Mine Subsidence Board v Maria Vervoon [2008] NSWCA 280

New South Wales Court of Appeal

CITATION: Mine Subsidence Board v Maria Vervoon [2008] NSWCA 280

HEARING DATE(S): 22 July 2008

JUDGMENT DATE: 31 October 2008

JUDGMENT OF: Beazley JA at 1; McColl JA at 166; Nicholas J at 167

1. Appeal dismissed; 2. Cross-appeal allowed in part; 3. Remit the following matters to the Land and Environment Court for determination in accordance with these reasons and for the making of orders for the disposition of the application (including orders of remitter to the Board) relating to: DECISION: (a) the compensation to which the respondent is entitled as a result of damage to her property due to mine subsidence; (b) the compensation to which the respondent is entitled in relation to rent under s 12(1)(c) of the Mine Subsidence Compensation Act 1961; (c) costs of the hearing before Talbot J; 4. Order that the appellant (the Mine Subsidence Board) pay the respondent's costs of the appeal and the cross-appeal.

CATCHWORDS: JUDGMENT – reasons – whether trial judge failed to consider expert evidence critical to appellant's case – whether evidence critical - PRACTICE and PROCEDURE – failure of counsel to cross-examine opposing experts on evidence said to be critical to its own case – consequences of failure at trial to treat evidence as critical - EVIDENCE – expert evidence – failure to include matters said to be critical to one party's case in joint expert report – whether such failure indicates material not critical – failure to cross-examine on matters said to be critical – consequences of such failures - MINE SUBSIDENCE - assessment of the extent to which property was affected by mine subsidence – failure to give reasons for assessment - unreasonable apportionment of damage