Davies v The Water Resources Commission
[1991] QLC 29
•30 August 1991
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BRISBANE.
30th August, 1991.
Re:Determination of Compensation -
Resumption for a purpose of the Water
Resources Act 1989 -
Viz Peter Faust Dam
A90-66
CR and WJ Davies
v.
The Water Resources Commission
APPLICATION FOR COSTS
DECISION
Consequent upon the handing down of the judgment in the above matter on 17th May, 1991 the respondent Water Resources Commission made an application for costs of the action. In view of the claimant's solicitors not being domiciled in Brisbane it was arranged that written submissions be made in relation to the application. These have now been received by the Court.
The facts in so far as they are relevant to the application are that the claimants originally filed a claim for compensation in the Land Court Registry in the sum of $65,500 made up as follows:-Value of Land Resumed $24,000
severance $32,500
Injurious affection $ 9,000
Total claim $65,500
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At the outset of the hearing of the matter leave was sought and was granted to amend the claim for compensation to $67,875 so as to accord with an assessment of compensation made by practicing registered valuer Malcolm Allan Bishopp. This assessment was for $55,000 for the value of land resumed and $12,875 as compensation for severance for the reinstatement of a water supply. The respondent Commission's assessment of compensation for the value of land resumed was $4,763. The award of compensation made by this Court under all heads of claim was the sum of $21,918, made up as follows:-
(a) Value of land resumed $ 4,763
(b) Severance $12,875
(c) Disturbance $ 4,280
Now Section 27 (2) of the Acquisition of Land Act 1967 - 1988 reads:-
"If the amount of compensation as determined is the amount finally claimed by the claimant in the proceedings or is nearer to that amount than to the amount of the valuation finally put in evidence by the constructing authority, costs, if any, shall be awarded to the claimant; otherwise costs, if any, shall be awarded to the constructing authority."
Now it is clear that if an award of costs is made in the matter then it can only be in favour of the respondent Water Resources Commission.
It is argued by the claimants that there should be no order as to costs. It is pointed out that it was a difficult case which is exemplified by the claimants not relying upon a valuation of the resumed land by Bevan Conroy since it was regarded as a highly optimistic valuation. It was then decided that Mr Bishopp's services would be engaged. It is further contended that if the Commission had made available the evidence of a Mr Leach who was called in the case then it would have been quite likely that the claimants' claim would have been reduced. In any event it is pointed out that the amount of compensation awarded still remains at a significantly greater sum than that contended for by the Commission.
The Crown Solicitor submits that the Court rejected Mr Bishopp's assessment of valuation and adopted the valuation of the land resumed as made by the constructing authority's valuer in the sum of $4,763. The Court then added the sum of $12,875 for deprivation of access to water in the Proserpine River. The Commission contends that the award for compensation, being in line with the valuation of the land submitted by the constructing authority, then costs should follow the event and be awarded to it.
Notwithstanding the submission made by the Crown Solicitor that the inclusion of this sum of $12,875 for the installation of a watering point should not deter the Court from awarding costs to the constructing authority, I cannot see it as a proper exercise of my discretion in the matter if I should make an award for costs in its favour especially since the award of compensation is significantly higher than that assessed by him. In the circumstances and in the exercise of my discretion I make no order as to costs.
(C.H. Carter)
Member of the Land Court.
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