Desbois v Chief Executive, Department of Transport and Main Roads (No 2)

[2022] QLC 1

LAND COURT OF QUEENSLAND

CITATION:

Desbois v Chief Executive, Department of Transport and Main Roads (No 2) [2022] QLC 1

PARTIES:

Clive John Desbois
(applicant)

v

Chief Executive, Department of Transport and Main Roads
(respondent)

FILE NO:

AQL696-19

PROCEEDING:

Application for costs

DELIVERED ON:

2 February 2022

DELIVERED AT:

Brisbane

HEARD ON:

28 January 2022

HEARD AT:

Brisbane

PRESIDENT:

FY Kingham

ORDER:

1.     The Court declares that the Respondent is eligible to apply for an order for costs of the proceeding.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - s 28 Acquisition of Land Act 1967 – identification of “the amount of compensation as determined” – whether an amount allowed for interest should be included

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - s 27 Acquisition of Land Act 1967 – identification of “the amount finally claimed by the claimant” – where the amount claimed in final submissions differed from the original (amended) claim

Acquisition of Land Act 1967 s 20, s 24, s 27, s 28

Land Court Act 2000 s 34

Vass and Lambert v Coordinator-General (No. 2) (2015) 36 QLCR 21; [2015] QLAC 2, applied
Hill v Director-General, Department of Transport [1993] QLC 45, followed

APPEARANCES:

EJ Morzone QC, with DC Whitehouse (instructed by Kelly Legal) for the applicant
R Anderson QC (instructed by Clayton Utz) for the respondent

[1]      On 16 December 2021, I determined the compensation payable to Mr Desbois by the Department of Transport and Main Roads (‘DTMR’) for land compulsorily acquired for the Mackay Ring Road Project.

[2] The parties seek a ruling on which one of them is entitled to seek an order for costs. The question arises because of the costs regime that applies pursuant to s 27 of the Acquisition of Land Act 1967 (‘ALA’), which is contrary to, and therefore prevails over, the Court’s power to award costs under s 34 of the Land Court Act 2000.

[3] Section 27 of the ALA requires the Court to undertake a two-stage process: identifying which party is eligible to apply for a costs order; and then, in exercising its discretion, determining whether costs should be awarded in the circumstances of this case.

[4]      Both parties claim they are eligible to apply for a costs order.

[5] The question of eligibility is addressed by s 27(2), which provides:

(2) 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. (emphasis added)

[6]      Eligibility to apply for costs is determined by deciding which party’s position is closer to the compensation determined by the Court.

[7]      Senior counsel for Mr Desbois accepts that he is only eligible to seek an order if the Court accepts both of the following propositions: that the amount of compensation determined by the Court is $948.961, and that the amount finally claimed by the claimant is $1,615,800.

[8]      Unless the Court finds that both propositions are made out, the amount of compensation determined by the Court is nearer to the amount of the valuation finally put in evidence by the DTMR, making it the party entitled to seek costs.

[9]      The Court does not find in favour of Mr Desbois on either proposition. Accordingly, DTMR is the party entitled to seek an order for costs.

The amount of compensation as determined

[10] Mr Desbois says the amount of compensation as determined, for the purpose of s 27(2), is $948,961. That is the sum of $781,385 for loss in land value, $83,576.08 being interest on that loss, and $84,000 for disturbance.

[11]      The amount of compensation as determined includes the amount allowed for disturbance. This Court is bound by a decision of the Land Appeal Court to that effect.[1] That interpretation is also consistent with s 20(1)(b) of the ALA which identifies costs attributable to disturbance as a head of compensation.

[1]Vass and Lambert v Coordinator-General (No. 2) [2015] QLAC 2, [45].

[12]      As for interest, DTMR contests Mr Desbois’ assertion that the amount of compensation as determined includes the sum of $83,576.08, which I allowed for interest on the loss in land value. DTMR says that interest is not a head of compensation, is at the discretion of the Court and is additional to, not part of, the amount of compensation as determined.

