Logan City Council v Quigley - [2011] QLC 34

LAND COURT OF QUEENSLAND

CITATION: Logan City Council v Quigley [2011] QLC 0034

PARTIES:Logan City Council
(Applicant)

v.

Russell Irvine Quigley

(Respondent)

FILE NO:AQL331-10
DIVISION:General Division
PROCEEDING: Reference to the Land Court by a constructing authority for hearing and determination of the amount of compensation pursuant to s.24 of the Acquisition of Land Act 1967
DELIVERED ON:                  2 June 2011
DELIVERED AT:                   Brisbane
HEARD ON:  5 May 2011
HEARD AT:Brisbane
MEMBER:His Honour WA Isdale

ORDER/S:1. Compensation is determined to be payable by the Applicant to the Respondent in the sum of Ninety Thousand Dollars ($90,000) in respect of the resumption of Lot 173 on RP126561, area 819m² being the whole of the land in Title Reference 14547204, Parish of Yeerongpilly.
2.Interest is payable at the rate adopted for the relevant year in the table of interest rates published by the Land Court (the applicable rate).

3.Interest is payable at the applicable rate on $90,000 from the date of resumption ie 1 November 2002 until the date of the payment of the advance of $7,000 on 18 November 2002.

4.Interest is payable at the applicable rate on the reduced balance of $83,000 thereafter until the advance of $20,000 on 29 November 2002.

5.Interest is payable at the applicable rate on the reduced balance of $63,000 thereafter until and including the day immediately preceding the date on which payment is made.

CATCHWORDS: Acquisition of Land Act 1967, ss 25, 26, 27, 28, 29
Marshall v Director-General, Department of Transport (1998) 19 QLCR 9 at 53, 54
Ogle v Director-General, Department of Transport (1992) 14 QLCR 197, 199

APPEARANCES: Ms C George, solicitor, Corrs, Chambers, Westgarth solicitors, for the applicant
No appearance by or for the respondent

The originating application

On 19 August 2010, the Logan City Council (the Council) filed an application that the Land Court determine the amount of compensation due to be paid to Mr Quigley (Q) for the resumption of land and that there be made such other orders as might be appropriate.
By Taking of Land Notice (no. 59) 2002 made by the Governor in Council on 31 October 2002 and published in the Gazette on 1 November 2002, no. 46, land was taken for park purposes and vested in the Council of the City of Logan for an estate in fee simple on and from 1 November 2002.

The land

The land taken was Lot 173 on RP126561, having an area of 819 m² and being the whole of the land in Title Reference 14547204, Parish of Yeerongpilly.

The Council’s claims

In the originating application, the Council states that the land was acquired in order to expand Mabel Park and that numerous attempts to reach agreement with the former owner, Q, on the amount of compensation payable to him have been unsuccessful.
It is stated that the Council paid Q $7,000 on or about 18 November 2002 and a further $20,000 on or about 2 December 2002 as advances against the compensation due to him. The evidence discloses that this payment was made on 29 November 2002.
The Council states that it received a claim for compensation from Q for $498,000, which, if the advances are allowed for, amounts to a further $471,000.
It is also stated that the claim was not in compliance with s.19 of the Acquisition of Land Act 1967 (the Act) as it was not signed by Q and was not supported by a statutory declaration.
Acting pursuant to s.24 of the Act, the Council referred the matter of compensation for Q to the Land Court by means of an Originating Application filed on 19 August 2010.

