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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Bamchin Holdings Pty Ltd v The Director-General, Department of Transport [1993] QLC 30
Case: [1993] QLC 30
Decision Date: 22 October 1993

CaseChat Overview and Summary

In this case, Bamchin Holdings Pty Ltd (the claimant) sought compensation for the resumption of certain lands by the Director-General, Department of Transport (the respondent). The compensation was determined to be $81,500, which included $80,000 for the land and $1,500 for valuation fees. The respondent then applied for costs, arguing that the claimant had unreasonably and unnecessarily forced the matter into litigation by initially claiming an excessive amount and not amending their claim until the day of the hearing.

The legal issue before the court was whether the respondent was entitled to costs under section 27 of the Acquisition of Land Act 1967. The court considered the authority of Moyses and Ors v. Townsville City Council, which suggested that costs should not be awarded merely based on the difference between the claim and the award but rather on whether the claimant's conduct forced the authority into litigation. The court also considered the claimant's argument that each party should bear its own costs since the result turned on an interpretation of town planning documents that were not exchanged until the morning of the hearing.

The court found that the respondent was entitled to costs as the claimant's conduct had forced the respondent into litigation. The court ordered that the claimant pay the respondent's costs of and incidental to the hearing and determination of the claim, to 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.

Orders