Anthony De Lisle Venn v Elcom Collieries Pty Ltd [2006] NSWDC 60

New South Wales District Court

CITATION: Anthony De Lisle Venn v Elcom Collieries Pty Ltd [2006] NSWDC 60

HEARING DATE(S): 20 - 21 September 2005

JUDGMENT DATE: 4 October 2005

JUDGMENT OF: Murrell SC DCJ

PARTIES: Anthony De Lisle Venn (Plaintiff) Elcom Collieries Pty Ltd (Defendant

FILE NUMBER(S): 3611/01

COUNSEL: Mr L V Gyles (Defendant)

SOLICITORS: C Kardell (Plaintiff) R Cutler (Defendant)

Introduction

1 Since 1976, Mr Venn has owned picturesque land at Colongra Point, Lake Munmorah on the Central Coast of New South Wales. In the 1980s, the defendant, a coal miner, extracted coal from under Mr Venn's land. On 2 August 1992, Mr Venn observed with horror that, overnight, the Lake had flooded his land to the extent that his jetty and boat ramp were submerged, his foreshore beach was inundated and water encroached onto his garden. The damage was caused by subsidence associated with underground coal mining by the defendant in the mid 1980s.

2 In September 1992, Mr Venn received an apology from the defendant's mine manager, who promised that the land would be restored within six weeks. To date, that promise remains unfulfilled. In July 1995, with Mr Venn's consent, the defendant obtained development approval to do work worth $300,000 on Mr Venn's land. Between February and June 1996 the defendant completed a substantial amount of that work. However, Mr Venn was dissatisfied with the standard of work. Work ceased. There were negotiations. In mid 1996, the defendant prepared two draft deeds of release, but neither was signed by the defendant or Mr Venn. There were fresh negotiations.

3 In February 1998, there was a second major subsidence.

4 Other landowners who were affected by the 1992 subsidence commenced proceedings. Mr Venn did not commence these proceedings until 18 April 2001, almost three years after the normal six year limitation period expired in August 1998.