Matheson v The Commissioner of Main Roads

[1992] QLC 4

[1992] QLC 4

 

  LAND COURT

BRISBANE

11th February, 1992

Re:                 Claim for Compensation -
  A91-34.

R.G. and M. Matheson
  v.
  The Commissioner of Main Roads

DECISION ON APPLICATION FOR COSTS

In a Judgment handed down on 11th December, 1991, I determined compensation payable to R.G. and M. Matheson, consequent upon the taking of certain lands by the Commissioner of Main Roads.  The solicitor for the respondent made an application for an order that the claimant pay the respondent's costs of and incidental to the action.  The matter was heard in Maryborough and in the circumstances I reserved my decision upon the application to give to the agent for the claimants the opportunity of making submissions on the matter and for the solicitor for the respondent to reply to such submissions.  I have now received these submissions and the reply and have given the matter my consideration.
  The solicitor for the respondent submits that the amount initially claimed was the sum of $214,350 and this was amended during the course of the hearing, reducing the amount finally claimed to $191,871.50.  The claim was based on the premise that the resumed land constituted an integral and inseparable part of a road scheme initiated in 1975 with the resumption of contiguous lands then owned by the claimants.  In the result, this claim was not accepted and I adopted the valuation contended for by the respondent in the sum of $750.00 for the loss of land plus other amounts for items of disturbance with a total award of $3,614 with interest from the date set forth in the Judgment.  The respondent has been wholly successful in the matter.  The submission is that an order for costs should follow.  Reference is made to the decision of the Land Appeal Court in Moyse and Others v. Townsville City Council (1979) 6 Q.L.C.R. 271 where at page 274 the Court said -

"First, we do not think that the presence of sub-section (2) of Section 27 of the Act should be regarded as some sort of legislative suggestion that, where the claim is substantially more than the amount awarded, and the amount put in evidence by the authority is not substantially less than the amount awarded, the Court should not merely refrain from awarding any costs to the claimant, but should award costs to the authority.  Second, where the Court is considering whether it should award costs to an authority, it could be wrong to have regard merely to the amounts of the claim and of the award and of the value put in evidence by the authority.  We would think that usually it would be more relevant to enquire whether the conduct of the claimant, including his making of an exorbitant claim, if he has made one, has been such as to force the authority; unreasonably and unnecessarily, into litigation." 

It is the submission of Mr Maddern, the agent for the claimants, that the claim was made by the dispossessed owners in good faith on the advice of a valuer and they were entitled to rely upon the opinion of that expert.  They had also placed reliance on statements made following the first resumption that the proposed road would be "at grade" and in the circumstances believed they were justified in claiming injurious affection when the road was subsequently built as a "grade separated" road. 
  While I have found that in law the claim for injurious affection failed, I can appreciate that the claimants had some grounds for relying upon the information supplied following the first resumption that the road would be "at grade" which raised some expectations of a benefit to their balance land.  The evidence for the respondent from the expert witnesses was that it was believed at that time that cost restraints would result in an "at grade" separation although a "grade separation" for major highways was desirable.  In the result, by the time the road was constructed, funds were available to build the preferred road and this was done.  In the circumstances it was perhaps reasonable to pursue the matter of injurious affection for a determination of this Court.
  At p. 278 in the Moyse case the Land Appeal Court said -

"But we do say that there are cases in which the Court can properly take the view that it was reasonable to have the fact decided by the Court and that, notwithstanding the failure of the claim, there should not be any order as to costs.  We think that the learned Member was entitled to regard this as such a case. "

In this case, it does not appear unreasonable for the dispossessed owners to have accepted the advice of their valuer and to place some reliance upon the information supplied in 1975 of the type of road to be constructed.  Following the death of the valuer who undertook the valuation, they have incurred expense in engaging another valuer to present evidence to the Court.  The award of compensation is minimal and they would suffer severely if an order for costs was made.  In the circumstances, I propose to exercise my discretion and make no order as to costs. 
  (D.J. Barry)       
  President of the Land Court