Collins Foods International (Properties) No 2 Pty Ltd v Chief Executive, Department of Natural Resources
[1996] QLC 152
•11 November 1996
|
LAND COURT
BRISBANE
11 November 1996
Collins Foods International (Properties) No 2 Pty Ltd
v.
Chief Executive, Department of Natural Resources
(AV93-319)
DECISION ON COSTS
The application
This is an application by the respondent Chief Executive for the respondent’s costs incurred in preparing to defend the appeal by Collins Foods International (Properties) No 2 Pty Ltd against the respondent’s decision on objection to an annual valuation of certain land in Strathpine. According to the respondent, the costs were thrown away by reason of the appellant’s late withdrawal of the appeal. The application was made pursuant to Rule 20(iv) of the Rules of the Land Court 1912.
The facts
On 25 June 1993, an appeal was lodged by hand in the registry of the Land Court in respect of the valuation by the respondent of Lot 4 on RP 171863 in the Parish of Warner as at 31 March 1992. The appeal was one of 28 lodged on that date by Raine and Horne Valuations (Qld) Pty Ltd (“Raine and Horne”).
Three years later the appeal had not been listed for hearing.
On 22 July 1996, the matter was mentioned at a callover before a member of this Court, who listed the matter to be heard on 10 September 1996. Written notices of the hearing on that date were sent to the parties by a Deputy Registrar of the Court. The notices were dated 23 July 1996.
In a letter to the Registrar of the Court dated 19 August 1996, the Director of Legal Services of the Department of Natural Resources (the “Department”) advised that a search of the Certificate of Title indicated that the appellant was not the registered proprietor of the subject land at the date on which the appeal was lodged. Consequently, he stated, “there would appear to be a question of jurisdiction to be determined when the matter is called for hearing by the Court.”
A copy of that letter was sent to Raine and Horne.
A letter from Raine and Horne, dated Monday, 9 September 1996, was lodged by hand in the registry of the Land Court on that date. The letter recited the name and number of the appeal and stated: “We wish to withdraw the above matter set down for hearing in the Land Court.”
A copy notice of withdrawal was served on the respondent by facsimile transmission on 9 September.
By letter dated 10 September 1996, the date for hearing the matter, a Deputy Registrar of the Court wrote to Raine and Horne acknowledging the letter of 9 September and advising that the matter had been struck from the list of cases awaiting hearing and determination by the Land Court.
In support of the application for costs, the respondent relied on the affidavit of the respondent’s valuer, Andrew Dale Grams, dated 7 October 1996. That affidavit was sent to the Registrar of the Land Court, under cover of a letter from the Director of Legal Services (Exhibit 4).In summary, the affidavit states as follows:
Mr Grams is a valuer in the Department and made the valuation of the subject land as at 31 March 1992.
Various approaches were made to Raine and Horne in an endeavour to ascertain whether the appellant intended to prosecute the appeal. Those approaches took the form of telephone phone calls on 26, 27 and 30 August 1996 and 5 September 1996. It seems that Mr Grams was unable to speak to a person involved in the matter until the afternoon of 5 September 1996, when Mr Brett Schultz advised Mr Grams verbally that he (Mr Schultz) was going to recommend that the matter be withdrawn. Mr Schultz said that the respondent’s officers would be notified of the decision by the afternoon of Thursday 5 September or on the morning of Friday 6 September. The facsimile transmission message of the withdrawal of the matter was received by officers at 11.06 am on Monday 9 September 1996.
In the absence of any response from the valuer for the appellant before 9 September 1996, Mr Grams undertook the preparation of the respondent’s report and valuation for the hearing of the appeal.
The amount of costs being sought by the respondent is $1,579.07. An itemised record of costs is Annexure C to Mr Gram’s affidavit.
Evidence about the order of events was given by Mr Alan John Crawford, a valuer and land economist who is a director of Raine and Horne. It seems that he was responsible for the conduct of the appeal on behalf of the appellant. Mr Crawford did not take issue with most of the chronology of events set out in Mr Gram’s affidavit. In summary, his evidence was as follows.Although the Court notice of the hearing of the matter on 10 September 1996 was received in the offices of Raine and Horne on 24 July 1996, it was caught up with other documents and Mr Crawford was not aware that it had been received.
