Nadco Pty Ltd v State of Queensland

[1999] QCA 142

[1999] QCA 142

COURT OF APPEAL

McMURDO P
PINCUS JA
ATKINSON J

Appeal No 3110 of 1998

NADCO PTY LTD  (Defendant)/Appellant
ACN 010 910 264

v

STATE OF QUEENSLAND (THE CHIEF
EXECUTIVE DEPARTMENT OF TRANSPORT)  (Plaintiff)/Respondent

BRISBANE

DATE 23/04/99

JUDGMENT

PINCUS JA:  An appeal is brought to this Court from a judgment of the Land Appeal Court, given on 23 February 1998, in respect of a matter of costs.  The appellant, Nadco Proprietary Limited, made a claim under the Acquisition of Land Act 1967, for compensation in respect of an acquisition of land, which acquisition was effected by agreement.

The Land Court assessed compensation and made an order for costs in favour of the appellant.  The Land Appeal Court, on the appeal to it, took away from the appellant the benefit of that order for costs, adopting the view that the Land Court had erroneously exercised its discretion.  The appeal to this Court was instituted on 6 April 1998 and there has been a number of written submissions and counter submissions made.

It emerges, however, from a written submission made very late, on the part of the respondent, that the essential point in the case is a short one.  Under the provisions of the Acquisition of Land Act, section 27(1), the costs of and incidental to the hearing and determination by the Land Court of a claim for compensation are in the discretion of that Court, but that is subject to that section, which includes section 27(2), reading as follows:

"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 complainant, otherwise costs (if any) shall be awarded to the constructing authority."

The argument which is advanced by Mr Gibson QC on behalf of the respondent is in essence that section 27(2) precluded the making of such an order in favour of the appellant as was made by the Land Court, that is an order for costs in its favour. Mr Gibson said that if the figures are analysed, it is clear that within the meaning of section 27(2) the amount of compensation as determined was closer to the amount of the valuation put forward by the constructing authority than to the amount finally claimed by the claimant.

We have the benefit of the submission filed yesterday on behalf of the respondent, which sets out the relevant figures and so far as material, they are as follows:

Amount of compensation as determined by the Land Court:  $718,611.

Amount finally claimed by the claimant in the proceedings:  $962,280.44.

Amount of the valuation finally put in evidence by the constructing authority:  $492,075.

Mr Ward, who appears for the appellant, does not accept the correctness of these figures, his criticism being that the figure of $962,280.44 which I have mentioned is overstated by a sum of $61,705.44.  That sum is a claim which related to interest said to be due to or properly claimable by the so appellant in respect of the period from 1 October 1993 to 13 May 1994; that this is so appears from the claim which appears at page 17 and the following pages of the record.

The argument advanced by Mr Gibson is that if one looks simply at the figures which I have mentioned, then the operation of section 27(2) precludes the award made. What we are concerned with is whether it was possible, legally, in view of the restrictions in section 27(2), for the Land Court to order costs in favour of the claimant, that is, in favour of the appellant.

The only argument which is put forward by Mr Ward against the conclusion for which Mr Gibson contends is that the figure of $61,705.44 is, as I think he put it, a claim outside the Act.  It was drawn to our attention that under section 20(1) of the Act, in assessing the amount of compensation to be paid, regard is to be had to the value of the land and also to damage from severance and damage caused by the exercise of any statutory powers by the constructing authority; it is true that one finds there no mention of interest for such period as that which is said to found the claim for $61,705.44.

A reference to interest in the Act being awarded in favour of the claimant is to be found in section 28 which, as Mr Gibson points out, relates only to interest from the date of the resumption, which in this case was 13 May 1994.  It is therefore true, as Mr Ward argues, that there is absolutely no provision in the Act for claiming interest for a period prior to the date of the proclamation, in this case 13 May 1994, and it appears to be conceded that the claim was not sustainable.

Mr Gibson argues that in certain circumstances under the practice of the Land Court, and despite the absence of any provision in section 20 for this to be done, the Land Court could and would order interest for periods prior to the date of proclamation.  It is, however, unnecessary for me to say anything about that, for it is common ground that the claim for interest, $61,705.44, was not a sustainable claim.  The appellant has, however, raised the question that there was an agreement, as Mr Ward said, outside the Act and said to be evidenced by correspondence which we were shown, that this amount would be paid.  It is enough to say that we are not concerned with whether such an agreement was made or not.  It appears that no such amount was paid, and it is perfectly clear that no such amount as the $61,705.44 was included in the figure of $718,611 which was finally awarded.

