Elhazouri v Subsidence Advisory NSW [2019] NSWLEC 41

Land and Environment Court New South Wales

Medium Neutral Citation: Elhazouri v Subsidence Advisory NSW [2019] NSWLEC 41 Hearing dates: 7 and 28 March and 1 April 2019 Date of orders: 10 April 2019 Decision date: 10 April 2019 Jurisdiction: Class 3 Before: Moore J Decision: See orders at [140] Catchwords: MINE SUBSIDENCE – compensation claim for damage to dwelling and other ancillary structures under now repealed Mine Subsidence Compensation Act 1961 – subsidence at least partial cause of damage claimed – dispute as to extent damage caused by subsidence – competing expert evidence from structural engineers – held causation of damage to dwelling and incorporated garage was mine subsidence – no evidence to support claim for damage to ancillary structures – two months to be allowed to parties to seek to resolve scope and methods of rectification of damage to dwelling MINE SUBSIDENCE – compensation claim for damage to dwelling under Coal Mine Subsidence Compensation Act 2017 not subject to proceedings – no findings with respect to claim under 2017 legislation COSTS – Applicant self-represented – Applicant entitled to limited costs consistent with approach in Cachia v The Hills Shire Council [2010] NSWLEC 136 – contingent costs order appropriate to permit Respondent to make submissions on costs – if no request to be heard within 28 days, limited costs order in Applicant's favour Legislation Cited: Coal Mine Subsidence Compensation Act 2017 Land and Environment Court Act 1979 Land and Environment Court Rules 2007 Mine Subsidence Compensation Act 1961 Uniform Civil Procedure Rules 2005 Cases Cited: Alinta LGA Limited (Formerly The Australian Gas Light Company) v Mine Subsidence Board [2008] HCA 17 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Cachia v Hanes (1994) 179 CLR 403 Cachia v The Hills Shire Council [2010] NSWLEC 136 Jemena Ltd v Mine Subsidence Board [2012] NSWSC 1509 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Mine Subsidence Board v Jemena Ltd and Jemena Gas Networks (NSW) Ltd (2013) 86 NSWLR 161; [2013] NSWCA 465 Category: Principal judgment Parties: Nicolas Elhazouri (Applicant) Subsidence Advisory NSW (Respondent) Representation: Counsel: Ms S Elhazouri, agent (Applicant) Ms M O'Brien, barrister (Respondent)