The process

The affidavit sworn on 20 September 2010 by solicitor Ms CE George of Corrs Chambers Westgarth, solicitors for the Council was filed in this matter on 21 September 2010.
The affidavit and exhibits disclose that there was a course of dealing between the Council and Q in an ultimately unsuccessful negotiation for purchase of the land. After this process proved unsuccessful the land was compulsorily acquired and negotiations moved to the matter of compensation. In the course of this phase of negotiations, advances against compensation were paid to Q.
Exhibit CG-8 to the affidavit is signed by Q and recites his right to receive all compensation for the resumption. In that document, Q agrees that $7,000 be paid to his bank account as an advance against compensation
Exhibit CG-9 to the same affidavit evidences Q’s signed agreement, on 28 November 2002, to receiving a further advance of $20,000.
The Council obtained a valuation report from Taylor Byrne Valuers. Dated 12 November 2003, it revised their previous preliminary assessment of $65,000 to $90,000 as at November 2002. The report left open the question of whether there might be any special value to Q in view of market increases which would have made it unlikely that Q could have purchased a replacement property for less than $100,000.
By letter of 17 December 2003 the Council offered Q $90,000 less the $27,000 advanced and stated that if their offer was not accepted by 16 January 2004 the Council intended to lodge the balance of the compensation with the Supreme Court in accordance with s.29 of the Act.
By an unsigned letter dated 10 January 2004, Q demanded that “those moneys” be paid into the bank account set out in that letter, which is for the attention of the author of the Council’s letter of 17 December 2003.
The Council questioned whether its offer was accepted or not but did not receive a response.
The matter did not advance until Q telephoned the Council on 27 October 2008 in an attempt to progress it. The Council sought a claim for compensation from Q so that there would be something definite to discuss. This led to Q’s unsigned letter of 30 October 2008 and a claim for $471,000.
The solicitor deposes that she is informed and believes that Council officers met with Q on 9 February 2009 to discuss compensation but that no agreement was reached.
When correspondence was returned unclaimed, a Council officer contacted Q on his mobile telephone number on 12 August 2009 and obtained his new postal address.
Some letters to Q were re-sent to the new address on 12 August 2009. Included was a letter dated 4 August 2009 advising that the Council had instructed Corrs Chambers Westgarth to lodge proceedings in the Land Court to determine compensation and that the Council was willing to negotiate a settlement prior to the Court hearing.
It is very clear from what has passed between the parties that the matter of the amount of compensation was in issue and that correspondence in relation to the matter proceeding to the Land Court was sent to the postal address provided by telephone by Q on the same day as he provided that address.
The Council obtained the services of Mr R.A. Standfast, a licensed commercial agent to attempt to serve the originating application on Q when its attempt to use his last known postal address met with the material being returned by Australia Post undelivered.
Mr Standfast has provided an affidavit sworn on 8 September 2010 describing his attempts to locate Q who he was able to speak with by mobile telephone. During that conversation Q agreed to attend at Mr Standfast’s office in the city to collect the material. Q would not make an appointment or provide an address where Mr Standfast could personally serve him. Q never attended on Mr Standfast and subsequent attempts to telephone Q were not successful although messages were left for him.
A further affidavit, sworn by Mr Standfast on 11 October 2010 deposes to some more unsuccessful attempts to locate Q.
Ms George provided an affidavit sworn on 24 February 2011 including exhibits showing the efforts made by IDS Group to attempt to locate Q. Extensive efforts brought an indication that he may have been working in the Northern Territory.
The Council brought an application pursuant to Rule 116 of the Uniform Civil Procedure Rules for substituted service and on 25 February 2011 this Court made the following orders:
“1. Pursuant to Rule 116(3) of the Uniform Civil Procedure Rules, service of the Originating Application filed in the Land Court on 19 August 2010 will be taken to have been served upon the Respondent after the publication of a notice in The Courier Mail (Queensland) and Northern Territory News (Darwin) on 19 March 2011, 26 March 2011 and 2 April 2011.
2. Pursuant to section 25(1) the Respondent is required to enter an appearance in this Court on the reference on or before 2 May 2011.
3. The form of the notice to be published in The Courier Mail and the Northern Territory News will be as follows:
‘Russell Irvine Quigley is required to take notice that pursuant to section 24(6) of the Acquisition of Land Act 1967 (Qld) the Logan City Council has referred the issue of the hearing and determination of the amount of compensation payable for the resumption of land situated at 95 Paradise Road, Slacks Creek, in the State of Queensland, more particularly described as Lot 173 on RP126564 in the County of Stanley, Parish of Yeerongpilly, to the Land Court (File No: AQL331-10).
Russell Irvine Quigley is required to enter an appearance with the Court by 2 May 2011.
If no appearance is filed by Russell Irvine Quigley on the reference on or before 2 May 2011 the Court will proceed to determine the matter of compensation payable in his absence, pursuant to section 25(4) of the Acquisition of Land Act 1967 (Qld) on Thursday 5 May 2011 commencing at 10.00am.’ ”
The affidavit sworn by Ms George on 4 May 2011 provided proof that the Court’s order was complied with.
No appearance was entered by Q, nor did he appear on 5 May 2011 when the Court proceeded to hear the matter.

The valuation and the compensation

At the hearing, the Council relied on the valuation dated 12 November 2003 by Taylor Byrne Valuers that the market value of the property was $90,000 at the relevant time. There is no challenge to this expert evidence so I accept it. The amount of compensation payable is $90,000.
Deducting the total of $27,000 paid to Q already, the amount of compensation still owing to Q is $63,000.

