Maroochy Central Holdings Pty Ltd v Maroochy Shire Council
[2005] QLC 10
•21 February 2005
LAND COURT OF QUEENSLAND
CITATION: Maroochy Central Holdings Pty Ltd v Maroochy Shire Council [2005] QLC 0010 PARTIES: Maroochy Central Holdings Pty Ltd
(applicant)v. Maroochy Shire Council
(respondent)FILE NO.: A2001/0104 DIVISION: Land Court of Queensland PROCEEDING: Applications for costs DELIVERED ON: 21 February 2005 DELIVERED AT: Brisbane HEARD AT: Written submissions MEMBER Mrs CAC MacDonald ORDER: 1. The costs incurred by both parties between 9 April 2003 and 28 September 2004 shall be costs in the cause, with the exception that the applicant is ordered to pay to the respondent the respondent's costs of preparation for and attendance at the hearing on 28 September 2004.
2. The costs are to be decided by the appropriate assessing officer of the Supreme Court, under the scale of costs prescribed by law for proceedings in the Supreme Court.
CATCHWORDS: Costs – Declaration – failure to progress application diligently – no notice of amended relief sought prior to hearing – respondent put to unnecessary expense – costs awarded to respondent for preparation and appearance – Land Court Act 2000 ss.33, 34 APPEARANCES: Mr GR Allan for the applicant
Mr ANS Skoien for the respondentSOLICITORS P&E Law for the applicant
Legal and Property Services, Maroochy Shire Council
Background
On 19 March 1999, Maroochy Shire Council (the respondent) resumed 645 square metres of land owned by Maroochy Central Holdings Pty Ltd (the applicant) for road purposes. The land is now described as Lot 1 on SP 115996 in the County of Canning, Parish of Mooloolah, and is situated at 15 Southern Drive, Maroochydore.
Between September 2000 and March 2001 the appellant paid advances to the respondent against compensation totalling $180,000.
On 27 March 2001, the applicant lodged a claim in this Court seeking a determination of the compensation payable in respect of the resumption.
On 22 March 2002, the applicant lodged a general application in this Court. The application, as subsequently amended on 26 March 2002, sought the following relief:
1.A declaration that, in the events which have happened, and upon the proper construction of the Acquisition of Land Act 1967 ('the Act'), the appropriate procedure to follow in respect of Lot 1 on SP 115996, County of Canning, Parish of Mooloolah is that provided for in s.17 of the Act.
2.Such further or other orders or declarations as the Court deems appropriate.
3.Orders and directions concerning the future conduct of the Applicant's claim for compensation.
The application was heard by me on 26 March 2002. In issue was the appropriate procedure to be followed following the respondent's decision that it no longer required the land for the purposes for which it was taken. The applicant submitted that the processes set out in s.17 of the Act should be followed. Briefly, the effect of s.17 is that if at any time after the publication of the gazette resumption notice and before the amount of compensation is determined by the Land Court or the payment of compensation is made, it is found that the land is not required for the purpose for which it was taken, the Governor in Council may revoke the gazette resumption notice, with the result that the land would revest in the owner immediately prior to the day when it was taken under the gazette resumption notice. In addition, the claim for compensation for the taking of the land is limited to compensation for the loss or damage and costs or expenses incurred by the owner in consequence of the taking of the land and prior to its revesting (s.17(4)).
The respondent submitted that s.17 of the Act could not be utilised because compensation (that is, the advance of $180,000) had been paid, and that therefore s.41 of the Act applied. Section 41 provides that where land has been taken, and within seven years the constructing authority no longer requires the land, the constructing authority shall offer the land for sale to the former owner at a price to be determined by the Chief Executive of the department administering the Valuation of Land Act 1944.
On 25 September 2002, I made the declaration sought in [4](1) above, for written reasons handed down at the same time.
On 6 February 2003, I ordered that the respondent pay the costs of the applicant of and incidental to the application for a declaration.
On 9 April 2003, the Land Appeal Court allowed an appeal by the respondent against my decision of 25 September 2002, set aside the declaration, and ordered that the application be remitted to me for further hearing in accordance with that Court's reasons for judgment.
