Parkside Development Pty Ltd v Director-General, Department of Transport

[1998] QLC 15

[1998] QLC 15

 

  LAND COURT

BRISBANE

11 February 1998

Re:                 Determination of Compensation -
  Resumption for Future Road Requirement purposes -
  (Ref A96-24).

Parkside Development Pty Ltd
  v.
  Director-General, Department of Transport
  (now Department of Main Roads)

RE:  APPLICATION FOR COSTS.

Consequent upon delivery of judgment in the above matter, the respondent Director-General, Department of Transport, has made an application for its costs of and incidental to the hearing and determination of compensation.
Section 27 of the Acquisition of Land Act 1967 conveys jurisdiction to this Court in respect of a decision upon an application for costs in cases of this nature. Insofar as it is relevant, the section reads:

"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.  "

The original claim for compensation as filed in this Court on 3 June 1996, was in the sum of $1,958,775 and which was made up as follows:

Land  $  770,920.00
  Improvements   Nil
  Disturbance  $   20,800.00
  Injurious Affection  $1,167,055.00

TOTAL CLAIM  $1,958,775.00

At the commencement of the hearing of the matter the claim was amended to $1,473,742.69 made up as follows:

Land, Injurious Affection &
   Severance  $1,263,000.00
  Disturbance  $  210,742.69

TOTAL CLAIM  $1,473,742.69

During proceedings, the claim for disturbance was further amended to $213,839.69.
           The amount of the valuation finally put in evidence by the respondent Director-General, Department of Transport, was $535,000 for loss of land, and there was understandingly no assessment of compensation made by him for disturbance, although there were certain items within the disturbance claim with which the respondent agreed.
They were for survey fees for Stage 5 ($8,210) and for valuation and legal fees involved in the preparation of the claim ($11,000).  Further, one item of the disturbance claim (town planning fees in the sum of $1,500) was abandoned by the claimant during proceedings.
           The determination by the Court was:
           (a)       Compensation for loss of land & injurious affection  $  757,000.00
           (b)       Compensation for disturbance  $   74,852.69
  TOTAL AWARD OF COMPENSATION  $  831,852.69

Now it is clear that if the Court decides to use its discretion and make an Order for Costs, then in accordance with Section 27(2) of the Acquisition of Land Act, a Costs Order should be made in favour of the respondent Director-General since the amount of compensation determined for loss of land and injurious affection is closer to the amount of the valuation finally put in evidence than to the amount claimed in the proceedings, and the amount of compensation determined for disturbance is closer to the amount agreed upon by the respondent than to the amount claimed.
           Both parties placed written submissions before the Court with the claimant Company resisting the cost application.  Many authorities have been cited and I have read the extracted material.  But in the end, I must say I am most influenced by the remarks of the Land Appeal Court in Re: Moyses & Ors v. Townsville City Council (1979) 6 QLCR 271 where at p. 274 that Court said:

"First, we do not think that the presence of sub-section (2) of Section 27 in 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. "

Now, I cannot find in this case that the conduct of the claimant was such as to force the resuming authority unreasonably and unnecessarily into litigation.  True it is that my determination of compensation reflects that the claim was excessive, possibly even exorbitant.  But the claimant during the proceedings did not pursue a "vexatious, dishonest or grossly exaggerated claim or present its case in such a way as to impose unnecessary burdens on the respondent or the Court" (vide Banno & Another v. Commonwealth of Australia (1993) 81 L.G.E.R.A. 34 p.53). The claimant conducted a well-presented case in support of all items of the claim for compensation (except for the abandoned claim for town planning fees) notwithstanding that it was not successful in many aspects of its claim. But it was successful in obtaining compensation considerably above the "valuation finally placed in evidence by the respondent" for the loss of land, and also considerably above the items of claim for disturbance with which the respondent agreed (in the sum of $19,210). Further the quantum of compensation awarded is such as to suggest that it may well not have been an achievable outcome by negotiation without recourse to litigation.
In the circumstances, in the exercise of my discretion in accordance with the provisions of Section 27(1) of the Acquisition of Land Act, I make no order as to costs.

(CH Carter)       
  Member of the Land Court