Kennedy v Council of the Shire of Redland

[1997] QLC 24

[1997] QLC 24

 

  LAND COURT

BRISBANE

21 February 1997

Re:     Determination of Compensation -
  Resumption for Drainage Purposes -
  A94-91.

Kevern John and Robyn Kay Kennedy
  v.
  Council of the Shire of Redland

APPLICATION FOR COSTS

Consequent upon the handing down of the judgment in the above matter, counsel for the claimants sought an award as to costs of the hearing and determination of compensation.
           The respondent Council of the Shire of Redland, through its solicitors, opposed the application and originally also claimed costs of the action.  I say, "originally", as the application was later modified to the extent that counsel urged the Court, in the exercise of its discretion, to make no order as to costs.
The jurisdiction of this Court where the matter of costs is involved lies in section 27 of the Acquisition of Land Act 1967. The section reads:

"(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 history of the matter, insofar as it appears relevant to a decision with respect to costs, is that the claimants originally served a claim for compensation upon the respondent for the resumption of an easement in the sum of $6,950.  At the outset of the hearing of the matter in the Land Court, the claimants sought and obtained leave to amend the claim for compensation for the resumption of the easement to $2,000 which accords with a revised valuation put in evidence by the claimants' valuer and which was made available to the respondent a few days prior to the hearing.  At all times, the respondent Council claimed that no compensation was payable since Council maintained that the carrying out of the works on the resumed easement resulted in enhancement in the value of the claimants' adjacent unencumbered land.
           For the reasons set out in my written judgment, compensation for the resumption of the easement was determined in the sum of $1,000.
           Now it is clear that the onus in compensation assessment cases to prove enhancement lies with the respondent Council and, for the reasons embodied within the judgment, that onus was not discharged.
           The judgment of the Land Appeal Court and that of the Court of Appeal in Re:  Commissioner for Railways v. P and PD Buckler where the appeal was against the judgment of the Land Court which awarded costs to the Bucklers is helpful.  In the Land Court case, a claim by the Commissioner that no compensation should be paid to the claimants because of enhancement was also not adopted by the Court and as a result determination of compensation for the resumption was made.  The Land Appeal Court dismissed an appeal by the Commissioner against costs awarded against him by the Land Court, and in so doing made the following interesting observation:

"In our view, section 27(2) of the Act contemplates a 'valuation' finally put in evidence by the 'constructing authority' which specifies an amount. If the constructing authority fails to put in a valuation specifying an amount, then section 27(2) of the Act could have no application with respect to making an order for costs of the prosecution of a claim for compensation. "

The Commissioner for Railways appealed the judgment of the Land Appeal Court to the Court of Appeal where the judgment of the Land Appeal Court was overturned, (1996) 1 Q.R. Vol 1 at p.18), and it was in effect held that the valuation could only sensibly mean the constructing authority's "valuation" of the compensation to which, in its view, the claimant is entitled, and that in the circumstances of that case, the valuation was NIL.
           It follows in the instant case that, although no quantitative valuation was placed in evidence by the respondent Council, because of the claim regarding enhancement, "the amount of the valuation finally put in evidence by the constructing authority" is also NIL.
It follows that I am not bound in considering these cost applications by the provisions of section 27(2) of the Acquisition of Land Act since my determination of compensation ($1,000) is not nearer the amount finally claimed by the claimant in the proceedings ($2,000) nor is it nearer to the amount of valuation finally put in evidence by the constructing authority (NIL).
In the exercise of my discretion in accordance with the provisions of section 27(1) of the Acquisition of Land Act, and especially since the respondent Council had not discharged the onus upon it to prove enhancement, I find this to be a case where the costs of the action be awarded to the claimants.
           Accordingly, it is ORDERED that the respondent Council of the Shire of Redland pay the claimants costs of and incidental to the action.  Such costs are to be ascertained and fixed by the Taxing Officer of the Supreme Court in Brisbane according to the scale of costs prescribed by law for the time being in respect of the proceedings in the Supreme Court and in accordance with the provisions of section 41(9) of the Land Act 1962.

(CH Carter)         
  Member of the Land Court