In the course of its reasons for judgment, the Land Appeal Court said:
"[48] It is theoretically open that in a particular case where the constructing authority finds that the resumed land is not required for the purpose for which it was taken the processes under ss 17 and 41 could both apply. In view of the structure of the Act which supports the process under s 17 occurring at a relatively early stage after the resumption and the effect of revesting being to reverse the resumption, the constructing authority would have to consider whether it would proceed under s 17, before acting under s 41 of the Act. If the process under s 17 was successfully invoked, there is no longer a taking of land and therefore no room for s 41 to operate.
[49] If the constructing authority decided to proceed under s 17(1), but were unable to obtain the former owner’s consent to the revesting, the discontinuance of the resumption could not proceed. If the constructing authority no longer required the land, it would be bound to comply with s 41 in seeking to dispose of the land to the former owner at the price provided for in that provision.
…
[53] Before compensation has been determined or agreed, a constructing authority that finds it no longer requires the resumed land for the purpose for which it was taken, must consider whether it is an appropriate case to invoke s 17 of the Act. In these circumstances, as a matter of construction of the Act, until the constructing authority has decided that it is not appropriate to implement the process under s 17 or otherwise exhausted the possibility of discontinuance under s 17, the constructing authority should not proceed to apply s 41 of the Act to a proposed parting by the constructing authority with the resumed land.
Whether a declaration should have been made
[54] On the one hand, the appellant [the Maroochy Shire Council] may have good grounds for not proceeding under s 17 which would make s 41 of the Act applicable to any disposal of the land by the appellant. On the other hand, there may not be a good reason for the appellant not to embark on a discontinuance under s 17 of the Act.
[55] It is not apparent on the material that was before the learned Member that the appellant has undergone the process of considering whether it is appropriate or feasible to seek the respondent’s consent to the revesting of the land on the terms provided by s 17.
[56] What is apparent from the resolution that was passed by the appellant on 4 July 2001 was that the appellant did not appreciate the distinction between a discontinuance of the subject land under s 17 of the Act and a disposal of the land under s 41 of the Act. This confusion also seems to be evident in the appellant’s resolution of 29 August 2001. The processes are distinct, but the appellant seems to have blurred the processes.
[57] It is not for the Land Court or this Court to substitute its views as to how the appellant should exercise its decision making powers, in considering whether a declaration and, if so, what declaration should be made under s 33 of the LCA.
[58] In view of the state of the material before the learned Member, it was not open to the learned Member to make a declaration in the terms of that made on 25 September 2002. In the light of these reasons, it may be that there is a form of declaration which could be made, if the parties have an opportunity to place further material before the learned Member.
[59] The appeal is therefore allowed, the declaration made on 25 September 2002 is set aside and the application is remitted to the learned Member for further hearing. Although the appellant has been successful in having the declaration set aside, it has not been successful in pursuing the construction of s 17 of the Act which it advanced on the appeal and, as a result of its misconception about the effect of ss 17 and 41 of the Act, the matter between the parties remains unresolved, until at least the further hearing. We would therefore not be disposed to make any order for costs in respect of the appeal, but this must be subject to hearing submissions from the parties on that issue."
On 27 May 2003, the Land Appeal Court, following application by both parties for costs of the appeal, declined to make any order as to the costs of the appeal. In addition, the Land Appeal Court made no order in relation to the costs order made by me on 6 February 2003.
On 28 September 2004, the remitted matter came on before me, for hearing, as a result of a consent order made by the President of this Court at a callover held on 4 June 2004. Consent orders made on 2 December 2003 remained in place. So far as is relevant, those orders were that –
2Witnesses' statements and any expert reports be filed and served not later than twenty-eight (28) days prior to the hearing.
3Any response reports be filed and served not later than fourteen (14) days prior to the hearing.
5The parties have liberty to apply.
6The hearing of the claim for compensation be adjourned to a date to be fixed.
No statements or other materials were filed in the Court prior to 28 September 2004. At the hearing on that day, the applicant sought leave to file an affidavit sworn by David Charles Fahl, Solicitor for the applicant on 27 December 2004 and to amend the (amended) application filed on 22 March 2002 to seek the following orders:
1.That within 7 days of the date of this order, the Council of the Shire of Maroochy make an election to proceed under either s.17(1) or s.41(1) of the Acquisition of Land Act 1967 in respect of Lot 1 on SP 115996, County of Canning, Parish of Mooloolah which land was taken for road purposes by the Council by proclamation published in the Government Gazette on 19 March 1999.
2.The Council is to provide the applicant with written notice of the election made within 1 day after the date the decision is made.