In summary, then, the disposition of the appeal depends essentially on the question whether it is correct, as Mr Ward said, that if one makes a claim which is quite outside the Act and therefore unsustainable, and includes that in the compensation claim, that particular figure is to be ignored in applying the provisions of section 27(2). In my opinion Mr Ward's argument must be rejected. It seems to me clear, beyond serious argument, that an item included in a claim for compensation which is simply unclaimable under the Act cannot possibly affect the operation of section 27(2).

Another question which was argued both by Mr Ward and Mr Gibson was whether or not there was an error by the Land so Appeal Court in the exercise of its appellate jurisdiction - that is, leaving the section 27(2) point which I have dealt with aside. It does not appear to me to be necessary to say anything about that argument except to mention that it appears essentially to depend upon the proposition that the Land Appeal Court misapprehended the facts; it might be a question whether or not such a ground of appeal is covered by section 45 of the Land Act 1962, mentioned in section 26(2)(a) of the Acquisition of Land Act 1967. I do not find it necessary to reach a conclusion on that point, that is, whether the non­section 27(2) argument was available in this appeal.

The conclusion which I have reached is that the argument advanced by Mr Gibson must be accepted. It is correct, as he says, that section 27(2) required in its terms that any award of costs made be in favour of the constructing authority, and made it impossible to make an order in favour of the claimant. No order was made in favour of the constructing authority, but no complaint is made about that; it is plain that section 27(2) requires that the appeal be dismissed.

The other question which was raised by the parties was what should happen to the costs of the appeal in this Court.  In favour of granting costs to the appellant, there is the fact that the point on which the respondent relies was made very late.  On the other hand, it appears to me that it was simply overlooked by both sides.  If it had occurred to either counsel when the case was being considered at lower levels it would surely have been drawn to the attention of the Court.

Mr Gibson has made the suggestion that the proper order for costs would be that the appeal should be dismissed with no order as to costs in this Court, and that is the order which I favour.

THE PRESIDENT: I agree with the order proposed by Mr Justice Pincus and with his reasons. I will only add the following observations. The amount finally claimed by the claimant included a claim for interest prior to 13 May 1995, the date of the gazettal of the resumption. This amount, though not claimable under the Act, was nevertheless part of the "amount finally claimed by the claimant" under section 27(2) Acquisition of Land Act 1967. This approach is consistent with the plain meaning of those words and with the observations of Mr Justice McPherson in Commissioner for Railways v. Buckler [1996] 1 Qd R 18 at 23, "In the case of the claimant, it is the quantum of compensation last claimed." I agree with the conclusion of Mr Justice Pincus in this respect.

ATKINSON J: I agree with the reasons given both by the President and by Mr Justice Pincus except to add that if this matter had been drawn to the attention of the Land Appeal Court then the Land Appeal Court could either have determined that costs should have been awarded in favour of the constructing authority under section 27(2) or exercised the discretion given under section 27(1) to make no order as to costs. I agree with the orders proposed.

PINCUS JA:  Could I add that I agree with the observation which has just fallen from Justice Atkinson.

THE PRESIDENT:  As do I.  The orders are: the appeal is dismissed; there is no order as to costs.

MR GIBSON:  One further matter of a procedural nature perhaps, Your Honours.  Pursuant to the costs order made by the Member at first instance, we have paid an amount of, I think, about $34,000, I understand, by way of costs to the appellant and taxation proceedings were compromised at that figure part completed.  It would be appropriate, I would submit, for the Court to also order that the appellant pay to the respondent the amount of the costs paid to the appellant pursuant to the order of the Land Court dated 18 July 1997 together with the respondent's costs of the taxation.

THE PRESIDENT:  Could you slow down a bit?

MR GIBSON:  I'm sorry, Your Honour, yes.  That the appellant pay to the respondent the amount of the cost paid to the appellant pursuant to the order of the Land Court dated 18 July 1997 together with the respondent's costs of the taxation of the appellant's costs claimed pursuant to that order.