On 15 August 1996 Mr Crawford entered hospital for surgery. During his period in hospital and at home convalescing, Mr Crawford delegated the handling of the matter to Mr Schultz. The brief given by Mr Crawford to Mr Schultz was “inadequate”, in the sense that there was a lack of instructions.
Mr Crawford was at home convalescing on the dates in August when Mr Grams rang Raine and Horne. Mr Crawford “did not take immediate action being unaware of the urgency at that time”.
On or about 5 September 1996, Mr Schultz contacted Mr Crawford (apparently as a result of Mr Gram’s telephone call on that day) and Mr Crawford first became aware of the imminent hearing.
Mr Crawford’s written statement continued:
“ 6. Due to my circumstances at the time (including being unable to drive) and the inadequate time frame from Friday 6th to Tuesday 10th I decided that it would be preferable to withdraw the appeal rather than (in my opinion) insult the court by being inadequately prepared. Therefore on behalf of the client through Brett Schultz the Appeal was withdrawn verbally on 5th September 1996 and confirmed in writing on 9th September 1996.”
There is some inconsistency in the accounts of the parties about when the respondent was notified about the withdrawal of the appeal. Mr Crawford’s evidence was that “on behalf of the client through Brett Schultz the Appeal was withdrawn verbally on 5th September 1996 and confirmed in writing on 9th September 1996” (Exhibit 5). Mr Grams’ affidavit stated that, on 5 September Mr Schultz “advised me verbally that he was going to recommend that the matter be withdrawn. I stressed that ... he should notify us promptly of a decision in writing ... He advised that we would be notified by that afternoon (Thursday) or the next morning (Friday 6th).” Mr Grams was not called to be cross-examined and at the hearing Mr Crawford only took issue with the quantum of costs being sought. Mr Crawford was not cross-examined. Although it is not necessary to resolve the issue, I find Mr Grams’ account more persuasive. In any case, the respondent was entitled to clear and formal notice that the matter was withdrawn. That notice was not given until the morning before the case was due to be heard.
In his oral evidence, Mr Crawford added that it would also have been an insult to the Department to present an inadequate case at a hearing. He thought that it may have been too late to seek an adjournment and, had he done so, the application may have been resisted by the respondent.
Finally, Mr Crawford said that the tardy response by Raine & Horne was due to his absence. “The problem arose due to our inaction rather than any matter in the control of Collins Foods.”
There was no suggestion in Mr Crawford’s evidence that the decision to withdraw was influenced by the respondent’s notice that an issue of jurisdiction would be raised at the hearing.
There were a number of surprising, even disturbing, aspects of the case put by Mr Crawford. First, it seems that the organisation of the office was inadequate in the circumstances surrounding the preparation of the appellant’s case for trial. Second, when the significance of the pending hearing was recognised by Mr Crawford, he did not seek an adjournment. Rather, anticipating opposition from the respondent to any application for an adjournment, he decided to withdraw the appeal. That was a tactical decision based on what was the perceived, but apparently untested, assumption about the respondent’s attitude. There was no direct evidence about whether that decision as taken on instructions. Nor is there any way of knowing what the Court would have done if an application for an adjournment had been made. It could, for example, have refused the application, or it could have granted the adjournment with an order that the appellant pay the respondent’s costs of the adjournment or it could have granted the adjournment with no order for costs.
The Law
The power of the Land Court to order costs is found in section 41(9) of the Land Act 1962 (preserved by section 521 of the Land Act 1994). The subsection states:
“Powers of Court...
(9) The Court may make such order as it thinks fit as to the costs of or incidental to any matter that it has jurisdiction to hear and determine including, without limiting the generality of this subsection, the costs of an adjournment or application made in a pending matter, allowances to witnesses attending for the purpose of giving evidence at the hearing and the costs of any surveys of boundaries.”
The case raises three issues, namely:
(a)whether the Court has jurisdiction to order costs in a case such as this;
(b) if the Court has jurisdiction, the factors to be considered by the Court in deciding whether to make the order sought; and
(c) if an order is to be made, what amount should be ordered.
