Department of Natural Resources and Mines v Body Corporate for "The Astor Terrace Car Park"

[2003] QLAC 67

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Department of Natural Resources and Mines v Body Corporate for "The Astor Terrace Car Park"  [2003] QLAC 0067

PARTIES:

Chief Executive, Department of Natural Resources and Mines
(applicant)

v.

Body Corporate for "The Astor Terrace Car Park" & Anor
(respondents)

FILE NO:

LAC2003/0003

DIVISION:

Land Appeal Court

PROCEEDING:

Costs of Appeal

ORIGINATING COURT:

Land Court of Queensland

DELIVERED ON:

8 October 2003

DELIVERED AT:

Brisbane

HEARD BY:

Written Submissions

JUDGE:
MEMBERS:

Justice Mullins
Mr RE Wenck, Mrs CAC MacDonald

ORDERS:

1.    The application for costs of the appeal be dismissed.

2.    There be no order as to costs in respect of that application.

CATCHWORDS:

Costs – Costs of appeal – Where Land Appeal Court dismissed appeal by valuing authority in respect of valuations – Where respondents to the appeal sought an order for costs on the basis that the appeal had no prospects of success – Whether the appeal was foredoomed to fail – General principles applicable to costs associated with appeals against valuations made for revenue purposes – Not a special case – No award of costs of the appeal

COUNSEL:

Mr J O'Rourke, Principal Legal Officer, for the appellant
Mr G Allan for the respondents

SOLICITORS:

Legal Services, Department of Natural Resources and Mines for the appellant
Russell Hanley & Johnson for the respondents

1. On 25 June 2003 the court dismissed an appeal by the Chief Executive, Department of Natural Resources and Mines ("the appellant") from the decision given on 28 November 2002 by the learned Member, Dr NG Divett, in respect of the unimproved values for rental purposes to enable the rent to be determined for the road licences over stratum at Portman Lane, Spring Hill granted to each of the Body Corporate for "The Astor Terrace Car Park" Community Titles Scheme and the Body Corporate for "The Astor Centre" Community Titles Scheme which were the respondents to the appeal ("the respondents"): Department of Natural Resources and Mines v Body Corporate for "The Astor Terrace Car Park" & Anor [2003] QLAC 46. It is not necessary to summarise the reasons for judgment for dismissing the appeal, as reference can easily be made to those reasons for judgment.

2. In accordance with directions given by the court in respect of dealing with the costs of the appeal, the respondents delivered written submissions to the court on 14 July 2003 seeking costs of the appeal.  Written submissions from the appellant were received by the court on 21 July 2003.  The parties were content for the court to decide the question of the costs of the appeal on the basis of the written submissions.

Legislation

1. Under s 34(1) of the Land Court Act 2000 (as it is applied to the Land Appeal Court by virtue of s 72 of the Land Court Act 2000), this court may order costs for a proceeding in the court as it considers appropriate, subject to the provisions of the Land Court Act 2000 or another Act to the contrary.

2. Under s 66 of the Valuation of Land Act 1944 (“VLA”) the court may, subject to s 70 of the VLA make such order as it deems fit with respect to the payment of costs. Section 70 of the VLA provides:

   "  (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."

Relevant Authorities

1. In Bowden v Valuer-General (1980) 7 QLCR 138 the Land Appeal Court dealt with general principles applicable to costs associated with appeals against valuations made for revenue purposes. The court stated at 146:

   "We think, in dealing with questions of costs, that it is an important consideration that there be ease of access to the Land Court and the Land Appeal Court."

   and also at 146:

   "It seems to us unjust to adopt a restrained attitude towards awarding costs against citizens without adopting an equally restrained attitude towards awarding costs against the Valuer-General."

   The court stated further at 147:

   "Easy access to the Land Court to air grievances and have valuations reviewed is, as we have already stressed, most desirable in revenue cases, and such access should be available without fear of costs being awarded to either party except in special cases."

2. In Bowden the land owner successfully appealed to the Land Appeal Court against the decision of the Land Court in the matter on appeal against the determination by the Valuer-General of the unimproved value of certain land.  That appeal involved an issue of whether or not the parcel fell to be valued under the special provisions of a particular provision of the VLA and there was also a dispute as to the quantum of value.  The land owner sought an order for costs incurred in the Land Court and the Land Appeal Court.  The court was satisfied that the Valuer-General did not arbitrarily or capriciously adopt the interpretation of the particular statutory provision upon which he based his valuation.  The court concluded that in all the circumstances there were no features of the case which warranted an award as to costs. 

3. In Valuer-General v Queensland Club (1991) 13 QLCR 207 the Valuer-General appealed against the determination of the Land Court which fixed the unimproved value of the owner’s land at less than that which had been valued by the Valuer-General. The appeal was unsuccessful. It was common ground that it was a test case concerning the effect on valuations of the heritage provisions of the town plan. There was no suggestion that the Valuer-General had acted arbitrarily or capriciously in interpreting the law forming the basis of his valuation. The matter turned on a question of law and the court presumed that its decision would be of benefit to the Valuer-General in performing his functions. The Land Court had refused to order costs in favour of the owner. The Land Appeal Court did not consider that there was any error in that exercise of discretion, but in the circumstances considered that the Valuer-General should pay the owner's costs of the appeal to the Land Appeal Court.

Submissions of the Respondents

1. In summary, the respondents submitted that s 70 of VLA did not preclude an order for costs against the appellant and, as the appeal had no prospects of success, there were special circumstances to justify the court departing from the general rule that costs would not be awarded by the court on a valuation appeal.  The respondents submitted that the appeal was "foredoomed to fail": Walton v Gardiner (1993) 177 CLR 378, 393.

Submissions of the Appellant

1. There was no issue that s 70 of the VLA did not preclude an order for costs against the appellant. The appellant relied on the success which the appellant had on the appeal to the extent that the court adopted different reasoning to the learned Member to conclude that s 23 of the VLA did apply to the valuations.  The appellant therefore submitted that the appeal was not one which should be characterised as a special case justifying an award of costs against the appellant.

Decision

1. Although the respondents identified that the appellant pursued 11 grounds of appeal, as the respondents also acknowledged, some of those grounds overlapped.  In addition, others were the subject of written submissions only and took up no time on the hearing of the appeal. 

2. Although the appellant was unsuccessful on the valuation aspects of the appeal, the appeal did raise an issue about when s 23 of the VLA can be invoked. The result on the appeal was no different from that reached by the learned Member, but it was significant that this court's reasoning for applying s 23 of the VLA was different to that of the learned Member.

3. This appeal was not a test case. 

4. The fact that an appeal is dismissed does not mean that it was "foredoomed to fail".

5. It is also relevant that the respondents have been awarded a significant part of their costs of the appeals in the Land Court which was the subject matter of the appeal to this court.

6. Having regard to the general principles discussed in Bowden, the appeal to this Court was not a special case and it is appropriate in all the circumstances that there be no order made in respect of the costs of the appeal.

7. The appellant also sought an order that the respondents pay the appellant's costs in connection with the submissions on costs.  The parties quite properly minimised the costs incurred on the application for costs of the appeal by agreeing to the matter being dealt with on the papers.  It is relevant that the costs were sought in respect of an appeal concerning valuations.  In the circumstances it is not appropriate to make an order against the respondents for having made an application for costs.

Orders

1. The orders which will be made are:

   1.The application for costs of the appeal be dismissed.

   2.There be no order as to costs in respect of that application.

MULLINS J

JUSTICE OF THE SUPREME COURT

RE WENCK

MEMBER OF THE LAND COURT

CAC MacDONALD

MEMBER OF THE LAND COURT