McPherson v Caloundra City Council (No. 2)
[2005] QLC 57
•25 November 2005
LAND COURT OF QUEENSLAND
CITATION: McPherson v Caloundra City Council (No. 2) [2005] QLC 0057 PARTIES: Graham Eric and Judith Helen McPherson
(appellants)v. Caloundra City Council
(respondent)FILE NO: A2004/0129 DIVISION: Land Court of Queensland PROCEEDING: Application for costs DELIVERED ON: 25 November 2005 DELIVERED AT: Brisbane HEARD AT: Written submissions MEMBER Mrs CAC MacDonald ORDER: 1. The respondent is ordered to pay the claimants' costs of and incidental to the hearing and determination by the Land Court of the claim for compensation.
2. If the parties are unable to agree on the costs to be paid, such costs are to be decided on the standard basis 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 – principles to be applied – costs awarded to claimant – appropriate scale – need for claimant to engage 2 counsel – refusal of Court to certify – question for taxing officer. SOLICITORS: Griffiths Parry for the applicants
Garland Waddington for the respondent
This is an application for costs arising out of the hearing and determination of a claim for compensation brought by the claimants against the respondent in respect of the resumption of the claimants' land under the provisions of the Acquisition of Land Act 1967 (the Act).
The claimants have sought an order that the respondent pay the claimants' costs of and incidental to those proceedings to be assessed on the Supreme Court scale by the Supreme Court costs assessor, if not agreed. The claimants have also submitted that the Court should indicate that the claimants were entitled to engage two counsel to represent their interests at the hearing and should so certify.
Counsel for the respondent submitted that
· the order for costs should be that the respondent pay the claimants' costs of and incidental to the appeal to be assessed by the assessing officer on the standard basis;
· it was unnecessary that the costs order should specify that the costs be agreed, and failing agreement, be assessed;
· it was unnecessary that the order specify that the scale should be the Supreme Court scale, although Counsel conceded that the scale should be the Supreme Court scale; and
· there should be no certification that more than one counsel was appropriate because that was a matter which would, appropriately, be left to the assessing officer.
After these submissions had been filed by both parties, the solicitors for the claimants wrote to the Court submitting that the respondent's submission on costs had been filed out of time and that I should not take them into account in this decision. I do not accept this submission because I consider that the respondent's submissions were filed within the time specified in the Court's order.
Section 34 of the Land Court Act 2000 provides, so far as is relevant, 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.
(6) If the court makes an order under subsection (4), the assessing officer may decide the appropriate scale to be used in assessing the costs."
Section 27 of the Acquisition of Land Act provides, so far as is relevant, that
"Costs
27.(1) Subject to this section, the costs of and incidental to the hearing and determination by the Land Court of a claim for compensation under this Act shall be in the discretion of that court.
(2) If the amount of compensation as determined is the amount finally claimed by the claimant in the proceedings or is nearer to that amount than to the amount of the valuation finally put in evidence by the constructing authority, costs (if any) shall be awarded to the claimant, otherwise costs (if any) shall be awarded to the constructing authority.
…"Section 34 of the Land Court Act and s.27(1) of the Acquisition of Land Act give the Land Court a broad discretion as to the award of costs. The exercise of that discretion is, however, constrained by s.27(2) of the Acquisition of Land Act.
The amount finally claimed by the claimants was $3,050,000. The respondent contended that the value of land as at the date of resumption was $2,030,000. Compensation was determined in the sum of $2,699,000.
It is apparent that the amount of compensation as determined is nearer to the amount finally claimed by the claimants than the amount of the valuation finally put in evidence by the respondent, and therefore, pursuant to s.27(2) of the Acquisition of Land Act, any costs must be awarded to the claimant.
In Yalgan Investments Pty Ltd v Council of the Shire of Albert (1997) 17 QLCR 401 at 406–408, the Land Appeal Court summarised the effect of a number of previous decisions as to the scope and exercise of this Court's discretionary powers to award costs in compensation matters. The following propositions are relevant to this matter –
· Compulsory acquisition cases differ from ordinary claims in the significant respect that the claimant, unlike the ordinary plaintiff, has no choice whether to make a claim or not. The mere acquisition by compulsory process gives the claimant a claim to compensation which he or she can hardly be expected to renounce.
