Bamchin Holdings Pty Ltd v The Director-General, Department of Transport

[1993] QLC 30

[1993] QLC 30

 

  LAND COURT

BRISBANE.

22 October, 1993.

Re:     Application for costs.
  Claim for Compensation.
Acquisition of Land Act 1967 - s.27
  A92-72 and A92-73

Bamchin Holdings Pty Ltd

v.

The Director-General, Department of Transport

D E C I S I O N

This is an application for costs made by the respondent.
           In a decision handed down on 17 September, 1993 compensation for the taking by the respondent of certain lands held by the claimant was determined in the sum of $81,500 being made up on $80,000 for land and $1,500 for valuation fees incurred in the preparation and lodgement of the claim.
           Compensation covered the resumption of two adjoining parcels of land which were resumed on different dates.  A claim in excess of $400,000 was served on the constructing authority following the first resumption.  When the matter came on for hearing leave was sought and obtained to amend the claim (covering the resumption of both parcels) to a combined sum of $210,000 excluding a claim of $1,500 for valuation fees which the respondent agreed to pay.  The claim as amended was based on a valuation made by registered valuer Mr M Stallman.  He valued for a higher and better use than did the valuer for the respondent Mr TJ Gould.  In forming his opinion on highest and best use Mr Stallman had regard to the evidence of a town planner who was called on behalf of the claimant.  A town planner was also called on behalf of the respondent.  His report supported the assessment made by Mr Gould.  It came out in evidence that were Mr Stallman to make an assessment of compensation on the highest and best use assessed by Mr Gould the result would not be significantly different from that obtained by Mr Gould.  The decision thus turned on the question of highest and best use which in turn was dependent upon the evidence of the town planning consultants.  The Court preferred the evidence given by the expert on behalf of the respondent.  The award coincided with the assessment made by Mr Gould.
           The respondent has asked for costs.
Under s.27 of the Act costs of and incidental to the hearing and determination of a claim for compensation are in the discretion of the Court subject to sub s.2 of the section which insofar as is relevant provides -

"(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."

In the circumstances of this case costs, if any, can only be awarded to the respondent.
           The principal authority assisting the Court in the exercise of its discretion is that of Moyses and Ors v. Townsville City Council (1979) 6 Q.L.C.R. 271. At p. 274 the Land Appeal Court said -

"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 an 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 has made one, has been such as to force the authority; unreasonably and unnecessarily, into litigation."

In supporting the application the respondent says that the claim served  on the constructing authority (24 February, 1992) was in the sum of $880,000; that an offer of $80,000 was made in August, 1992 and rejected; that "without prejudice" negotiations with the claimant proved unsuccessful and that the claim remained unchanged until amended on the day of the hearing.
           It is submitted on behalf of the claimant that the circumstances of the case are such that each party should bear its own costs for reasons that the result turned upon an interpretation of town planning documents.  This expert evidence was not exchanged until the morning of the hearing despite the provisions of s.41B of the Land Act 1962.  Either party could have made application under the section.  The Court preferred the evidence of the expert planner called by the respondent in deciding the attitude which the hypothetical prudent purchaser would take to the planning scheme.
           In consideration of all the circumstances of the case I am of the opinion that the respondent is entitled to costs.  Accordingly it is ordered in the exercise of the Court's discretionary powers that the claimant pay the constructing authority's costs of and incidental to the hearing and determination of the claim.  The amount of such costs shall be ascertained and fixed by the costs taxing officer of the Supreme Court at Brisbane according to the scale of costs prescribed by law for the time being in respect of proceedings in the Supreme Court and in accordance with the provisions of s. 41(9) of the Land Act 1962.

(D.M. White)    
  President of the Land Court.