Bunney v the State of South Australia (No 2) No. Scgrg-99-209

[2000] SASC 202

BUNNEY v THE STATE OF SOUTH AUSTRALIA (NO 2)
[2000] SASC 202

Land and Valuation Division

1................ DEBELLE J.  (ex tempore)        The applicant seeks the costs of these proceedings.

1. The material before me shows that the applicant has sought very substantial sums in settlement of his claim for compensation. The Minister, for his part, at one stage offered $50000. That offer was rejected. All offers were withdrawn on 1 February 1999. As at 1 February 1999, three valuations had been exchanged between the parties. There was Mr Morgan’s valuation, which is dealt with by judgment and upon which Mr Bunney proceeded with his claim. He valued the land at $31800. There was a valuation of Mr Chaney, also produced on behalf of the applicant, which valued the land at $31000. There was a valuation of Mr Firth for the Minister, which proceeded on two bases. On one footing, the land was valued, with the Minister relinquishing the right of way, in the sum of $14000. The other valuation, on the footing that the right of way was not relinquished, valued the land at $2000.

2. Another issue between the parties was whether the Minister had been negligent in constructing the encroachment. The Minister was denying negligence as at 1 February 1999.

3. The decisions to which I have referred in my reasons for judgment illustrate that the award of costs in relation to actions under the Encroachments Act 1944 are very much in the discretion of the court as, indeed, is any order for costs. Regard will be had to the conduct of the parties both prior to the litigation and in the conduct of the litigation. The fact that regard will be had to the conduct of the litigation by the respective parties is also emphasized in the Land and Valuation Division Rules.

4. In the end result, the applicant has received a nominal amount by way of compensation. The litigation did establish that the Minister had acted negligently and that the applicant was entitled to three times whatever might be the value of the land. The applicant has also been successful in obtaining a relinquishment of the right of way. That was offered by the Minister at the commencement of the hearing. It also formed part of the statement of issues filed by the Minister. Actions under the Encroachments Act can only be brought in this Court. There is no other court which has jurisdiction.

5. On one view of the matter, the applicant should receive little, if any, costs. He has sought to maintain what was a very substantial claim in relation to a relatively small parcel of land subject to a right of way where the only beneficiary of the right of way was the Minister who had encroached on the land. As I have said in my reasons, that claim smacked of opportunism. Had the claim not been for such a substantial sum, there might have been greater prospects of success. It is true that on the eve of the trial the applicant reduced the amount he sought to recover by quite a substantial sum. He then sought $20000 compensation. The offer was rejected. No counter-offer was made.

6. All that stood by way of a counter-offer was a letter from the Crown Solicitor to the effect that the Minister would consider any offers which might be made. It is readily apparent that the Minister had knowingly encroached upon this land. Viewed in its most favourable light, the encroachment was negligent. It was open to conclude that it was deliberate. Nevertheless, the fact that it was negligent was sufficient to attract three times compensation for the land.

7. The applicant has had to prosecute these proceedings in order to recover what little it is that he has recovered. The withdrawal by the Minister of any offers must, I think, lead to the fact that some order as to costs should be made in favour of the applicant. The applicant is by no means entitled to full costs. That is by reason of the fact that he has always sought a substantial sum by way of compensation and has been awarded only a nominal sum.

8. In my view, the applicant is entitled to recover only a relatively small proportion of his costs. It is difficult to determine with any precision what is a fair allocation of costs as between the parties, given that the encroachment was constructed by the Minister with full knowledge of the facts, that the applicant has had to bring these proceedings to recover any compensation, and that the amounts claimed by the applicant were so high in relation to the true value of the land.

9. I think that a fair broad-axe approach is to allow the applicant to recover one-fifth of his costs as taxed. The order in relation to costs will be, therefore, that the applicant recover one-fifth of his costs.