LGM Enterprises Pty Ltd v Brisbane City Council

[2009] QLC 32

LAND COURT OF QUEENSLAND

CITATION:

LGM Enterprises Pty Ltd v. Brisbane City Council [2009]   0032

PARTIES:

LGM Enterprises Pty Ltd (ACN 091 649 660)

(Applicant)

v.

Brisbane City Council

(Respondent)

FILE NO:

A2007/0820

DIVISION:

Land Court of Queensland

PROCEEDING:

Application

DELIVERED ON:

Ex Tempore 23 February 2009

DELIVERED AT:

Brisbane

HEARD AT:

Brisbane

MEMBER:

Mr RS Jones

ORDERS:

    i.      Leave is granted to the applicant to file and serve an amended claim for compensation;

   ii.      The application that the respondent be ordered to pay an advance against compensation to the applicant is dismissed;

3. The cost of the hearing of the application are reserved.

CATCHWORDS:

Acquisition of land act 1967 – Land Court Act 2000 – Leave to file amended claim for compensation – Advance against compensation – Does the Land Court have the jurisdiction to order a constructing authority to pay an advance against compensation

APPEARANCES:

Mr L McGinn, Company Director, for the Applicant
Mr G Evans, Solicitor, Brisbane City Council Legal Practice, for the Respondent.

IN THE LAND COURT OF QUEENSLAND

BEFORE MR RS JONES (Member)

BRISBANE, 23 FEBRUARY 2009

(Copyright in this transcript is vested in the Crown.  Copies thereof must
NOT be made or sold without the prior written authority of the Registrar
of the Land Court.)

A2007/0820

In the matter of the determination of compensation payable consequent upon the resumption by the Brisbane City Council, under the provisions of the Acquisition of Land Act 1967 for road purposes, as lessor of Tenancy 1 on Lot 1 on RP 117943, County of Stanley, Parish of Kedron.

LGM Enterprises Pty Ltd
v.
Brisbane City Council

Mr L McGinn appeared on behalf of the Claimant.
Mr G Evans of Brisbane City Legal Practice appeared on behalf of the
           Respondent.

-----------

MR JONES:  In respect of this application to the court, in the first matter raised by the application the court gives leave for the claimant to file and serve an amended claim for compensation.  In respect of the second part of the application where the applicant seeks in effect that I order the Brisbane City Council to make a payment by way of an advance the application is refused and I will give some short reasons for that, but reserve the right to tidy this ex tempore decision up and, if appropriate, add relevant authority.

Substantially the reasons are these: Mr McGinn in support of his application drew to my attention s.26(1) of the Acquisition of Land Act 1967 which relevantly provides, "The Land Court has jurisdiction to hear and determine all matters relating to compensation under this Act."  At first glance this section gives to the court wide powers.  The question, however, is whether or not the application raises a matter which could be fairly described as being a matter "relating to compensation under this Act".  It is of course well recognised that the words "relating to" should be construed widely.  Mr McGinn also referred me to Rule 27 of the Land Court Rules which specifically refers to the powers of the Judicial Registrar. I don't think it's necessary to consider any further those particular powers. Mr McGinn also drew my attention to s.23 of the Acquisition of Land Act and I'll come back to that section in a moment.

During the course of Mr McGinn's submissions I drew to his attention s.5 of the Land Court Act 2000 which relevantly provides in sub-s.(1), "The Land Court has the jurisdiction given to it under an Act"; sub-s.(2) "If jurisdiction for a proceedings is expressly conferred on the court under an Act, the jurisdiction is exclusive"; sub-s.(3) "Subsection (2) does not limit parts (3) and (4)"; sub-s.(4) "The jurisdiction of the Land Court can not be ousted only because a proceeding before it is about claims or interests of an equitable nature or involves making a decision about title to land."  Subsection (4) is of course not relevant here. 

Courts such as the Land Court are inferior courts in the sense that the source of their jurisdiction has to be founded under a particular Act. To some extent this is reinforced by what is said in s.5(1) of the Land Court Act 2000 that the Land Court has jurisdiction given to it under an Act. The question then is whether or not the power to make an order requiring the Brisbane City Council to pay in advance was within the jurisdiction given to the Land Court under an Act which then brings me to consider s.23 of the Acquisition of Land Act. Before I deal with s.23 it, of course, should be observed that sections such as s.5 of the Land Court Act 2000 should not be read down and is subject only to limitations that might expressly appear either in that Act or elsewhere and should be interpreted widely. In this context s.33 of the Land Court Act also gives to the court quite extensive powers to make declarations about a matter done, to be done or which should have been done under the Land Court Act or another Act giving jurisdiction to the Land Court.

