Hibiscus Holdings Pty Ltd v Director-General, Department of Transport

[1993] QLC 32

[1993] QLC 32

 

Hibiscus Holdings Pty Ltd

v

Director-General, Department of Transport

C O S T S

The power of the Land Court to grant costs originates in section 41(9) of the Land Act 1962. That power is discretionary and is in no way circumscribed. In respect of appeals determined pursuant to the provisions of the Acquisition of Land Act 1967, however, a restriction is placed on the Court's discretionary power.

Section 27(2) of the Act 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."

In this case the claimant sought, on its primary claim, an award of $500,000 or, in the alternative, the amount of $314,000. The respondent contended that no compensation should be paid because of the enhancement to the remaining land as a consequence of work done on the resumed land or the purpose for which the resumed land was taken.

The amount of compensation has been assessed at $201,000.

There is an issue as to whether an order for costs should be made and, if so, to whom.

I understand that the same issue is the subject of an appeal to the Land Appeal Court in Queensland Railways v P and PD Buckler (AV91-69 and 70). That case is listed for hearing tomorrow.

2

One or other party in these proceedings could be disadvantaged if I consider or determine a question of costs at this time without the benefit of argument and the decision of the Land Appeal Court.

I therefore make the following orders and directions:

1. I direct that, as soon as practicable after the decision of the Land Appeal Court in Queensland Railways v P and PD Buckler (AV91-69 and 70) is delivered, the Registrar of the Land Court is to send by certified mail a copy of that decision to the solicitors for the claimant and to the solicitors for respondent.

1. I grant the solicitors for the claimant liberty, within 28 days from the date of the Registrar's letter enclosing the Land Appeal Court's decision in which to make to the Registrar, if so instructed, written application for costs together with submissions as to why an order for costs should be made.

1. I direct the Registrar, upon receipt of any such application, to forward a copy of the application to the solicitors for the respondent who are hereby given 21 days from the date of the Registrar's letter in which to lodge a reply in the office of the Land Court.

1. The respondent is given liberty to apply to this Court, within 7 days from the date of the Registrar's letter enclosing the Land Appeal Court's decision, for a variation of paragraphs 2 and 3 of these orders and directions. I direct that, as soon as practicable after any such application is made to this Court, the Registrar is to advise the solicitors for the claimant of that application.

My consideration of the merits of any application for costs will be based on the written submissions.

Member of the Land Court.