Girgenti v Commissioner of Main Roads

[1992] QLC 41

[1992] QLC 41

 

  LAND COURT

BRISBANE

23rd October, 1992

Re:     Claim for Compensation (A91-97)

Rosa Girgenti, Denise Anne Girgenti and Maria Teresa Girgenti
  v.
  The Commissioner of Main Roads

DECISION ON APPLICATION FOR COSTS

On 28th August, 1992, I delivered my judgment in this matter, and determined the amount of compensation payable by the respondent to the claimants at $2,850.  Subsequently on 3rd September, 1992, the respondent sought and was granted leave for the parties to place written submissions before the Court in regard to costs.  The parties have now placed their written submissions before the Court.
The Land Court's power to award costs are contained in s. 27(1) of the Acquisition of Land Act 1967 which provides as follows:

"Subject to this section the costs of and incidental to the hearing and determination by the Land Court of a claim for compensation under this Act shall be in the discretion of that court.  "

However, this discretion is not unfettered as ss. (2) provides that

"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.  "

The use of the word "finally" in ss. (2) refers to the fact that the Land Court has jurisdiction to allow a claim to be amended under s. 24(3).
           In this matter the claimants lodged a claim for compensation dated 12th January, 1990, in the sum of $120,000.  During the course of the hearing this claim was amended to $90,000 plus an agreed amount for disturbance of $2,850.
           The respondent's assessment of compensation was nil, as the respondent contended that the balance land retained by the claimants was enhanced in value as a result of the resumption.
           I agreed with the contention of the respondent that the balance land was enhanced in value as a result of the resumption and found that the value before resumption was $200,000 and that the value after the resumption was also $200,000.  In other words, although the claimants lost an area of 1,160 square metres, the reduced area of the land was worth more per square metre because of the enhancement as a result of the resumption.
           In Moyse and Others v. The Council of the City of Townsville (1979) 6 Q.L.C.R. 271, the Land Appeal Court dealt with the exercise of the discretion of the Land Court as to the award of costs. In that case the Land Appeal Court was considering an appeal against the failure of the Land Court to award costs. At page 273, the Court said -

"The general rule, then, is that costs are in the discretion of the Court, but of course the discretion must be exercised judicially, that is, by reference to relevant considerations. Subject to that, the only restriction on the manner of exercise of the Land Court's discretion is that contained in ss. (2) of s. 27; and this Court should interfere with the exercise of the discretion only if there has been some disregard of principle of misapprehension of fact: Estate of Shaw v. The Crown (1974) 1 Q.L.C.R. 147. "

Again at page 274, the Court said -

"The public interest, it would seem to us, is amply protected by the scheme of the legislation as a whole, by the fact that the discretion as to costs is one which is to be exercised judicially and by the restriction on the exercise of that discretion which is imposed by ss. (2) of s. 27....However, there are two observations which we feel at liberty to make.  First, we do not think that the presence of ss.(2) of s.27 in the Act should be regarded as some sort of legislative suggestion that where the claim is substantially more than the amount awarded, and the amount put in evidence by the authority is not substantially less than the amount awarded, the Court should not merely refrain from awarding any costs to the claimant, but should award costs to the authority.  Second, where the Court is considering whether it should award costs to an authority, it could be wrong to have regard merely to the amounts of the claim and of the award and of the value put in evidence by the authority.  We would think that usually it would be more relevant to enquire whether the conduct of the claimant, including his making of an exorbitant claim, if he has made one, has been such as to force the authority unreasonably and unnecessarily into litigation.  "

That case, like the present one, involved the concept of enhancement to the balance land as a result of the resumption, and this was a factor that the Land Appeal Court felt should be taken into account, as "it was at all times a live issue, with the result by no means a foregone conclusion".
           With regard to enhancement the Land Appeal Court said at page 278 -

"The burden of proving enhancement was on the authority.  There have been a number of similar cases in the Land Court in which no order as to costs has been made.  We are not to be taken as indicating that, in any case in which enhancement is in issue, a claimant is entitled to take the matter to Court without incurring any risks as to the costs of the authority.  But we do say that there are cases in which the Court can properly take the view that it was reasonable to have the matter decided by the Court and that, notwithstanding the failure of the claim, there should not be any order as to costs.  We think that the learned Member was entitled to regard this as such a case.  "

In the subject case the award of the Court was for the amount of disturbance of $2,850.  The respondent's submission in relation to costs is that the respondent was placed in the position of having the matter determined by the Land Court as at all times it had contended that a nil compensation was payable because the balance land was enhanced.  The award of the Court therefore is much closer to the respondent's figure than to that of the claimants'.  Therefore, if costs are awarded they must be awarded to the respondent.
           The claimants' case, however, is on the basis that enhancement was "at all times a live issue".  The differences in the valuation on behalf of the claimants and those on behalf of the respondent were associated with the subdivisional potential of the land and the costs of exploiting that potential.  There was agreement by the valuers that there was potential in the subject lands, the real issue was at what stage this could be realised.  The claimants submit that this is not a case where their valuation has been without substance or has been unmeritoriously extravagant, and that this was a case that could only be determined by the Court.
           I agree with the submissions by the claimants.  This was not a case where the respondent was forced unnecessarily to the Court.  Indeed, the claimants have submitted that the reports of three of the respondent's witnesses, which ultimately tipped the balance in favour of the respondent, were not available to the claimants before the hearing.
           In cases such as this it is difficult for the claimants to understand how they can have part of their land taken for public purposes and yet be offered no compensation by the constructing authority.  It is therefore not surprising that they sought to have the matter determined by the Court.
I have carefully considered the submissions of the parties and have come to the conclusion that this is a case where the parties should bear their own costs. Therefore, in accordance with the discretion which is vested in this Court by s. 27 of the Acquisition of Land Act, I make no order as to costs.

Member of the Land Court