Crelga Holdings Pty Ltd v The Commissioner for Railways

[1991] QLC 40

[1991] QLC 40

 

  LAND COURT

BRISBANE.

3rd December, 1991.

Re:     Applications for Costs (A90-15)
  Resumption for Railway Purposes -
  Beenleigh to Robina Railway Line.

Crelga Holdings Pty Ltd
  v.
  The Commissioner for Railways

D E C I S I O N

At the time judgment was handed down in this matter, applications were made for costs of and incidental to the hearing, by Counsel for both the respondent and the claimant.
           The amount finally claimed was in the sum of $360,000, and the valuation finally put in evidence by the respondent was "nil".  It was the claimant's submission however that the valuation finally put in evidence by the respondent was in fact an amount of minus $500,000.  This was based on the verbal evidence of the respondent's valuer that the claimant's land before resumption was valued in the sum of $600,000 and the balance area after resumption in the sum of $1,100,000.
Section 20(3) of the Acquisition of Land Act of 1967 (as amended) requires that:

"In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken.

But in no case shall this subsection operate so as to require any payment to be made by the claimant in consideration of such enhancement of value.           "

In this matter, the respondent's valuer concluded that enhancement of value outweighed the value of land taken and in terms of the legislation could find no result other than an assessment of "nil" compensation.
In terms of Section 27(1) of the Acquisition of Land Act the costs of and incidental to the hearing and determination by the Land Court shall be in the discretion of the Court, but then under Sub-section (2) limited to the party whose claim or valuation (as the case may be) is nearest to the determination. The determination here was in the sum of $74,965 and nearest to the respondent's "nil" valuation. Costs therefore may not be awarded to the claimant.
           The circumstances of the matter are such that I find it was necessary for the claim to be brought to the Court for determination, and this has resulted in an award of some significance having been obtained by the claimant.
           In exercising the Court's discretionary powers I have made the decision that each party should bear its own costs.  No order is therefore made as to costs.

(R.E. Wenck)       
  Member of the Land Court.