Furthermore, I find that the applicant has moved quickly in bringing the matter back before the Court. 14 Most importantly, I find that the appeal cannot take place without the parties' expert valuation evidence and that evidence cannot be finalised until the breadth of the contamination and the cost of its remediation is known. 15 In these circumstances, I am satisfied that the overriding purpose in relation to the conduct of litigation in this Court and the objects of case management (see ss 56 and 57 of the Civil Procedure Act 2005 ("the CPA")) will be met by vacating the hearing dates and setting a new timetable. I am, moreover, of the view that I am acting in accordance with the dictates of justice in granting the relief sought (in this regard see the Court's obligations contained in s 58 of the CPA). 16 Nothing in the recent decision of Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [25]-[30] and [95] and following, dissuades me from this view. Conclusion and Orders 17 It is therefore appropriate that I make the orders sought in the motion. 18 The formal orders of the Court are: (1) vacate the hearing dates of 22 and 23 September 2009 in matters 30057 of 2009 and 30058 of 2009; and

(2) relist the matter before the Registrar on 18 September 2009 for the setting of a new timetable.

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