Marshall v Department of Transport

[2004] QLC 44

LAND COURT OF QUEENSLAND

CITATION:

Marshall v Department of Transport  [2004] QLC 0044

PARTIES:

Melville Robert Marshall
(Claimant)

v.

Director-General, Department of Transport
(respondent)

FILE NO:

A1992/0077

DIVISION:

Land Court of Queensland

PROCEEDING:

Applications for Costs and the Award of Interest

DELIVERED ON:

27 May 2004

DELIVERED AT:

Brisbane

HEARD BY:

Written submissions

MEMBER

Mr RP Scott

ORDERS:

I order that the respondent pay the claimant Sixty-five Thousand Dollars ($65,000) being compensation with respect to the claim for injurious affection.

I order that the respondent pay the claimant interest at the rate of 10% per annum on the sum of $65,000 from 1 February 1986 up to and including 1 March 1993; then on this amount from 26 August 1996 up to and including the date upon which final payment of compensation is made.

I order that the claimant pay to the respondent 80% of the costs of and incidental to the hearing and determination of the claim for compensation for injurious affection, excepting for costs of the hearing dates of 15 and 16 April 2002 and 22 July 2002.  The amount of such costs shall 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:

Practice and Procedure - Costs - Respondent substantially successful on quantum and issues - Claimant prolonged hearing - Claimant awarded compensation - Respondent sought an order of nil compensation - Incomplete disclosure - Costs discounted

Practice and Procedure - Claimant dilatory - Period of interest abated - No abatement of interest rate

SOLICITORS:

James Conomos for the claimant
Crown Solicitor, Crown Law for the respondent

1. In reasons published on 27 February 2004 (the decision on remittal) in which compensation in the amount of $65,000 for injurious affection was determined in favour of the claimant, I invited the parties to make submissions on the issues of interest and costs.

Costs

1. The claimant's claim for compensation under all heads was in the amount of $1,253,904.24 or, alternatively, $1,143,926.24. 

2. In the decision at the conclusion of the "original hearing" (reported as Marshall v Director-General, Department of Transport (1998) 19 QLCR 9) compensation was determined in the amount of $348,446 under all heads, excluding injurious affection. The determination primarily comprised a figure of $300,070 for the "loss of efficacy" of sound land on the eastern boundary of the subject land, whilst the balance comprised:

   1.Value of land taken  $31,000

   2.Loss of "monies" thrown away  $5,280

3.Site office  $8,850

4.Legal and valuation fees  $3,246

1. The value of land taken was based on the valuation of Mr Slater, called by the respondent.  The parties agreed on the site office value and legal and valuation fees.

2. The respondent effectively contended for compensation in the amount of $43,096.

3. The claimant, whilst claiming $651,325 for injurious affection, received no compensation under that heading as the Court applied the then state of the law as expressed in a frequently referred-to authority:  Edwards v Minister of Transport [1964] 2…