3.Such further or other order as the Court deems appropriate.
4.That the respondent pay the applicant's costs of and incidental to this application to be assessed in accordance with the scale of costs of the Supreme Court of Queensland.
The respondent resisted the application for leave to amend the application and to file the affidavit of David Charles Fahl. Brief submissions were made on behalf of both parties in the course of which I indicated that I was doubtful as to whether I had the power to make the declaration sought in [13](1) above. The proceedings were adjourned to enable the parties' representatives to discuss the matter further. On resumption of the hearing, I was informed that the parties had agreed to give certain undertakings, and to consent to certain directions to be made by me. Those directions subsequently issued. Leave was given to file the affidavit of Mr Fahl.
The result was that the parties agreed to a timetable whereby the respondent undertook to decide whether to proceed under s.17(1) of the Act, and if so, to give written notice of the decision to the applicant and to seek the applicant's agreement to the revesting of the land. If the respondent decided not to proceed under s.17(1), then the respondent undertook to offer to sell the land back to the applicant under s.41 of the Act. The applicant undertook to respond in writing within a month to any request made by the respondent to enter into an agreement as to the revesting of the land under s.17. On that basis, the parties consented to an order that, except for the determination of the question of costs, the application filed on 22 March 2002 (that is, the application which had been remitted to me for rehearing) be adjourned to a date to be fixed.
Both parties have subsequently applied for costs and this decision is concerned with those applications.
Applications for Costs
The applicant has sought an order that the respondent pay the applicant's costs of and incidental to the proceedings of 28 September 2004.
The respondent has sought an order that the applicant pay the costs of the respondent that have been incurred, since 27 May 2003, in respect of the application filed on 22 March 2002. An affidavit by Michelle Grey, solicitor, employed by the respondent Council was filed on 1 November 2004.
Applicant's Submissions
Relying on the decision of the Land Appeal Court in this matter, particularly paragraphs [48] to [59], Counsel for the applicant submitted that -
· it was incumbent on the respondent Council to make an election prior to the proceedings on 28 September 2004 as to whether it would proceed under s.17 of the Act. Mr Fahl's affidavit (filed by leave on 28 September 2004) made it clear that the respondent had ample notice prior to the hearing on 28 September 2004 that the respondent was required to make a decision as to which section of the Act it intended to proceed under in order to return the applicant's land.
· no election has been made by the respondent and no explanation has been provided by the respondent for its failure to make such an election.
· the actions of the applicant in seeking the intervention of the Court on 28 September 2004 were justified when the history of the resumption is reviewed. There has been no determination of compensation in respect of the resumption of the land nor under s.17(4) of the Act. No election has been made by the respondent. The applicant was therefore forced to seek the intervention of the Court in an attempt to force the Council to make the necessary election. The applicant's strategy was successful as reflected in the respondent's undertakings given on 28 September 2004.
· the respondent advised the applicant on 24 September 2004, that it was ready to proceed with the hearing on 28 September 2004. In the absence of any election by the respondent, it is difficult to conceive any basis for the assertion that it was ready to proceed with the hearing.
· the proceedings on 28 September 2004 could have been avoided if the respondent had sought agreement with the applicant about those matters which are now the subject of the undertakings.
Respondent's Submissions
The respondent relied on the chronology of events set out in its outline of submissions on costs, and submitted -
· the question of statutory construction raised by the application was finally decided by the Land Appeal Court as was the question of costs. There was therefore no reason to continue the application and the respondent was unnecessarily put to additional costs.
· in so far as the application sought to force the respondent to exercise its discretion under s.17, it was doomed to failure because of the limits of judicial power in respect of administrative decisions. The discretion under s.17 of the Act is to be exercised by the respondent and the Governor in Council.
· the respondent received no notice or request prior to the hearing on 28 September 2004 that the applicant had decided to seek a declaration that the respondent elect to act under one statutory provision or the other. The respondent agreed, at the earliest opportunity, to make that election. The respondent should be compensated for the prejudice in relation to costs as a result of the application for relief not previously demanded.
· to the extent that the applicant suggested that the respondent should have made such an election at an earlier time, the respondent noted that
- there is no obligation imposed on the respondent to make an election in respect of s.17 – see Reasons for Judgment, Land Appeal Court at [44];
- there was no evidence of any request for such an election prior to the request implied by the application to amend on 28 September 2004;
- the respondent and the applicant have been attempting generally to resolve the matter at least since 2004;
- on 28 September 2004 the respondent promptly offered and gave the undertakings about an election under s.17.