The parties referred to some authorities, namely the decisions of the Land Appeal Court in WH Bowden v The Valuer-General (1980) 7 QLCR 138 and Beedell Farms and Grazing Pty Ltd v The Valuer-General (1979) 6 QLCR 322, and the decisions of the Land Court in CJ Weld v Gold Coast City Council (1979) 6 QLCR 8, Determination of Rent, Special Lease No 38516 (1982) 9 QLCR 1, Lindeman Island Ltd v The Valuer-General (1989) 12 QLCR 275, Flagstone Creek Pty Ltd v Chief Executive, Department of Lands (V95-72, unreported decision, 20 July 1995) and Ditchlyn Pty Ltd and Others v Chief Executive, Department of Lands (AV94-382/383, AV94-384, AV94-385, unreported decision, 29 September 1995).
Jurisdiction: The first question is whether the Land Court has jurisdiction to deal with an application for costs in these circumstances. The question arises because the Court made no order in respect of the appeal. The case did not get to the Court. It was withdrawn. Usually, the question of costs of appeals against valuations under the Valuation of Land Act 1944 is determined by reference to section 70 of that Act, which provides:
“Costs of appeal against valuation
70.(1) Where the value of land as finally determined upon an appeal against the valuation is the value stated by the owner in the owner’s notice of appeal against the valuation, or is nearer to that value than to the valuation appealed against, costs shall not be awarded against the owner.
(2) Otherwise costs shall not be awarded against the chief executive.”
Because the value of the subject land was not “finally determined upon an appeal”, section 70 of the Valuation of Land Act 1944 does not apply in this case. If the Court has power to make an order for costs, the source of the power can only be in section 41(9) of the Land Act 1962.
Mr Paterson argued that the Court has jurisdiction to hear the application for costs and power to make the order sought. Mr Crawford did not dispute that submission and proceeded on the basis that the Court could make the order.
The only authority cited in relation to this issue was the decision of the Land Court in Lindeman Island Ltd v The Valuer-General. That case concerned an application for costs by an appellant whose appeal was not determined by the Court because, before the date for hearing, the Valuer-General amended the valuation to the figure contended for by the owner in the notice of appeal. Section 21A of the Valuation of Land Act 1944 (now section 68) provided that, where the Valuer-General altered the valuation in accordance with the notice of appeal and gave notice to the appellant and to the Court not less than 14 days before the commencement of the sittings, “the appeal shall be determined”. The Court considered the wording of sections 21, 21A and 22 of the Valuation of Land Act 1944 and section 41(9) of the Land Act 1962 and concluded that:
(a) the power of the Land Court to award costs is contained in section 41(9) of the Land Act 1962;
(b) the Land Court has no power, under section 41(9) of the Land Act 1962, to award costs unless the jurisdiction to hear and determine a matter exists;
(c) section 22 of the Valuation of Land Act 1944 gives the Court power to award costs in matters finally heard and determined by the Court;
(d) once the Valuer-General exercised his powers under section 21A of that Act and amended the valuation contended for by the appellant the matter was determined;
(e) consequently, the Court had no jurisdiction to hear and determine the appeal and no power to award costs in the matter (at 277).
Apart from one reservation, which I will state shortly, it is not necessary for me to express a view about the correctness of that decision because it is, as Mr Paterson submitted, distinguishable from the present case. Unlike the Lindeman Island case, there was no determination of the appeal in the present case either by the Court or the respondent. Consequently, the successors to sections 22 and 21A have no relevance to these proceedings.
The only reservation about the conclusion in the Lindeman Island case which I would express in these reasons is the statement that section 22 gives the Court power to award costs in matters finally heard and determined by the Court. Section 22 did not confer power. Rather, as the Court correctly stated earlier in that judgment, section 22 placed a restriction upon the Court’s discretionary power on costs (at 277). The source of that power is section 41(9) of the Land Act 1962 and it is the interpretation of that sub-section which will resolve the issue in the present case.
The Court is given broad discretionary power to make an order “as to the costs of and incidental to any matter that it has jurisdiction to hear and determine”. In trying to ascertain the scope of the Court’s power it is instructive to consider the legislative history of section 41(9).
Section 32(6) of the Land Act of 1910 provided, in part:“The Court may make such order as it thinks fit as to the costs of any proceeding heard and determined by it, including allowances to witnesses attending for the purpose of giving evidence at the hearing and the cost of any survey of boundaries.” (emphasis added)
The same words were used in section 41(9) of the Land Act 1962 as first enacted in 1962.