Interest

Interest may be ordered to be paid to Q pursuant to s.28 of the Act.
The Council submits that Q has not provided it with a proper claim for compensation in accordance with the Act and points to his failure to enter an appearance and to pursue compensation in an orderly and prompt way. For those reasons, the Council submits that interest should only be payable for a limited period, in order to reflect Q’s contribution towards compensation not having been paid to him sooner.
The Council referred to the case of Ogle v Director-General, Department of Transport.[1] In that case, Member White, as he then was, considered a submission made on behalf of the respondent that the interest period should be limited. The learned member referred to “numerous authorities” upon which the submission was based and said, at p.199:
“The common thread in these cases is that the respondent should not be required to pay interest on compensation for a lengthy period where a claimant has been dilatory in pursuing his statutory rights to the claim. A similar view was taken by the Land Appeal Court in White v. Brisbane City Council (1975) 2 Q.L.C.R. 359. In that case the matter was referred to the Court eight years after the resumption. Interest was allowed for a period of three years. Under s.28 of the Act it is in the discretion of the Court to award interest and as such there can be no hard and fast rules governing the matter. Each case will depend upon its own facts and circumstances.”
[1] (1992) 14 QLCR 197.
In that case interest was allowed from the taking of the land until the mortgagee stepped in to protect its interests. In that case the registered proprietor could not be found and did not enter an appearance. An order for substituted service on the registered proprietor was made.
The Council also placed reliance upon the decision of this court in Marshall v Director-General, Department of Transport.[2] At page 53 of his decision, the learned member said:
“The Land Appeal Court had the matter of interest to consider in White v. Brisbane City
[2] (1998) 19 QLCR 9 at 53-54 per Member Scott.
Council (1975) 2 QLCR 359. In this case ‘the claimant himself lay by and refused to pursue his statutory right to claim and eventually the respondent had the matter referred to the Court’ (at p.367). Reference was made to White in Ogle v. Director-General, Department of Transport (1992) 14 QLCR 197 and to Star and Merchin, as well as to Hardy v. Queensland Electricity Commission (1988) 12 QLCR 89 and Howard v. Commissioner of Main Roads (10 August 1989 unreported) and in reference to these the learned Member wrote (at 199), ‘The common thread in these cases is that the respondent should not be required to pay interest on compensation for a lengthy period where a claimant has been dilatory in pursuing his statutory rights to the claim’. This is a statement of principle which I agree may be distilled from the authorities. The question in the instant case is then, ‘was the claimant dilatory?’ ”
The learned member considered that a delay in that case of over 10 years established that the claimant had “been dilatory in pursuing his claim and that it would not be just for the constructing authority to be required to pay interest for the full period for which it would otherwise be responsible”.[3]
[3] Ibid p.54.
Although the respondent has not sought any order for interest it would seem to be in accordance with justice and equitable treatment that it be considered in order to protect his interests.
The Council submits that interest should be payable as follows:
a.On the compensation determined, ie $90,000, from the date of resumption ie 1 November 2002 until 18 November 2002 when there was an advance of $7,000.
b.On the reduced balance of $83,000 from then until 29 November 2002 when the second advance of $20,000 was made.
c.The Council submits that in the circumstances it would not be just and equitable for interest to be payable on the balance after the offer to settle was made on 17 December 2003.
d.The interest rates should be the relevant annual rate adopted by the Land Court.[4]
[4] These are published on the Land Court website - >
I accept these submissions save c. As Q was made an offer which, in its terms, he could have accepted by 16 January 2004 it would not be just that interest ought not to run until that date at least.
What remains is the question of whether interest should continue beyond that date. The Council submits that it should not, pointing to Q’s failure to pursue his claim and to its offer to him. Although he has not appeared and has made no submissions it is a consideration that the real value of compensation would be eroded in the absence of interest to preserve it.
Although there is no explanation for Q’s failure to appear and to vigorously pursue his claim to compensation there is no evidence that persuades me to make an adverse finding in that regard.
The Council has quite properly sought to have this matter resolved and, on balance, I am of the view that the value of the compensation to Q ought to be preserved by interest being paid on the balance of the compensation, $63,000, by the Council at the applicable Land Court published yearly rate, from the time of the payment of the second advance until the day immediately preceding the date on which payment of that compensation is made.[5]
[5] Acquisition of Land Act 1967, s.28(1).
I note that s.29(3) of the Act would allow the Council to pay the compensation into the Supreme Court if it is unable for any reason to make payment to Q.
The Council has not asked for any order as to costs and I make no order as to costs.

Orders

1. Compensation is determined to be payable by the Applicant to the Respondent in the sum of Ninety Thousand Dollars ($90,000) in respect of the resumption of Lot 173 on RP126561, area 819m² being the whole of the land in Title Reference 14547204, Parish of Yeerongpilly.
2. Interest is payable at the rate adopted for the relevant year in the table of interest rates published by the Land Court (the applicable rate).
3. Interest is payable at the applicable rate on $90,000 from the date of resumption ie 1 November 2002 until the date of the payment of the advance of $7,000 on 18 November 2002.
4. Interest is payable at the applicable rate on the reduced balance of $83,000 thereafter until the advance of $20,000 on 29 November 2002.
5. Interest is payable at the applicable rate on the reduced balance of $63,000 thereafter until and including the day immediately preceding the date on which payment is made.

WA ISDALE
MEMBER OF THE LAND COURT