· the respondent was brought to court by the applicant and has thus incurred costs for which it should be compensated.
Decision on costs
Section 34 of the Land Court Act 2000 provides, in part, that
"34. Costs
(1) 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.
…
(5) The court may, if it considers it appropriate, order the costs to be decided by the appropriate assessing officer of the Supreme Court, under the scale of costs prescribed by law for proceedings in the Supreme Court."
Although the matter was remitted to me by the Land Appeal Court for further hearing, it is clear that for such a hearing to take place, additional material would have to be placed before me including an application for leave to further amend the application of 22 March 2002. As the Land Appeal Court said (at [58]), it was not open to me to make a declaration in the terms of that made on 25 September 2002 although the Court said that it may be that there was a form of declaration which could be made, if the parties had an opportunity to place further material before the Member. The state of the proceedings was such therefore, that when the matter came on for hearing on 28 September, the only effective application that was before me was the balance of the amended application filed on 22 March 2002, that is –
2.Such further or other orders or declarations as the Court deems appropriate.
3.Orders and directions concerning the future conduct of the applicant's claim for compensation.
The correspondence exhibited to the affidavits of Mr Fahl and Ms Grey indicates that, after the decision of the Land Appeal Court was handed down, the parties entered into discussions aimed at progressing a resolution of the matter. Those discussions were complicated by the fact that for a period from at least February 2004 until 6 April 2004 it was thought that the land might be resumed by the Queensland Government for the purposes of a transport corridor. In the face of that prospect, the applicant was, understandably, reluctant to request the return of the land although Mr Fahl had indicated to Ms Grey in a letter of 28 November 2003 that his client consented to the revesting of the land under s.17 of the Act. In addition, the applicant was also concerned as to what development might be approved on the land, as the town plan had altered since the land had been resumed. As noted previously, the matter was listed in the callover before the President on 4 June 2004. By that time, it was known that the land would not be resumed by the State Government. At the callover, the representatives of both parties asked that the remitted matter be set down for hearing in the latter part of September which would allow time for further settlement discussions to take place.
Since the parties were endeavouring to settle the matter, and subject to what is said in [25] and [26] below, I can see no reason to make an order for costs in favour of or against either party in respect of the period of time from 27 May 2003 to September 2004. In my opinion, those costs will be more properly dealt with as part of the substantive claim for compensation and should be costs in the cause.
The hearing of the application on 28 September 2004 raises different issues. Counsel for the applicant submitted that it was necessary to seek the intervention of the Court in an attempt to force the respondent Council to make the necessary election. It appears that the discussions between the parties had stalled. The correspondence between the parties indicates that the Council was trying to ascertain whether the applicant wanted the land back, before making an election as to whether to proceed under s.17. The applicant was seeking to obtain an indication from the respondent as to what development might be approved on the land.
It is acknowledged that the applicant is a dispossessed owner who was faced with uncertainty as to the future allowable use of the land. Nevertheless, I consider that it was incumbent on the applicant, who had the carriage of this aspect of the matter, to progress the application diligently, or to seek a timely adjournment, once the matter was set down for hearing. In a letter dated 23 September 2004, the applicant's solicitor requested the respondent's solicitor to agree to an adjournment of the pending hearing. This request was refused and the respondent cannot be criticised for that refusal. The proceedings had previously been adjourned earlier in the year, by consent. The applicant took no steps, until the hearing, to give notice to the Court or the respondent of the amended principal relief sought. Although the parties came to an agreement, after the hearing commenced, I consider that the applicant's failure to give proper notice prior to that hearing, as to what relief it sought, put the respondent to unnecessary expense. I consider, therefore, that the respondent should receive its costs of preparation for, and appearance at, the hearing on 28 September 2004.
Orders
1.The costs incurred by both parties between 9 April 2003 and 28 September 2004 shall be costs in the cause, with the exception that the applicant is ordered to pay to the respondent the respondent's costs of preparation for and attendance at the hearing on 28 September 2004.
2.The costs are to be decided by the appropriate assessing officer of the Supreme Court, under the scale of costs prescribed by law for proceedings in the Supreme Court.
CAC MacDONALD
MEMBER OF THE LAND COURT
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