[13] The power to award interest is provided by s 28(1) of the ALA which allows the Court “to order that interest be paid upon ‘the amount of compensation determined by it.’” That suggests that interest is something different, and in addition, to the amount of compensation determined by the Court.

[14] Further, DTMR relies on s 28(1B) which provides:

(1B) Interest so ordered to be paid shall be payable as if it were part of the compensation in question and shall be added to the amount thereof and be payable by the constructing authority accordingly. (emphasis added)

[15]      In Hill v The Director General, Department of Transport, the learned former President of this Court, Mr Trickett, reasoned that the words “as if it were part of the compensation”:

“indicate that it is something different to the award of compensation and only for the purpose of payment is it deemed to be part of that compensation.”[2]

[2]Hill v Director-General, Department of Transport [1993] QLC 45, 3-4.

[16] On that basis, he interpreted the words “the amount of compensation as determined” in s 27(2) to exclude an amount allowed for interest in that case.

[17] I respectfully agree with and adopt his Honour’s interpretation, which accords with the plain meaning of the words of s 28(1B).

[18] For the purpose of applying s 27(2), the amount of compensation determined in this case is $865,385.

The amount finally claimed by the claimant

[19]      Mr Desbois says the amount he finally claimed is $1,615,800. That is the sum of $1,531,800 for loss in land value and the agreed disturbance of $84,000.

[20]      The figure of $1,531,800 is the amount arrived at by discounting by 10% the amount of $1,702,000 claimed by Mr Desbois for loss in land value in Annexure A to his Originating Application.

[21]      In closing written submissions, senior counsel for Mr Desbois submitted that a discount of no more than 10% to 20% might be deducted from the value of land to account for the risk of widening the bridge:

“In the applicant’s submission, having regard to all of the evidence, that the Court would find that the risk was “very low” (if not “infinitesimal”) and not discount the applied rate of $750,000 or $75 sqm by more than about 10 or 20%.”

[22]      Mr Desbois argues the Court should apply the 10% discount, being least favourable to him in determining his eligibility for costs.

[23]      DTMR raises a number of objections to that interpretation.

[24]      First, the amount claimed in Annexure A is $1,702,000. It was common ground that, although the Court granted Mr Desbois leave to file an Amended Annexure A during the hearing, that document did not change the amount claimed for loss in land value.

[25]      In Vass and Lambert, the Land Appeal Court construed the words “finally claimed” in s 27(2) as referring to the final amount for which the Court’s leave to amend was given.[3] In reaching that conclusion, the Land Appeal Court noted the mandatory language of s 24(3) of the ALA, which prevents a claimant from amending the claim as filed, without leave.

[3]Vass and Lambert v Coordinator-General (No. 2) [2015] QLAC 2, [37].

[26]      Mr Desbois did not seek and was not granted leave to reduce his claim to an amount calculated in accordance with [67] of his final submissions.

[27]      In any case, as senior counsel for DTMR submitted, even if the final submissions could be looked to in determining the amount finally claimed, at [67] counsel identified an approach the Court might take if it found the land value should be discounted. He submitted for a range of 10% to 20%. However, in the concluding paragraph of his final submissions he repeated his claim for $1,702.000 for loss in land value.

[28] I find [67] of the final submissions was not effective in reducing the amount claimed for loss in land value. It follows that, for the purpose of applying s 27(2), the amount finally claimed by Mr Desbois is $1,786,000, the sum of $1,702,000 for loss in land value and disturbance of $84,000.

Conclusion

[29]      DTMR submitted Mr Desbois’ final claim was $1,786,000 and the amount of the valuation it put in evidence was $151,000 ($67,000 in land value + agreed disturbance of $84,000). On that basis, the midpoint between the two is $968,500. The amount of compensation of $865,385 is a little more than $100,000 less than the midpoint between the two positions, and closer to DTMR’s than Mr Desbois’.

Order

1.     The Court declares that the Respondent is eligible to apply for an order for costs of the proceeding.