· The discretion to award costs may not be exercised in an arbitrary manner but must be exercised on principled grounds or judicially, that is, for reasons that can be considered or justified by reference to relevant considerations.
· In general, a party who is wholly successful in litigation can expect a favourable order for costs. Where compensation is awarded to one who had already been given, by statute, the right to receive it, it is just to say that the claimant ought, in the absence of special circumstances, to receive his or her reasonable costs of obtaining the compensation that is, ex hypothesi, his due. But costs are discretionary and no hard and fast rules will ever be allowed to occupy part of an area controlled by a discretion, however predictable the result of its exercise may be in certain sorts of cases. In some cases, the Land Court may consider that there are sufficient reasons for departing from the general rule.
The Court also said (at 417) that this Court should, in an appropriate case, give sufficient weight to the principle that, in cases where the discretion is exercisable only in favour of the claimant and in the absence of special circumstances, the claimant should obtain the costs of achieving fair compensation.
The hearing of the evidence and submissions in this matter occupied two days and another full day was devoted to a view.
At the hearing, the parties' valuers valued the subject land by comparison with sales of comparable properties. The major points of difference between the parties were as to the identification of suitable sales, the application of the sales evidence and whether a piecemeal valuation or an overall approach should be adopted.
The claimants' valuer carried out two valuations. The first adopted a piecemeal approach and valued the subject land as at the date of resumption at $2,640,000. The second used an overall approach and valued the land at $3,050,000, which was the amount finally claimed by the claimants. The respondent's valuer adopted a piecemeal approach and valued the land at $2,030,000.
I rejected the overall approach adopted by Mr Henderson in his second valuation and valued the property on a piecemeal basis.
The claimants relied on 9 sales in support of the claim. The respondent challenged the validity of three of those sales, Nos. 1 and 2 (which were adjoining properties) and No. 8, and a considerable period of time was devoted to evidence and cross-examination relating to that challenge. In the end, I decided that Sales 1 and 2 should be used as the primary evidence for valuing the subject land, but that Sale 8 was not reliable.
The respondent relied on five sales in support of its valuation. Two of those sales were also used by the claimants' valuer. I held that two of the remaining sales could not be used for the valuation as they were not sufficiently comparable with the subject land.
This is a case where my discretion to award costs can only be exercised in favour of the claimant. The claim succeeded because I accepted significant parts, although not all, of the evidence and submissions made on behalf of the claimants. There was disagreement between the parties as to which sales should be used for the purpose of valuing the subject land, and as to the value of that land so that it was necessary for the claimants to bring the matter to a hearing in order to obtain their compensation. In those circumstances I consider that, in principle, the claimants should be awarded costs relating to the hearing and determination of the claim for compensation. Other than in relation to two matters, the respondent has not submitted otherwise.
Both parties have submitted, and I agree, that the costs should be awarded on the standard basis.
Counsel for the claimants has sought an order that the costs be assessed on the Supreme Court scale by the Supreme Court costs assessor, if not agreed. Counsel for the respondent says that it is unnecessary for any costs order to specify costs "to be agreed, and failing agreement, to be assessed etc". He also submitted that it is unnecessary that the order specify that the costs are to be paid on the Supreme Court scale, although he conceded that that was the appropriate sale.
It would be preferable if the issue of the quantum of costs to be paid by the respondent were decided by agreement between the parties to avoid the costs of referring the matter to the Supreme Court assessing officer. In order to make it clear that the parties may resolve the costs issue by agreement should they wish to do so, I will include a qualification to that effect in the order. I also consider that it is appropriate to order that the costs be assessed on the Supreme Court scale because of the amount of money involved.
Counsel for the claimants has also requested that I indicate that the claimants were entitled to engage two counsel at the hearing and that I should so certify.
The question of whether a party was entitled to engage two counsel is one which is normally determined by the Supreme Court assessing officer. No good reason has been advanced as to why the normal practice should not be adopted. In the circumstances I am not prepared to make the requested certification.
ORDERS
1. The respondent is ordered to pay the claimants' costs of and incidental to the hearing and determination by the Land Court of the claim for compensation.
2. If the parties are unable to agree on the costs to be paid, such costs are to be decided on the standard basis 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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