ATKINSON J:  The taxation was resolved by agreement.  The Taxing Officer therefore made no order one way or the other.  The taxation itself was brought about in consequence of the appellant's insistence on its right to be paid its costs pursuant to the Member's order.  There was no application for a stay made to the-----

PINCUS JA:  Why didn't you get these orders in the Land Appeal Court?

MR GIBSON:  I can't assist Your Honour in that regard.

PINCUS JA:  Well, you would have had to cross-appeal, wouldn't you?

ATKINSON J:  Or you could have made an application for a stay.

MR GIBSON:  We could have-----

PINCUS JA:  If you weren't satisfied with the orders in the Land Appeal Court which had the task of reviewing the Land Court's orders.

MR GIBSON:  No.  Well, the Land Appeal Court ordered-----

PINCUS JA:  The Land Appeal Court was the Court which interfered with the Land Court's costs order and they were the people who had to deal with any consequential matters.  Our only jurisdiction, as I tried to point out earlier, is to hear appeals on errors of law.

MR GIBSON:  Yes.

PINCUS JA:  There's no error of law.  I don't see in dismissing the appeal that we can add a few bits for you.  Where is our jurisdiction to do that?

MR GIBSON:  Well, I hadn't - except perhaps for the taxation aspect.  The first element of the order, Your Honour, I would respectfully submit is not a controversial one.  It merely clarifies the position that the appellant is now obliged to repay the amount of the costs-----

PINCUS JA:  But they're obliged to be paid-----

MR GIBSON:  In any event or in consequence of the dismissal of the appeal.

PINCUS JA:  Yes.  No, no, they were obliged to repay at the Land Appeal Court stage, weren't they?

MR GIBSON:  They were, they were but again there was, we'd submit, there was no application made for a stay and there were good reasons for that.  There was no basis on which we could sustain a stay and so-----

PINCUS JA:  No, but I just wonder whether - I suppose if Mr Ward doesn't object, there's no objection to our ordering the money be repaid but I don't see why we should get into the question of costs of the taxation.  I doubt our jurisdiction to do that.

MR GIBSON:  Very well, I won't press that, Your Honour.

THE PRESIDENT:  Are you asking for any order?

MR WARD:  I have no instructions on this-----

THE PRESIDENT:  Just a minute please.  Are you asking for any order, Mr Gibson?  I mean, the Land Appeal Court order that the order for costs made by the Member is rescinded.

MR GIBSON:  Yes.  I know that it does speak for itself.  There's been some background to these appeals and it would assist to remove any doubt if the first of the further orders or the first element of the further order to which I've referred were made.  I accept that it strictly adds nothing to our rights in consequence of the dismissal of the appeal.

THE PRESIDENT:  It will make things practically easier for you.  Thank you.  Yes, Mr Ward.

MR WARD:  I was only going to say that I have no instructions upon this area at all at this point in time and I would have to seek instructions from my client as to anything that he wishes to add to that.

PINCUS JA:  You don't have a solicitor with you to give you instructions.

MR WARD:  Yes.

PINCUS JA:  Why can't you get some instructions from your solicitor?

MR WARD:  I can do that now, that is, I fully intended to do that.

THE PRESIDENT:  Yes, Mr Ward.

MR WARD:  My instructions are that we do not object to the making of that order on the proviso that it can be extended to a 60 day payment period.

PINCUS JA:  Which order are you referring to, the order for repayment of the costs.

MR WARD:  The order for repayment of costs.

PINCUS JA:  What about the taxation cost?

MR WARD:  No objection to that.  We agree to it that on the basis that repayment be over a period of 60 days.

PINCUS JA:  Now, your opponent has got to get some instructions.

MR GIBSON:  If the Court requires an undertaking not to enforce that order for 60 days, I have instructions to offer it.

THE PRESIDENT:  As to taxation, I understand, Mr Gibson, you are not pursuing that order?

MR WARD:  Could I just have a moment to confer?

MR GIBSON:  We won't press the second aspect of it, the taxation aspect.

THE PRESIDENT:  I understood that you had said that in any case.

MR GIBSON:  Yes.

THE PRESIDENT:  Yes, thank you.

THE PRESIDENT:  I further order the appellant pay to the respondent the amount of costs paid to the appellant pursuant to the order of the Land Court of the 18 July 1997.