Lomin Holdings Pty Ltd as TTE v Brisbane City Council
[2014] QLC 11
•2 April 2014
LAND COURT OF QUEENSLAND
CITATION: Lomin Holdings Pty Ltd as TTE v Brisbane City Council [2014] QLC 11 PARTIES: Lomin Holdings Pty Ltd as TTE
(applicant)v Brisbane City Council
(respondent)FILE NO: AQL280-12 DIVISION: General Division PROCEEDING: Application for costs DELIVERED ON: 2 April 2014 DELIVERED AT: Brisbane HEARD AT: Written submissions PRESIDENT: CAC MacDonald ORDERS: 1. The claimant is ordered to pay 50% of the respondent's costs of -
(i) preparing the respondent's request for particulars of the claim for compensation filed on 5 September 2012;
(ii) preparing the respondent's response to the claimant's statement of facts, issues and contentions filed on 5 September 2012;
(iii) all court reviews prior to the review on 13 August 2013;
such costs to be assessed on the standard basis.
2. The claimant is ordered to pay the respondent's costs of and incidental to this application for costs, to be assessed on the standard basis.
CATCHWORDS: Costs - s 34 Land Court Act - costs thrown away by amendment to claim.
Acquisition of Land Act 1967
Land Court Act 2000
COUNSEL: Mr ANS Skoien, for the respondent SOLICITORS: Deacon and Milani for the applicant
Brisbane City Legal Practice for the respondent
Background
The claimant in the substantive proceedings, Lomin Holdings Pty Ltd, has filed an application for the determination of compensation, under the provisions of the Acquisition of Land Act 1967 (the Act), in respect of the compulsory acquisition of certain land. This decision deals with an application for costs by the respondent Brisbane City Council, said to have been incurred as a result of the amendment of the claimant's case.
Relevantly, the following documents have been filed by each of the parties:
·The originating application was filed by the claimant on 26 June 2012, claiming $1,240,000 for diminution in the value of the land, on a before and after basis, including an assessment of injurious affection, being the fall in the market rents as a result of the resumption, the road work and the capital costs of reconfiguring the car wash, the impact on the reduction in size of the balance land and the value of the balance land as a result of the road works, less an advance against compensation requested from the respondent, but not yet paid.
An amount of $17,500 was claimed as disturbance comprising solicitor's fees of $13,200, valuers fees of $14,300 and GST to be confirmed. It is noted that the items detailed total $27,500, not $17,500 as claimed.
·On 5 September 2012, an amended originating application was filed by the claimant together with the claimant's statement of facts, issues and contentions. The only change was that $1,340,000 was claimed as compensation instead of $1,240,000. This claim has been treated as the originating application by the parties, and in this decision.
Paragraphs 17 and 18 of the statement of facts, issues and contentions indicated that the compensation claimed, $1,340,000 was calculated on a before and after basis, based on a before resumption value of $5,020,000 less the after resumption value of $3,680,000 including injurious affection as particularized.
·On 9 October 2012, the claimant filed its response to the respondent's request for further and better particulars of the applicant's statement of facts, issues and contentions.
·On 9 November 2012, the respondent's response to the claimant's statement of facts was filed.
·On 9 August 2013, a (further) amended originating application was filed by the claimant together with the claimant's amended statement of facts, issues and contentions. The amount claimed for diminution in the value of the land, including injurious affection, was reduced to $681,000.
Paragraph 17 of the amended statement of facts, issues and contentions showed that the amount claimed for significant works undertaken by the claimant had increased to $341,000, particularized in paragraph 17C as $101,060.97 for gas tank installation, $197,339.90 for reconfiguration of the car wash, plus 15% or $42,660.13.
Paragraph 17B identified the loss in value of the remaining land after the taking and attributable to the taking at $340,000.
Paragraph 18 claimed payment of $681,000 for diminution in value of the property based on a before resumption value of $5,600,000 less the after resumption value of $5,260,000 including injurious affection as set out above.
The application for costs was filed on 21 August 2013. The respondent said that as a result of the amendment of the claimant's case, as reflected in the amended statement of facts, issues and contentions dated 9 August 2013, the respondent would throw away the costs it had already incurred in respect of -
(a) conferences conducted with Counsel and/or experts in respect of the claim as set out in the originating application, statement of facts, issues and contentions and further and better particulars;
(b) all court appearances prior to the review on 13 August 2013 which, the respondent said, could be viewed as the first return date for the claim as set out in the amended statement dated 9 August 2013.
