Cunnington v Council of the Shire of Woongarra

[1991] QLC 38

[1991] QLC 38

 

  LAND COURT

BRISBANE.

3rd December, 1991.

Re:     Application for Costs. (A91-40)
  Resumption for Sewerage Purposes.

R.H. Hutchins and D.T. Cunnington
  v.
  Council of the Shire of Woongarra

At the time that judgment was handed down in the above matter, applications were made for costs of and incidental to the hearing by both the respondent and the claimant in the Land Court hearing.
           The amount finally claimed was in the sum of $132,320, comprising $130,000 for land, the balance being for legal and valuation fees.  The valuation finally put in evidence by the respondent was $47,320 being $45,000 for the land, the legal and valuation fees as claimed being accepted.
In terms of Section 27(1) of the Acquisition of Land Act of 1967 (as amended) the costs of and incidential to the hearing and determination by the Land Court shall be in the discretion of the Court, then under s.s.(2) limited to the party whose claim or valuation is nearest to the determination.
           The determination in this matter was $55,000 for the land together with the fees as agreed, and this is nearer to the respondent's valuation.  Costs therefore may not be awarded to the claimant.
           It is the respondent's submission that the length of the hearing (two full days in Bundaberg with addresses in Brisbane) and its intensity was caused by the significant difference of opinion expressed in the valuations.  The claimants say that the respondent increased the final valuation for the purpose of the hearing and had negated any real opportunity of settling the matter at or around the formal offer through their actions in having prior to resumption proceedings made a much higher offer for the land.
           The facts are that while a higher initial offer had been made, that was rejected and the claim, based on the claimants' valuation advice, was in a much higher amount again.  It is accepted that the initial offer may have engendered false expectations, warranting the prosecution of a claim, but the quantum of the claim then had an effect on the costs of and incidential to the determination.
           In exercising the Court's discretionary powers, I find that costs should be awarded to the respondent, although I will limit the amount of those costs.
           Accordingly I order that the claimants pay the respondent's costs limited to and fixed in the amount of $2,000.

Member of the Land Court.