Millar v Chief Executive, Department of Natural Resources
[2000] QLC 78
•14 December 2000
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BRISBANE
14 DECEMBER 2000
Re: Appeal against Annual Valuation -
Valuation of Land Act 1944 -
Valuation Roll No.: 27007
Local Government: Caboolture
(AV99-694)
James D and Phyllis M Millar
v.
Chief Executive, Department of Natural Resources
DECISION ON COSTS
Background:
This matter deals with a property at Eastern Access Road, Burpengary and described as Lots 1 to 4 on GTP 3987 and Lots 6 and 7 on GTP 102039, Parish of Burpengary. The subject land is used for commercial purposes. The matter before the Court relates to an appeal by the appellants against the unimproved value of the subject land under the Valuation of Land Act 1944.
There was no appearance by the appellants. Mr K Fisher, Counsel of Crown Law, appeared for the respondent. In view of the failure of the appellants to appear, the Court acceded to an application from Mr Fisher to dismiss the appeal for want of prosecution. In the event Mr Fisher then sought costs thrown away by the respondent to an amount of $400. This Court then awarded costs to $400, and noted that it would provide reasons for awarding costs as a guide to the appellants.
The Facts:
The Chief Executive issued a valuation of the subject land on 22 March 1999 at $205,000. Following an objection the Chief Executive confirmed that figure on 12 July 1999. The appellants then appealed to the Registrar of the Land Court on 12 August 1999, claiming the unimproved value should more properly be $150,000.
On 16 August 1999, the Registrar wrote to the appellants acknowledging receipt of the appeal, and advising that the Court could offer a preliminary conference provided both parties were agreeable. That letter also advised that unless acceptance of the preliminary conference offer was received within 14 days, then the matter would be set down for hearing at the first available sittings of the Land Court at Caboolture. There was no response to that letter.
On 22 September 2000 the Registrar of the Land Court issued a Court Notice advising that the matter was listed for hearing in Brisbane at 2.00 p.m. on 23 November 2000. The hearing commenced at 2.40 p.m. on 23 November 2000.
Mr Fisher advised that Mr Gavin Dunn, Senior Valuer for the respondent, had been in contact with the appellants early in October 2000, and subsequent to the issuing of the Court Notice. Mr Dunn advises that the appellants had indicated that they would be attending the hearing on 23 November 2000, and that they did not intend to seek legal representation. There was no further contact between the parties.
On 23 November 2000, when there was no appearance by the appellants, the Registrar of the Land Court attempted to contact the appellants at their home address at 29 Griffith Street, New Farm, to ascertain if they had been delayed in appearing at the Court. The telephone inquiry was redirected to an answering service, and there was no further immediate response from the appellants. At the hearing on 23 November 2000 Mr Fisher was accompanied by two valuers from the respondent. The matter was then dismissed for want of prosecution.
In his application for costs thrown away, Mr Fisher sought recovery only for his own costs in this matter. Those amounted to 2½ hours covering the initial briefing, a consultation with the valuer, and appearance at the hearing. Mr Fisher notes that this represents more than $400 at the current rates at Crown Law, but Mr Fisher asked only to an amount of $400.
In exercising my discretion on costs, I am reminded that guidance is provided in respect of any costs of an adjournment under s.62 of the Valuation of Land Act 1944, or in respect of a determination of an appeal under s.70 of that Act. Where an appeal is struck out for want of prosecution, the matter of costs may then be determined at the discretion of the Court.
The discretion of the Court on costs is to be found in the new Land Court Act 2000, which was enacted on 1 July 2000, where s.34(1) states:
"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."
The awarding of costs against a party under s.34(3) may be made an Order of the Supreme Court and enforced in the Supreme Court.
The powers to award costs mirror similar powers enacted in the previous Land Act 1962, which has now been superseded by the Land Court Act 2000. In exercising my discretion, I note the decision of this Court in EFS (Holdings) Pty Ltd v. Valuer-General (1980-81) 7 QLCR 14, where the learned Member, later President, said at p.15:"The general power of this Court to award costs is to be found in section 42(9) of the Land Act 1962-1978. The Court has a discretion in the matter. This discretion must be exercised judicially by having regard to relevant considerations. In this matter, the appellant company has not seen fit to advise the Court nor the Valuer-General of any intention not to proceed. There has been adequate time for this action to have been taken between the date of the notice of hearing and the date set down for such hearing. The Valuer-General has been put to expenditure in the matter and I propose to exercise my discretion and make an order for costs as sought. "
The circumstances of that matter closely parallel the current matter. I believe judicial consideration of the facts of this matter supports a similar conclusion. The respondent has been put to considerable disadvantage in preparing for the hearing, and has a right to seek reimbursement of those costs. That the claim from Mr Fisher only represents $400, in my opinion, reflects a very reasonable and conservative approach to seeking redress in this matter. Apparently the respondent has agreed to cover the costs of its own staff in preparing for the hearing.
I direct that the appellants pay the costs of the respondent thrown away to an amount of Four Hundred Dollars ($400) accordingly.
NG DIVETT
MEMBER OF THE LAND COURT
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