In subsequent submissions[1] the respondent identified the costs said to be thrown away by the amendment of the compensation claim as:
(c) the respondent's costs of the proceeding from the institution of the proceedings in July 2012 up to (but not including) the review on 13 August 2013, to be assessed on the standard basis; or
(d) in the alternative:
(i)the respondent's costs of preparing its request for particulars of the original claim;
(ii)the respondent's costs of preparing its response to the applicant's statement of facts, issues and contentions; and
(iii)the respondent's costs of all court reviews prior to the review on 13 August 2013.
[1] Filed 18 September 2013.
The respondent also submitted that the Court should grant the respondent's costs of and incidental to this application for costs, to be assessed on the standard basis.
The claimant submitted that the Court should not make the order sought by the respondent as, contrary to accepted practice, the respondent's valuer had failed to meet with the claimant in without prejudice discussions as requested by the claimant, both before and after the claim was filed. If the parties had met prior to the filing of the claim, as requested on multiple occasions, the claimant said -
(e) some or all of the issues in dispute would have been resolved;
(f) the positions of the respective parties and the basis for those positions could have been more clearly identified; and
(g) the originating application filed on 5 September 2012 would have been similar to the amended originating application filed on 9 August 2013.
The claimant was not apprised of the respondent's position until the respondent advised on 9 October 2012 that it would pay an advance of $5,000. Details were not provided until 9 November 2012 when the respondent filed and served its response, some three weeks after the date for filing ordered by the Court. Immediately on receipt of the response the claimant took steps to have its position reviewed which lead to the filing of the (further) amended originating application on 9 August 2013.
Further, the claimant had sought to discuss with the respondent the interplay between the compensation claim and a potential development application to the respondent's town planning section. The claimant was of the opinion that access to the approved shopping complex at the rear of the subject property would need to be altered to reduce the impact of the "scheme" behind the resumption which, the claimant said, would necessarily affect the claimant's compensation entitlement.
The claimant subsequently lodged a development application which was rejected. With that decision made, the nature of the claimant's compensation claim became much clearer, was amended by Counsel, and the amended claim filed on 9 August 2013.
Section 34 of the Land Court Act 2000[2] provides that -
"34 Costs
(2) Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate.
(2) If the court does not make an order under subsection (1), each party to the proceeding must bear the party’s own costs for the proceeding."
[2]Section 27 of the Acquisition of Land Act 1967 is not applicable to this application for costs, as s 27 provides for the costs of and incidental to the hearing and determination by the Land Court of a claim for compensation under that Act. No determination of compensation has been made as yet.
In my opinion, it is clear that some costs have been thrown away as a result of the claimant's significant amendment to its compensation claim, in August 2013, some 11 months after the claim was filed. The claimant says that the failure of the respondent to engage in early informal discussions with the respondent lead to there being a large discrepancy between the claim as originally filed and the amended claim. While it is true that that difference would probably have been identified earlier, if there had been without prejudice discussions between the parties, that fact does not relieve the claimant from its obligation to file a properly formulated claim in the originating proceedings. The claimant also says that the claim was made relying on the advice of a respected valuer. That may well be so. However, in circumstances where it appears that that advice may have been incorrect, there is no reason why the respondent should be expected to bear the costs thrown away by the respondent. Further, while the unsuccessful development application may have clarified the claimant’s compensation claim, there is no explanation as to why it lead to a reduction in that claim.
Although the respondent has thrown away some costs, I consider that the respondent has overstated the impact of the amendment. The amendment reduced significantly the quantum of the claim for loss in value of the subject land caused by the resumption, but increased and further particularized the quantum of the reconfiguration losses claimed. The basis of the claim otherwise remains the same in both applications. Much of the work done by the respondent remains relevant to the current claim and costs have not been completely thrown away in respect of the earlier claim. Similarly the Court reviews prior to the review on 13 August 2013 have not been completely wasted.
In the circumstances, I consider that an award of 50% of the costs identified by the respondent in paragraph (d) of [4] above, reflects, in a broad brush way, the costs thrown away by the respondent as a result of the amendment to the originating application.
As the respondent has been partially successful in its application for costs, the claimant should pay the respondent’s costs of the application.
ORDERS:
1. The claimant is ordered to pay 50% of the respondent's costs of -
(i)preparing the respondent's request for particulars of the original claim for compensation filed on 5 September 2012;
(ii)preparing the respondent's response to the claimant's statement of facts, issues and contentions filed on 5 September 2012;
(iii)all court reviews prior to the review on 13 August 2013;
such costs to be assessed on the standard basis.
2.The claimant is ordered to pay the respondent's costs of and incidental to this application for costs, to be assessed on the standard basis.
CAC MacDONALD
PRESIDENT OF THE LAND COURT
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