Nevis Pty Ltd, Australian Self Storage Pty Ltd, Australian Self Storage Pty Ltd as Trustee for the Australian Self Storage Superannuation Fund and Body Corporate for 4032 Pacific Highway CTS 22755 v Chief...

[2002] QLC 18

LAND COURT

BRISBANE

6 March 2002

Re:	Appeal for compensation
Acquisition of Land Act
(A2000-0005)

Nevis Pty Ltd, Australian Self Storage Pty Ltd,
Australian Self Storage Pty Ltd as trustee
for the Australian Self Storage Superannuation Fund
and Body Corporate for 4032 Pacific Highway CTS 22755
v.

Chief Executive, Department of Main Roads

DECISION ON COSTS

(1) The substantive claims in this matter were brought under the Acquisition of Land Act 1967 for compensation for resumption of land owned by the claimants. The claims were heard by the President of the Court who determined compensation in the sum of $854,719 and made orders for payment of that sum and interest.

(2) The claimants subsequently made an application, pursuant to section 12 of the Land Court Act 2000 (the Act), for leave to have the matter reheard. I heard that application and by written judgment handed down on 10 December 2001, I refused the application.

(3) The respondent has applied for an order that the claimants pay the respondent’s costs of and incidental to the application for leave to have the matter reheard.

(4)

Section 34 of the Act provides, in part:

(1)	Subject to the provision 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) There is clear authority, in relation to the predecessor to s.34 of the Act, namely s.41(9) of the Land Act 1962, that the discretion given to the Court is full and unfettered. The Court cannot act in an arbitrary manner and must exercise the discretion judicially, that is for reasons that can be considered and justified (Townsville City Council v Moyses and Morris (1979) 6 QLCR 271 at 273, 274; Kabale Holdings Pty Ltd v Chief Executive, Department of Transport (1997) 18 QLCR 166 at 198). It is considered that there is no significant difference between s.41(9) of the Land Act 1962 and s.34(1) of the Act and that these authorities are applicable to the latter provision.

(6) There are various categories of cases where this Court has adopted particular practices as to the award of costs. For example, in revenue cases, the Land Appeal Court has said that easy access to the Court is most desirable and such access should be available without fear of costs being awarded to either party, except in special cases (WH Bowden v The Valuer General (1980-81) 7 QLCR 138 at 147; Valuer- General v Queensland Club (1991) 13 QLCR 207 at 222). A similar approach has been taken in rental matters (Crown v Magoffin (1991) 13 QLCR at 270, 271). In resumption matters, the courts have taken into account the fact that the claimant has no choice whether to make a claim or not. The acquisition by compulsory process gives the claimant a right to make a claim to compensation which he or she could hardly be expected to renounce (Yalgan Investments Pty Ltd v Council of the Shire of Albert (1997) 17 QLCR 401 at 407).

(7) The Court in Yalgan also pointed out that in general a party who is wholly

successful in litigation can expect an order for costs in her or his favour (at 407).
(8) The claimants have submitted that no order as to costs should be made,
leaving the parties to bear their own costs. This submission is supported by reference
to the Yalgan case where a claimant who had been partially successful in obtaining an
order for compensation in respect of a compulsory acquisition of land, sought an order
for costs. The Land Appeal Court awarded costs in favour of the claimant pursuant to
s.27(1) of the Acquisition of Land Act 1967. The Court said (at 408), in the course of
considering s.27, that

“Where the Land Court is considering whether it should award costs to a constructing 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. Usually it would be more relevant to enquire whether the conduct of the claimant (such as, for example, making an exorbitant claim) has been such as to force the authority, unreasonably and unnecessarily, into litigation or whether the claimant has pursued a vexatious, dishonest or grossly exaggerated claim or presented his case in such a way as to impose unnecessary burdens on the constructing authority or the Court.” [citations omitted]

(9) The claimants submit that their application for a rehearing was not unreasonable because, in the circumstances this was the cheapest, most efficient and suitable option for them to pursue, given that they were dissatisfied with aspects of the learned President’s decision. Nor was the claim vexatious, dishonest or grossly exaggerated.

(10) I accept that the claimants’ application was made on practical grounds and was not vexatious, dishonest or grossly exaggerated. However, I do not consider that the claimants’ motives and conduct are the only relevant consideration in determining the outcome of this application for costs. That part of the opinion of the Land Appeal Court in Yalgan set out above, was given in the course of deciding liability for costs in respect of a final determination of compensation and with reference to s.27 of the Acquisition of Land Act. In particular, the Court was considering the effect of s.27(2) of that Act which is concerned with the costs to be awarded by reference to the amount of compensation as determined. The Court was simply making a statement that, in the context of s.27(2), the claimants’ conduct was a more relevant consideration than the amounts of compensation claimed and awarded. The Court was not purporting to make a more general statement as to the way in which the discretion as to costs should be exercised. In particular, it was not dealing with liability for costs in respect of an application for leave to have a matter reheard.

(11) As this is not an application for costs in respect of a final determination of compensation, in my opinion s.27(2) does not apply and the Court has a full and unfettered discretion as to the award of costs in respect of the application for leave to have the matter reheard.

(12) The claimants also submitted that because the purpose of the application to have aspects of the matter reheard was to obtain a determination as to the nature and extent of compensation, the application was akin to a primary claim for compensation. Therefore, costs should not be awarded against the claimants. This submission is similar to that already considered. Essentially, it is a submission that the only reason costs can be awarded against the claimants is if their conduct is unmeritorious. There is nothing in the authorities to support such a broad proposition, and such an approach would, in my opinion, unduly fetter the discretion of the Court.

(13) The respondent was successful in resisting the claimants’ application for leave to reopen this matter. The fact that that application was made in the context of a claim for compensation for a compulsory acquisition of land does not of itself provide a sufficient reason for not awarding costs to the successful party. In my opinion there is no reason why the respondent should not be awarded its costs in respect of the application for a rehearing.

(14) I order that the claimants pay the costs of the respondent of and incidental to the application for leave to have the matter reheard. The amount of such costs shall be ascertained and fixed by the appropriate assessing officer of the Supreme Court.

CAC MACDONALD
MEMBER OF THE LAND COURT