Arkinstall v Queensland Electricity Commission

[1992] QLC 31

[1992] QLC 31

 

 

LAND COURT,

BRISBANE.

13th August, 1992.

Re:     Determination of Compensation -
  Resumption of Easement for Electric Works
  (Transmission Line) purposes -
  A91-60

RD and EP Arkinstall

v.

Queensland Electricity Commission

DECISION ON APPLICATION FOR COSTS

Following the delivery of judgment in the above matter the respondent Commission has made application for an award of costs incurred during the hearing in its favour. The relevant cost provisions in the Acquisition of Land Act of 1967 is Section 27 which reads -

"27(1)Subject to this section , the costs of and incidental to the hearing and determination by the Land Court of a claim for compensation under this Act shall be in the discretion of that Court.

(2)If the amount of compensation as determined is the amount finally claimed by the claimant in the proceedings or is nearer to that amount than to the amount of the valuation finally put in evidence by the constructing authority, costs, if any,  shall be awarded to the claimant; otherwise, costs, if any, shall be awarded to the constructing authority."

Now the original claim for compensation in this matter was in the sum of $260,000.  This claim was amended by leave of the Court at the outset of the hearing to $350,000.  The amount of the valuation finally put in evidence by the respondent Commission was $99,889.  Judgement was entered in the sum of $186,500.
           In re: Moyes and Ors v. Townsville City Council (1979) 6 QLCR 271 at 274, the Land Appeal Court had this to say when considering an application for costs:-

"First, we do not think that the presence of sub-section 2 of Section 27 in the Act should be regarded as some sort of legislative suggestion that, where the claim is substantially more than the amount awarded, and the amount put in evidence by the authority is not substantially less than the amount awarded, the Court should not merely refrain from awarding any costs to the claimant, but should award costs to the authority.  Second, where the Court is considering whether it should award costs to an authority, it could be wrong to have regard merely to the amounts of the claim and of the award and of the value put in evidence by the authority.  We would think that usually it would be more relevant to enquire whether the conduct of the claimant, including his making of an exorbitant claim, if he had made one, has been such as to force the authority, unreasonably and unnecessarily, into litigation."

Now in this case it cannot be said that the conduct of the claimants has been such as to force the Commissioner unreasonably and unnecessarily into litigation.  True it is that my finding as to compensation referred a method of valuation used by the Commissioner's valuer who was called in the case, but this is not to say that the claimants' valuer was blatantly in error in using an alternative method of valuation, and certainly the claimants were successful in obtaining a significant advance in terms of the compensation award over and above the valuation finally put in evidence by the Commission.
I have for my consideration a supplementary submission by Counsel for the claimants that they are entitled to an award for costs. He says that if account is taken of the Court's award of compensation for disturbance in the sum of $5,495.84 and for interest on the award of compensation at the rate of 11% per annum for the sums and for the periods as set out in the judgment (interest is calculated by the claimants to be in the sum of $35,975.25) then the total amount of compensation determined is $227,970. This sum, it is submitted, is nearer to the claim for compensation, ($350,000) than to the valuation finally put in evidence by the respondent Commission ($99,889). This submission is based on the assumption that interest is part of the amount of compensation. The Court is referred to Section 28 (1) of the Acquisition of Land Act, the relevant part of which reads:-

"Interest so ordered to be paid shall be payable as if it were part of the compensation in question and shall be added to the amount thereof and be payable by the constructing authority accordingly."

Counsel for the respondent Commission contends that the supplementary submission made on behalf of the claimant should be rejected. He says, in respect of the disturbance items which were limited to professional fees, there is no separate statutory basis for disturbance as a separate head of compensation. It is further submitted by the respondent that the previously quoted part of Section 28 (1) of the Acquisition of Land Act does not convert interest on compensation to compensation per se. In addition, Section 28 (1) also provides that interest "may" be awarded, and this shows that an award of interest by the Court is discretionary. A further submission by the respondent is that interest does not form any part of a compensation claim in the context of Section 27(2) of the Acquisition of Land Act.
           I agree with and adopt the reasoning of Counsel for the respondent.  Interest forms no part of a compensation award - it is, if awarded, additional to compensation payable for resumed land and interest really takes the place of possession.  I find that compensation for disturbance is part of compensation but of course if in this case the sum awarded for disturbance is added to that of compensation for the loss of land, the award is still not nearer to the claim for compensation than the valuation finally put in evidence by the respondent Commission.
           In the exercise of my discretion in the matter, I make no order as to costs.

Member of the Land Court.