Maroochydore Central Holdings Pty Ltd v Maroochy Shire Council - [2003] QLC 2

LAND COURT OF QUEENSLAND
CITATION: Maroochydore Central Holdings v Maroochy Shire Council [2003] QLC 2

PARTIES: Maroochydore Central Holdings Pty Ltd
(applicant)
v
Maroochy Shire Council
(respondent)

FILE NO/S: A2001/0104

DIVISION: Land Court of Queensland

PROCEEDING: Application for Costs

ORIGINATING COURT: Land Court

DELIVERED ON: 6 February 2003

DELIVERED AT: Brisbane

HEARD AT: Written submissions

MEMBER: Mrs CAC MacDonald

ORDER: 1. It is ordered that the respondent pay the costs of the applicant of and incidental to the application for a declaration filed on 22 March 2002.
(2)If the parties do not agree on the amount of such costs then that amount shall be ascertained and fixed by the appropriate assessing officer of the Supreme Court.

The applicant has sought an order that, pursuant to s.34 of the Land Court Act 2000, the respondent pay the applicant’s costs of and incidental to the hearing and determination of an application filed by the applicant on 22 March 2002, such costs to be agreed or taxed.
The application of 21 March 2002 was made pursuant to s.33 of the Land Court Act 2000 for a declaration as to the appropriate procedures to be followed under certain provisions of the Acquisition of Land Act 1967. The background to the application is explained in my decision of 25 September 2002.
By judgment delivered on 25 September 2002, I made the declaration sought by the applicant, that is that in the events which had happened and upon the proper construction of the Acquisition of Land Act 1967, 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 that Act. At the time that the decision was handed down, I directed that the applicant should file any submissions concerning costs within 21 days from the date of the delivery of judgment and that the respondent file any reply to such submissions within 21 days of the date of lodgment of the applicant’s submissions.
By application dated 16 October 2002 received in the Land Court on 17 October 2002, the applicant sought costs as outlined above. The applicant stated that a copy of the application had been served on the respondent. No reply has been received from the respondent.
The applicant has submitted that an order for costs in respect of the application for the declaration should be made in its favour because –
·The applicant has been successful in obtaining the declaration sought;
·The applicant took exhaustive steps to ventilate the issue with the respondent before initiating the proceedings;
·The respondent’s intractable position on the issue gave the applicant no choice, given that the applicant remains divested of its lands despite the resolution of the respondent;
·The applicant has in all the circumstances behaved reasonably in bringing the application and no conduct on its part disentitles it from an award of costs;
·The respondent was, at all material times, on notice of the applicant’s intention but continued to fail or refuse to reconsider its position which was found to be incorrect at law.
It was further submitted by the applicant that the engagement of Queen’s Counsel in the matter (without junior counsel) was appropriate in the circumstances because the matter involved the determination of an important point of law arising under the Acquisition of Land Act and further involved the first decision under s.33 of the Land Court Act, particularly relating to the construction of legislation within its jurisdiction. On that basis, the applicant has requested that the Court should certify that an order for costs include an allowance for Queen’s Counsel.
Section 34(1) of the Land Court Act 2000 provides that:
“34.(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.
It has been held that the discretion given to the Court in s.34 is full and unfettered, and that the Court must exercise the discretion judicially, that is for reasons that can be considered and justified: Townsville City Council v Moyses and Morris (1979) 6 QLCR 271 at 273, 274; Kabale Holdings Pty Ltd v Chief Executive, Department of Transport (1997) 18 QLCR 166 at 198; Nevis Pty Ltd v Chief Executive, Department of Main Roads, unreported, Land Appeal Court, 26 August 2002.
In Wyatt v Albert Shire Council [1987] 1 QdR 486 at 493, the Full Court said that:
“We would, in any event, have grave doubts about the correctness of an approach that required ‘some exceptional circumstance’ to be established before a discretion of the width of that conferred by s.31 [of the City of Brisbane Town Planning Act 1964] could be exercised. So to require would in effect be to deny the very discretion that the section sets out to invest. Equally, however, for reasons already given, we do not consider that it would be right to start with the common law preconception that costs follow the event.”
The Court also said (at 489) that the exercise of an unfettered discretion does not exclude resort to the “settled practice” of a court where such a practice has evolved. The decision in Wyatt has been applied in respect of Land Court matters on a number of occasions: see for example, Kabale Holdings Pty Ltd at 196-198; Nevis Pty Ltd v Chief Executive, Department of Main Roads, unreported, Land Appeal Court, 26 August 2002.
In the course of exercising its discretion in relation to an application for costs in resumption cases, the Land Appeal Court has taken into account the fact that the claimant has no choice as to whether to make a claim because the compulsory acquisition gives the claimant a right to make a claim to compensation which he or she could hardly be expected to renounce (Yalgan Investments Pty Ltd v Council of the Shire of Albert (1997) 17 QLCR 401 at 407). The Court in Yalgan also said (at 407) that in general a party who is wholly successful in litigation can expect an order for costs in her or his favour (at 407). Although these statements may not demonstrate a settled practice of the Court, they do provide an indication of some relevant matters that may be taken into account in exercising the discretion.
The applicant has been successful in its application for the declaration sought. The application was made in the context of a claim for compensation as a result of the compulsory acquisition of land. The success of the applicant together with the fact that it is claiming compensation resulting from a compulsory acquisition of land are good reasons for the exercise of my discretion as to the award of costs in its favour.
The applicant has requested the Court to certify that the costs include an allowance for Queen’s Counsel. If the parties are unable to agree on costs, it will be necessary for the amount of the costs to be decided by the appropriate assessing officer of the Supreme Court. It would seem to be appropriate that the assessing officer should also decide whether an allowance should be made for Queen’s Counsel.

Orders
(1)It is ordered that the respondent pay the costs of the applicant of and incidental to the application for a declaration filed on 22 March 2002.
(2)If the parties do not agree on the amount of such costs then that amount shall be ascertained and fixed by the appropriate assessing officer of the Supreme Court.

CAC MacDONALD
MEMBER OF THE LAND COURT