Returning then to s.23 of the Acquisition of Land Act sub-s.(1) provides that a claimant may at any time after the date on which the claimant delivered to the constructing authority his or her claim for compensation in accordance with the requirements of s.19, apply to the constructing authority for an advance.  Subsection (1) of course requires the claimant to deliver to the constructing authority its claim for compensation before it can apply for the advance.  In these proceedings the applicant first seeks to have leave to file and serve an amended claim.  One might wonder whether or not the claimant fails at this hurdle in the sense that it would require the amended claim to be delivered to the constructing authority before the advance could be applied for.  I'm inclined to think that that might not necessarily be the case, and I intend to proceed on the basis that the amended claim is not required to be delivered before the rest of the section takes effect.  That is I am proceeding on the basis that the claimant could act on the existing claim for compensation which I understand has been with the council now for some time.

The difficulty, however, as I see it is that under sub-s.(4) of s.23 certain conditions are required to be met before the payment of an advance is required. Subsection (4) of s.23 provides, "subject to subsections (5) and (6), any amount payable to a claimant under this section which is not paid within 90 days after the claimant applied for the payment shall be recoverable by the claimant as a debt due and unpaid to the claimant by the constructing authority." The evidence of Mr Evans is that he conducted a search of the council's files and was not able to find any document which would satisfy the description of an application for a payment of an advance. In response to this Mr McGinn conceded that he had not made any formal application for an advance to the council but, whilst conceding this, went on to say that there ought to have been no doubt in the council's mind that he wanted and was seeking the payment of an advance. Mr McGinn also referred to the fact that he had some difficulties in his dealings with the council from time to time. Notwithstanding what Mr McGinn says about this, I accept Mr Evans' evidence and taken in the light of the concession made by Mr McGinn consider that there has not been an application of the type envisaged under s.23(4) of the Acquisition of Land Act. It follows from that that the 90 days time frame envisaged under sub-s.(4) of course has not been activated.

However, even if I were wrong about what I have just said, that is the claimant could be said to have made a valid application for the payment of an advance, I have reached the conclusion that this court would still not have the power to make the orders sought for at least two reasons. The first is perhaps more a matter of jurisdiction, the second perhaps more a matter of discretion. They are first that after the 90 day period prescribed in s.23(4) any advance is to be claimed as a debt due and unpaid to the claimant by the constructing authority. As was pointed out by His Honour Justice Ambrose in Kameruka Ridge Pty Ltd & Anor. v. State of Queensland, an unreported decision of the Supreme Court, No. 5700 of 1977, it is not clear how an amount may be recovered as a debt when it comprises a sum of money which has not been estimated, much less specified or quantified so as to become a liquidated sum. But even leaving those difficulties aside for the moment, it seems to me that the wording of sub-s.(4) is such as to not give this court the jurisdiction to make the orders sought. The amount of the advance may fall within the jurisdiction of other courts depending on the amount involved, that is depending on the amount of the "debt" involved it may fall within the jurisdiction of the Magistrates Court, District Court or the Supreme Court. The scheme of s.23 seems to be that on the following events occurring a right or cause of action vests with the claimant: (i) the delivery of a valid claim for compensation; (ii) a request or demand for an advance; (iii) a failure by the constructing authority to pay the advance by 90 days after the demand. The cause of action would be for the recovery of the advance as if it were a debt due and owing. In my opinion the Land Court does not have the jurisdiction to deal with actions in debt. Also, it does not strike me as sufficiently obvious, as Mr Evans submitted, that this court otherwise has the power to grant the relief sought.

I will then move to what might be described as a discretionary point. Even if it were open to make the orders sought there irs simply no way of quantifying what the amount of the advance should be. Subsection (3)(b) of s.23 of the Acquisition of Land Act says, "where the constructing authority has not made the offer", (which is the case here), "mentioned in paragraph (a) – an amount equal to its estimate of the amount of compensation payable to the claimant."  I have no estimate before me as to what, if any, amount of compensation the council considers it ought pay by way of an advance.  For the reasons set out above I dismiss the application seeking orders that the council make payment by way of an advance against compensation.

The costs of the hearing of this application are reserved.