Section 41 was amended by the Land Act and Another Act Amendment Act 1981. Subsection (9) was omitted and a new subsection (9) was inserted. That subsection remains unchanged. As noted earlier, the first sentence empowers the Court to make such order as it thinks fit as to the costs “of or incidental to any matter that it has jurisdiction to hear and determine”. A comparison of the provisions gives an indication of the much broader scope of the current subsection (9). That impression is confirmed by an entry in the “Record of the Legislative Acts passed by the Forty-third Parliament of Queensland during its First Session 1981-1982”. The commentary on the 1981 Act states:
“Section 9 amends section 41 of the Principal act to clarify and extend the powers of the Land Court with respect to the award of costs.” (at p 262)
For present purposes, it is clear that the Court’s power to award costs is no longer confined to those proceedings which are heard and determined by the Court. Does the power extend to actions which are formally initiated but are terminated before a hearing has commenced? In such instances, is there a “matter” that the Court has jurisdiction to hear and determine?
The legislative history points to a wider meaning of “matter” than “proceeding”. The word “matter” in this context refers to the subject in issue or dispute between parties. (In a similar vein, a “matter” within the meaning of section 76 of the Australian Constitution means “a justiciable controversy”: Minister for Home & Territories v Smith (1924) 35 CLR 120 at 126 per Isaacs ACJ and Starke J citing South Australia v Victoria (1911) 12 CLR 667). So, for example, where a land owner has objected to the respondent’s valuation of the owner’s land and the land owner is dissatisfied with the respondent’s decision on objection, the subject of the dispute is the “matter” which the Court “has jurisdiction to hear and determine”. Support for that interpretation can be found elsewhere in sections 37 and 40 to 43 of the Land Act 1962. The Court’s general jurisdiction is to hear and determine “all matters which by this Act or any other Act are required to be heard and determined by the Court”, and other matters may be referred to the Court (s 37). One member of the Court shall constitute the Court for the purpose of the exercise of its jurisdiction in respect of certain specified “matters” (s 40). There are references to “any inquiry or appeal held or made to the Court, or any other matter within its jurisdiction under this or any other Act” (s 41(1)), “a matter arising under this Act” (s 41A(1)), “a reference of the matter to the Court” (s 41A(1)(a)), the “hearing of a matter” (s 41A(1)(b), also s 41B(7), s 41B(9)), “a party in a matter pending before the Court” (s 41B (1)), also s 41B(6)), and a “rehearing of the matter” (s 43). By comparison, as a general rule, “every proceeding shall be heard and determined ... in open court” (s 41(8), also s 41B(9)), and it is an offence to wilfully interrupt “the proceedings of the Court” (s 42)
Read literally and in isolation, the first sentence of section 41(9) might suggest that the Court could make an order for costs where there is a matter that it has jurisdiction to hear but where its jurisdiction has not been invoked. Such a reading is not supported by the context of the Act. Rather, the provision indicates that the Court may make orders once its jurisdiction has been invoked, including in cases where the question of whether the Court has jurisdiction is a preliminary issue. The Court’s jurisdiction can only be attracted in accordance with specific statutory procedures. In my opinion, once the jurisdiction has been invoked, and action has been taken by a party or parties in relation to the hearing and determination of the matter by the Court, the Court may order costs of or incidental to the matter.
The breadth of the power is not to be read down by reference to the examples of the exercise of the power set out in section 41(9). In my opinion there is no such limitation. First, the examples are expressly included “without limiting the generality of this subsection”. Second, the examples have no common element and so the ejusdem generis principle has no application. Third, as the Court may order costs for the adjournment of a matter which may later be withdrawn, it is not unreasonable to be able to order costs with respect to the withdrawn matter. Fourth, as the Land Appeal Court observed, the power conferred by section 41(9) is “discretionary and is in no way circumscribed” (WH Bowden v The Valuer-General (1980) 7 QLCR 138 at 145).
