Brown v Council of the Town of Goondiwindi

[1997] QLC 4

[1997] QLC 4

 

LAND COURT

BRISBANE

31 JANUARY 1997

Re:   A96-34 -
                 Application for Costs -
                 Determination of Compensation for Resumption of Land
Acquisition of Land Act 1967

BETWEEN:

Desmond Charles Brown and Lorraine Susan Brown
  Claimants
  AND

Council of the Town of Goondiwindi
  Respondent

D E C I S I O N

Subsequent to delivery of judgment in the matter of the determination of compensation, the respondent Council made application to the Court for award of its costs, submitting that the value of the land contended by the respondent “was a more reasonable figure in all of the circumstances than that contended by the claimants”.
     The final valuation put in evidence before the Court by the respondent/applicant was in the amount of $50,000 for the land taken.  The amount finally claimed by the claimants was $75,000 for the land, together with disturbance items (the amounts of which were agreed), stamp duty and legal expenses and indemnity against Capital Gains Tax.
Section 27 of the Acquisition of Land Act 1967 provides as follows:

“Costs.     (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.

...”

This application is capable of determination without reference to other than the compensation awarded for the loss of land which was in the amount of $55,000, being closer to the respondent’s valuation than the amount claimed. While costs are in the discretion of the Court, that discretion may be exercised in this matter only in favour of the respondent/applicant in terms of ss.2 of s.27.
     Having been invited to respond to the application, the claimants submitted that the respondent Council should bear its own costs.  They point to the fact that they were not legally represented at the hearing.  This was in an effort to contain the significant expenditure primarily on professional advices, directly resulting from the resumption of the land and then only to the date of the hearing, with further expense then involved in the Capital Gains Tax issue.  Apart from the frustration they have experienced in having had the land taken in the first place then not receiving the extent of compensation to which they  believed they were entitled, they expressed concern that they have not been fully informed by the respondent as to matters which may affect their personal position. 
     The respondent’s reply was that all reasonable steps had been taken to settle the matter without the need for the Court hearing and that an offer, the equivalent of the Court’s determination, had been rejected during the negotiation process.  As a consequence, the Council had incurred significant expense in having the matter dealt with by the Court.
     Other than limiting the Court in the manner in which its discretion may be exercised, the proximity of the award to one or other of the claim or the constructing authority’s valuation, is but one of the matters for the Court to consider.  In Moyses and Ors v. Townsville City Council (1979) 6 QLCR 271 at 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 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 has made one, has been such as to force the authority, unreasonably and unnecessarily, into litigation.”

In Banno v. Commonwealth of Australia (1993) 81 LGERA 34 Wilcox J said at p.53:

“The acquisition left the applicants in the position of either accepting the Commonwealth’s assessment of the proper compensation or of having the Court rule on its adequacy.  Perhaps people in that position should be allowed access to the Court, to present an arguable and well organised case, without being deterred by the prospect of being ordered to pay the Commonwealth’s costs if their case proves unpersuasive.  I distinguish the situation of resumees who pursue a vexatious, dishonest or grossly exaggerated claim or present their case in such a way as to impose unnecessary burdens on the Commonwealth or the Court.”

It was the claimant’s choice not to be legally represented at the hearing.  It could not be said that the presentation of their case, due to their inexperience, did not cause difficulties to all concerned.  That is not to say however, that their case was not arguable.  It was based on professional  advice as to the value of the land taken and compensation awarded under that heading was higher than the respondent’s valuation.  It is clear that the compensation as determined was capable of being achieved through negotiation and that process would have saved the respondent the costs of and incidental to the hearing.
     However, although their claim was largely unsuccessful, and their valuer’s assessment found to be “significantly too high” the claim would not be seen, in the particular circumstances, to be “grossly” exaggerated.  Nor would the claim be seen to be vexatious or dishonest. 
     Instead, it seems to me, that regardless of the claimants’ views as to the end result, this was a matter where the interests of all parties were best served by having the question of compensation determined by the Court.  Certain principles relative to the “scheme of resumption” needed to be considered. 
     It is seen as appropriate in this matter that the parties bear their own costs.  In the exercise of the Court’s discretionary powers, no order is made as to costs.

RE WENCK
  MEMBER OF THE LAND COURT