Cairns Coconut Caravan Village Pty Ltd v The Commissioner of Main Roads

[1989] QLC 5

[1989] QLC 5

 

 

LAND COURT,

BRISBANE

15th June, 1989

Re:   Claim for Compensation.
  A88-70.

Cairns Coconut Caravan Village Pty. Ltd.
  v.
  The Commissioner of Main Roads

DECISION ON APPLICATION FOR COSTS

In a judgment handed down on 28th April, 1989, I granted to the respondent in this matter, the Commissioner of Main Roads, leave to make application for an order for costs if he so desired.
           Written application for such an order for costs, together with submissions why the order should be made, was lodged in the Court on 12th May, 1989.
           On 13th June, 1989, the solicitors for the claimant company made submissions in writing why the Court should exercise its discretion and decline to make any order for costs.
The power of the Court to award costs in a claim for compensation is contained in Section 27 of the Acquisition of Land Act 1967-1986. Subject to the restrictions contained in Section 27(2) of such Act, costs are in the discretion of the Court.
           In this matter the amount finally claimed was in the sum of $93,292; the offer in the sum of $31,160; and the amount finally awarded was the sum of $41,100.
           The solicitor for the respondent submits that an order for costs in favour of the respondent should be made because of the wide discrepancy between the award and the claim.  He says that the claimant was seeking compensation at a rate of $28 per square metre while the offer was at the rate of $9 per square metre.  I determined compensation at a rate of $12 per square metre which was substantially closer to the amount contended for by the respondent.  It is submitted that there was such a disparity between the figures that it precluded the possibility of any meaningful negotiation.  It is submitted that the Court found that the valuer for the claimant had failed to take into consideration a relevant matter of goodwill in analysing sales of improved caravan parks.
           The solicitors for the claimant submit that the award is substantially in excess of the figure which was contended for by the respondent as adequate compensation and the claimant was compelled to seek the assistance of the Court in determining the appropriate amount of compensation.  It is submitted that the claimant has not acted capriciously.  It has approached the Court relying on the evidence of an experienced valuer.  They acknowledge that the Court held that the valuer erred in not including a component of goodwill in analysing certain sales of caravan parks.  It is also submitted that the Court did not accept the valuation evidence of the valuer for the respondent and in the circumstances the Court should exercise its discretion and make no order as to costs.
           The question of the exercise of the Court's discretion in compensation claims was considered by the Land Appeal Court in Appeals against failure of Land Court to award costs - G. Moyse and F.M. Morris and Others v. The Council of the City of Townsville (1979) 6 Q.L.C.R. 271.
           In this case I have heard evidence from two most experienced valuers who have a wealth of knowledge of the market in Cairns and its surrounds but in the final result I found that the sales which have been their principal basis of valuation did not assist me.  I said "I am left in this case in a most difficult position as I do not find a great deal of assistance from some of the sales as I have already indicated".  Doing the best I could with the evidence I relied heavily on another sale of land at Kewarra which was introduced by Mr Goodman-Jones but was not used by him when he first reached a conclusion on the appropriate value for the subject land. 
           On the evidence before me it would appear to be quite clear that there was no possibility of the parties reaching a settlement in this matter because of the different approach made by the valuers.  My conclusion was reached by using a sale which had not been used by either valuer.  The award is substantially more than the amount contended for.  In the circumstances, I feel that this is an appropriate case where I should exercise my discretion and make no award as to costs.

Member of the Land Court