As far as I am aware, there has never been any suggestion that the Court lacks jurisdiction to determine whether it has jurisdiction to hear and determine a particular matter. The Court frequently makes such determinations and, on occasions, makes orders for costs in respect of the jurisdictional matter (see, for example Flagstone Creek Pty Ltd v Chief Executive, Department of Lands). Other superior courts have held that they have power to order costs in respect of such matters (see, for example, the discussion of the Federal Court’s jurisdiction in Obacelo Pty Ltd v Taveraft Pty Ltd (1985) 5 FCR 210 at 218 per Wilcox J, and the power of the Supreme Court of Victoria in Re Crittendon; Ex parte Law Institute of Victoria [1958] VR 101, Full Court). The respondent had given notice that there would be a question of jurisdiction to be determined when the matter was called for hearing. It is not possible to say what the Court would have decided had the jurisdictional matter been argued. Whether it had jurisdiction to hear the appeal or only to determine the jurisdictional issue there was, at the time of the notice of withdrawal, a “matter” that the Court had jurisdiction to hear and determine.
In my opinion, the Land Court has power to make the order sought in these proceedings.
Factors to be considered in the exercise of the Court’s discretion:
Given that the Court has power to make an order as to costs, the next question is whether an order is appropriate in this case.
The starting point in answering that question must be section 41(5) of the Land Act 1962 which provides:“(5) Court to be guided by equity and good conscience.
Notwithstanding anything in this Act or in any other Act, or in any rule, process or practice of law -
(a) the Court in the exercise of any jurisdiction, duty, power or function, conferred or imposed upon it, shall be governed in its procedure and in its decisions by equity, good conscience, and the substantial merits of the case, without regard to technicalities or legal forms or the practice of the other courts;...”
Although the Land Court’s discretion is unfettered, it must be exercised judicially, that is, by reference to relevant considerations (for example see Townsville City Council v Moyses and Morris (1979) 6 QLCR 271 at 273-4, WH Bowden v The Valuer-General at 144-7). It is apparent that the attitude which the Court should take in the exercise of its discretion is primarily one of restraint which, speaking broadly, may be exercised against a party if the Court is satisfied that the party acted arbitrarily or capriciously, or in a frivolous or vexatious manner.
In dealing with applications for costs made under section 70 of the Valuation of land Act 1944 (previously numbered section 22), the Land Court and Land Appeal Court have generally adopted a restrained attitude, emphasising the desirability of easy access to the Land Court to air grievances and have valuations reviewed. Such access “should be available without fear of costs being awarded to either party except in special cases” (see Bowden’s case at 147).
This is not to say that the Court will not, in a proper case, make an award of costs, but there would need to be sufficient reason for such an award. In exercising its discretion, the Court necessarily takes into account all of the circumstances then appearing. Such cases include cases where a party may justifiably seek costs through lateness of notice, or where the Court is satisfied that proceedings are of a frivolous or vexatious nature or perhaps where a hearing is adjourned due to the wrongful conduct of a party (see Bowden’s case at page 146 and The Valuer-General ats Queensland Club (1990-91) 13 QLCR 207 at 222-4 (Land Appeal Court) and cases cited therein).
The respondent relied primarily on the decision of a former President of this Court, Mr White, in Ditchlyn Pty Ltd and others v Chief Executive, Department of Lands. Notice of withdrawal was given to the respondent in those proceedings on the afternoon of the day before the date set for hearing. The appellants were ordered to pay some of the respondent’s costs. Having quoted from the judgment of the Land Appeal Court in Bowden’s case, the learned former President referred to the “more relevant authority” of the Land Appeal Court in Beedell Farms and Grazing Pty Ltd v The Valuer-General ((1979) 6 QLCR 322), in which the Court made an order for costs in favour of the appellant in respect of a hearing involving a preliminary point of jurisdiction raised by the Valuer-General a few days only before the matter should have gone to trial on its merits. In the Ditchlyn case, there was no dispute that costs were thrown away through late notice of withdrawal or that the respondent was entitled to costs which properly can be said to have been thrown away.
