J and D Richards Developments Pty Ltd v Director-General, Department of Transport
[2000] QLC 44
•25 July 2000
LAND COURT
BRISBANE
25 July 2000
Re:Determination of compensation – resumption
for road purposes
Acquisition of Land Act 1967
Local Government: Caloundra City Council
(A99-32)
J and D Richards Developments Pty Ltd
v.
Director-General, Department of Transport
DECISION ON COSTS
On 30 May 2000, I handed down my judgment on the amount of compensation to be paid to the claimant pursuant to s. 20 of the Acquisition of Land Act 1967 (“the Act”).
I assessed compensation in the sum of $6,300 for disturbance and $40,000 as compensation for the land taken. This made the total amount of compensation $46,300. I also ordered that interest be paid at 7.5 per cent. from 8 July 1994 up to the day immediately preceding payment.
The claim for compensation was made on 11 May 1999. The amount claimed was $661,000 being $651,000 for the land and $10,000 for disturbance. The amount assessed for disturbance was the subject of agreement between the parties and the Court acted on that agreement.
The sum claimed was supported by the evidence of Mr Byrne. His evidence was that the impact on the land of the acquisition was $640,500, only a small shortfall of the amount originally claimed
The respondent seeks an order for its costs. The claimant submits that there should be no order as to costs.
The power as to costs is bestowed by s. 27 of the Act which provides, relevantly, as follows:
“Costs
27.(1) 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.
(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.”
The section provides a curiously confined discretion as to costs. The discretion whether or not to award costs is, subject to the duty to act judicially, quite broad. This is stressed by ss. 27(1) and retained by the use of “if any” on two occasions in ss. 27(2). However, if costs are to be awarded, the beneficiary of any such award is ascertainable by applying the formula contained in subsection 27(2). The history of the provision and the construction of the terms used therein have been helpfully elucidated by the Court of Appeal.[1]
[1] See Commissioner for Railways v Buckler (1996) 1 QdR 18.
As the parties have acknowledged by the form of their submissions, the application of s. 27(2) is clear. The amount of the assessment of the compensation was precisely the same as “the amount of the valuation finally put in evidence by the [respondent]”. In contrast, at best for the claimant, the amount of compensation as determined exceeded its claim by $600,500 (using the agreed sum for disturbance and the figure for the loss of land in Mr Byrne’s evidence rather than the figures in the original claim).
Mr Haydon, on behalf of the claimant, made submissions that the claimant had acted reasonably. He suggested that the claim was not exorbitant chiefly because it was supported by expert evidence. He supported the submission of reasonableness also by referring to the claimant’s acceptance of the respondent’s valuation were it to be held that the loss of direct access to Caloundra Road was not to be considered as part of the claim for compensation.
Mr Haydon also relied, in his submissions, on what he suggested was an unclear picture, from the claimant’s point of view, of the relationship between the refusal of direct access to Caloundra Road and the acquisition of land.
In this case, there were a number of issues in dispute. The two principal issues were whether the refusal of direct access to Caloundra Road should be considered, for compensation purposes, as part of the acquisition process and, assuming an affirmative answer to the first question, what the impact of that refusal was on the value of the claimant’s land which remained.
Both of these issues were decided against the claimant.
I do not think that the fact that an unsuccessful claim is supported by expert evidence is an important factor in deciding not to award costs. (The contrary, a claim unsupported by expert evidence, may well be influential in deciding to award costs against a party.) Such a position might lead parties to make exorbitant claims knowing they were protected from adverse costs orders as long as some expert, no matter how unsatisfactory or unconvincing, could be found to give evidence in support of such a claim.
I also do not place much weight on the fact that some issues which might have been disputed were the subject of agreement. One generally finds that it is the issues in dispute which principally generate the costs of a hearing and are, therefore, ultimately the subject of the exercise of the discretion as to costs.
I place some weight on Mr Haydon’s submission that the relationship between the refusal of access and the resumption was not always crystal clear. The very Notice of Intention to Resume may have contributed to this lack of clarity.[2]
[2] See Exhibit 1in the proceedings and paras 4 and 10 of the Reasons for Judgment.
I have come to the conclusion that I should award costs to the respondent. The factors that have principally influenced my decision in this regard are set out in the following paragraphs.
The amount of compensation assessed was precisely in accordance with the position taken by the respondent and significantly less than that claimed and contended for by the claimant. I took the view that the evidence of the valuer for the respondent, Mr Carrick, was in one respect, if anything, generous to the claimant.[3]
[3] See paragraph 84 of the Reasons for Judgment.
As mentioned previously, the two principal issues were decided in favour of the position of the respondent and against that contended for by the claimant.
While there was some lack of clarity as to the relationship between the resumption and the refusal of access to Caloundra Road, the claimant had the means to access relevant documentation and form its own views. One might, for example, take a more favourable view of a party who had taken a position in ignorance of certain facts or documents but sought to rectify that upon being apprised of crucial information.
The fact that both issues were decided against the claimant has the effect that the determination of compensation would have been the same even if the claimant had been vindicated in its position on the relationship between the resumption and the refusal of direct access. Thus, any lack of clarity was, at the end of the day, not determinative of the amount of compensation awarded.
The evidence of Mr Richards that direct access to Caloundra Road was crucial to the claimant’s development plans was rejected by me in the light of other evidence.[4] While I concluded that this evidence was marginally rather than crucially relevant and I made no finding that Mr Richards had been deliberately inaccurate, I consider that this is conduct of the case that is relevant to the discretion as to costs.[5] The claimant has been found to be inaccurate in its presentation of a part of the facts which was, through its officers, within its own knowledge.
[4] See paragraphs 68 – 78 of the Reasons for Judgment.
[5] See, respectively, paragraphs 68 and 78 of the Reasons for Judgment.
Order
Accordingly, I order that the claimant pay the respondent the costs of and incidental to the hearing and determination of the claim for compensation. The amount of such costs shall be ascertained and fixed by the Registrar of the Supreme Court, pursuant to section 41(9) of the Land Act 1962.
SJ KEIM
MEMBER OF THE LAND COURT
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