In my opinion, this is an appropriate case in which to make an order for costs. In reaching that conclusion, I have been influenced by the conduct of the appellant’s valuers. Although not convinced that Raine and Horne acted arbitrarily or capriciously or in a frivolous or vexatious manner, I am satisfied that the circumstances surrounding the withdrawal of the appeal are such that an order is warranted. Mr Crawford candidly acknowledged that the decision to withdraw the appeal, and the timing of the withdrawal, were matters for which the valuers were primarily (if not solely) responsible. It was their administrative inefficiency which resulted in the appellant’s case not being ready for hearing and which led to the making of a late decision to withdraw the appeal. This was not a case where an ill informed litigant in person got “cold feet” just before a hearing, or where a litigant took an informed decision based on prospects of success of a properly prepared case.
The amount to be ordered: The final issue is the amount of costs which should be ordered. Again it is relevant to make the decision in light of section 41(5) of the Land Act 1962, particularly the direction that the Court shall be governed in its decisions by equity, good conscience, and the substantial merits of the case, without regard to the practice of other courts.
As noted earlier, the Land Court may make an order as to “costs of and incidental to” the matter. The expression “costs of and incidental to” court proceedings is fairly common in sections conferring power on courts to make orders for costs. When considering s 50(1) of the (UK) Supreme Court of Judicature (Consolidation) Act 1925, Jupp J stated:
“I take it that a thing is incidental if it ‘occurs in subordinate conjunction with something else’ (Oxford English Dictionary)” (Department of Health and Social Security v Envoy Farmers Ltd [1976] 2 All ER 173 at 175).
In Re Fahy’s Will Trusts Plowman J had to construe an order involving “costs of and incidental to the negotiations”. His Honour stated:
“Strangely enough, there is no authority, so I am told, as to the meaning of the words ‘and incidental to’ and what they add to the words ‘costs of’ in an order for costs. In my judgment the words ‘and incidental to’ as used in ... ‘costs of and incidental to the negotiations’ mean ‘costs of and consequent on the negotiations’, and costs incurred before negotiations commenced cannot be said to be costs incidental to the negotiations.” ([1962] 1 All ER 73 at 75.)
Annexure C to Mr Grams’ affidavit itemises the costs incurred in preparing the respondent’s case.
Preparation Time : Research - 1 day - 7.25 hrs
Writing up - 1 day - 7.25 hrs
Typing - 1 day - 7.25 hrs
Inspection - 1 day - 7.25 hrs
Briefing Counsel - 4 hours (includes travel time)
Total 33 hours @ $22.89/hr $ 755.37
Vehicle usage : 220 km @ 55 cents/km $ 121.00
Cartographer : (photo imageing) 1 day - 7.25 hrs @ $22.31/hr $ 161.75
A4 enhanced Blinmaps : 25 @ $10.50 $ 262.50
Copies of Registered Plans : 15 @ $10.00 $ 150.00
Certified Copies of Titles : Current - $10.00 + $20.00 (certification)
Historical - $15.00 + $20.00 $ 65.00
Photographs : 1/2 Film $2.50
Developing & Processing $4.95 $ 7.45
Photocopying : 28 pages @ $2.00/page $ 56.00
Total $1579.07
Again, the Land Court decision most directly in point in this case is Ditchlyn Pty Ltd and others v Chief Executive, Department of Lands. The main issue in those cases was the amount of costs which should be ordered. The respondent claimed $2,864.56, of which $1,957.93 was attributed to the time spent in preparation by the valuer and the remainder was calculated by reference to costs of a cartographer, typist, Blinmaps A4, IVAS sales and property printout, ATS title search, copies of RP, photographs and photocopying. Having noted the duty cast on the chief executive by s 13 of the Valuation of Land Act 1944 to decide the unimproved value of the land to be valued for the Acts under which local authorities are established, the learned former President wrote:
“In the light of the duties cast upon the Chief Executive under s. 13 of the Act it may be assumed that all the research, inspection and enquiry stated above would have been carried out in making the valuations which issued and that possibly more detailed research, etc., may have been effected for the purpose of the objection conference. Neither party has any statutory right to costs of or leading up to those proceedings. Following an appeal it may be assumed that the valuer in preparing his report and valuation for the Court would take from this material so much as is considered reasonable and relevant in defending the appeals and that is all which, in my opinion, the respondent can be expected to recoup when an appellant gives late notice of withdrawal.”
Reviewing the calculations submitted by the chief executive, the former President determined the amount of costs to be paid to be in the sum of $631.25.
The approach adopted then is, with respect, apposite to this case.
Mr Crawford took issue with some of the amounts listed by Mr Grams. He argued that the preparation of the respondent’s case should not have taken more than one day. Because valuation is a statutory requirement, work done in preparation of the original valuation could not be taken into account as part of the preparation of the case. Nor should it have been necessary to replicate the work. Any relevant information should have been on the Department’s files. As it happens, Mr Grams was the valuer who prepared the 1992 valuation and he should have been able to refresh his memory from the file.
Mr Crawford also submitted that:(a)some costs (such as travel to the subject land and making copies of maps) were relevant to the original valuation rather than preparation for the hearing of the appeal;
(b) some other costs (particularly typing, Blinmaps, photocopying) were excessive;
(c)travel time for briefing counsel should not be charged, and travel expenses should not be allowed because a valuer stationed closer to the subject land than Mr Grams (in Caboolture) should have been engaged in the task;
(d)a cartographer need not have been engaged in this work or, if the work was appropriate, a full day was not required.
The main thrust of his submission was that any fees should be reasonable. The costs incurred in this case, he submitted, far exceed the real costs that should have applied. Mr Crawford tendered a “Scale of Fees and Charges” (the 1992 Scale) published by the Australian Institute of Valuers and Land Economists Incorporated Queensland Division (Exhibit 6). There is authority for the proposition that a scale of charges compiled and recommended by a reputable professional body should, by virtue of the fact that it is so compiled and recommended, be regarded as reasonable (CJ Weld v Gold Coast City Council (1979) 6 QLCR 8, at 10, following Queensland Forests Limited (in liquidation) [1966] Qd R 180). I note, however, that the document is expressed to be effective as a 1 January 1992 (relevant to the date of valuation but not necessarily relevant to the preparation of the respondent’s case for an appeal to be heard late in 1996) and that it is clearly marked in various places “Guide Only”.
In reply, Mr Paterson argued that the itemised costs had actually been incurred and were reasonable. He observed that the matter had taken a long time to get to Court and the valuer had to refresh his memory. It was necessary to make copies of maps for the Court and parties to the proceedings.
Given the limited nature of the evidence about some items in respect of which costs are sought, and the dates by which the costs were incurred, any assessment of the amount to be ordered must be somewhat artificial. The line of decisions on awards of costs generally suggests that a conservative approach is appropriate. Accepting the thrust of Mr Crawford’s criticisms of some items, but acknowledging that four years after the date of valuation it was appropriate for the valuer to refresh his memory about the subject land and other comparable properties, it is appropriate to allow:
2 days for researching, writing up, typing,
inspection and briefing counsel: say $332
vehicle usage: say $ 60
cartographer for 5 hours: say $123
Blinmaps @ $10 each: $250
Copies of plans and titles: $215
Photographs: $ 7.45
Photocopying (colour and plain): say $ 10
Total $997.45 (adopt $1,000)
The 1992 Scale can provide a useful check of this result. The valuation in issue was $247,500. In the notice of appeal the appellant nominated the amount of $200,000. The 1992 Scale lists the standard fees and charges for valuation based on the capital value of non-residential land in the $200,000 to $248,000 range to be $600 to $1,044. The 1992 Scale also states:
“Except where otherwise stated, the fees and charges set out are exclusive of travelling time, transportation expenses, accommodation, costs of plans, copies of documents or lithography, zoning certificates, title and sales searches, other approved professional and like disbursements, all of which may be charged in addition to the valuation fee.”
In transportation expenses, 75 cents per kilometres was allowed for car expenses for distances exceeding 20 kilometre radius from the valuer’s headquarters.
By that standard, the amount to be awarded in costs is relatively conservative. As noted earlier, however, the respondent is not entitled to costs incurred in the 1992 valuation of the subject land. Accordingly, it is not appropriate to make a direct comparison between the Scale figure for costs of a valuation and the “costs of and incidental to” this matter.
Before making the formal order I note that Mr Crawford informed the Court that, if costs are ordered in this case, Raine and Horne, and not the appellant, would bear those costs. He had advised the appellant that it has “no concern to cover these costs”.
Order
The appellant is to pay the respondent’s costs in the sum of one thousand dollars ($1,000.00).
GJ Neate
Member of the Land Court
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