Pavlis v Council of the City of Gold Coast

[1992] QLC 32

[1992] QLC 32

 

 

LAND COURT,

BRISBANE.

13th August, 1992.

Re:     Determination of Compensation -
  Resumption for Park Purposes -
  A91-76.

NG Pavlis

v.

Council of the City of Gold Coast

DECISION ON APPLICATION FOR COSTS

Following delivery of judgment in the above matter, Counsel for the respondent Council of the City of Gold Coast made application for an award of costs in its favour. The relevant provisions within the Acquisition of Land Act of 1967 in so far as the Court's power to award costs is concerned are Subsections 1 and 2 of Section 27 which read -

"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."

Now the original claim for compensation in this matter was in the sum of $1,500,000.  This was amended by leave of the Court to $555,505.  The amount of the valuation finally put in evidence by the respondent Council was $380,000.  The award of compensation was in the sum of $440,000.
It is to be immediately observed that, in accordance with the provisions of sub-section 2 of Section of 27 of the Acquisition of Land Act, costs, if any, can only be awarded to the respondent Council of the City of Gold Coast.
           In Re: Moyes and Ors v. Townsville City Council (1979) 6 QLCR 271 at p 274, the Land Appeal Court had this to say when considering an application for costs:-

"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 had made one, has been such as to force the authority, unreasonably and unnecessarily, into litigation."

Counsel for the respondent submitted that in an ordinary case where an award of compensation is some $60,000 more than the respondent Council's valuation of $380,000, the amount of the increase over the valuation would be so substantial that no order of costs could be expected in favour of Council although it would have the right to apply for costs.  However, he suggests there are further relevant factors which should be taken into account which, it is submitted, are such that an award of costs should made in favour of the respondent Council.  On 30th November, 1992, an advance against compensation in the sum of $248,411.19 was paid to the claimant. On 26th June, 1991 the respondent Council by way of open letter offered total compensation of $440,000 plus reasonable legal and valuation fees and interest on a sum of $190,000 at the rate 11.5% from resumption date to settlement date.  On 20th July, 1991 by open letter the respondent Council amended the offer it had made on 26th June, 1991 and offered an additional payment of $220,000 over the sum of $248,411.19 which was paid by way of advance which would have brought the total payout with interest, and allowing for adjustments of rates and rent etc to $468,411.19, calculated to 15th July, 1991.  In the end it seems that the Council simply made a total offer of $470,000 as at 15th July, 1991.  The Court is advised that the offer made to settle the matter remained open at all times to the date of commencement of the hearing.  Counsel further submits on behalf of the respondent that the quantum of the Court's award with interest, if the related back to the date of the respondent Council's offer on 15th June, 1991 would result in increasing the Court's award of $442,500 to a sum of $468,847 inclusive of interest.
           It is submitted on behalf of the respondent that in the light of the Court's award in the matter, the offer made by Council was a reasonable one which should have been accepted by the claimant and the failure on his behalf to so do forced the respondent to outlay considerable costs to achieve the same result following the litigation of the matter.  It is further submitted that the actions of the respondent Council were reasonable and that the exorbitant nature of the claim forced the Council unreasonably and unnecessarily into litigation.  As a result, it is contended that this is a proper case for an award of costs to be made in favour of the respondent Council.
           Counsel for the claimant urges the Court to find that no order should be made in respect of costs.  He submits that the assessment of compensation proved to be an unusual and difficult matter and that the claimant was entitled to come to Court to have his claim considered.  I certainly agree that the assessment of compensation proved to involve a difficult valuation exercise, and it is perhaps noteworthy that the claimant's valuer understandably placed great emphasis when preparing his valuation upon the sale of a nearby and comparable parcel of land.  This sale was rejected by the Court as a valuation basis for the reasons set out in the judgment.  In addition, Counsel for the claimant pointed out that the claimant succeeded in gaining an award of compensation for a house and its appurtenant land at a greater sum than that assessed by the respondent's valuer. 
           The claim for compensation filed in the Court registry remained in the sum originally claimed at $1,500,000.  It was only after the hearing commenced that it was amended downwards to $555,505.  It was open of course for the claimant to amend his claim well prior to the hearing.  No acceptable response was made by the claimant to the Council's offer to settle by way of letter dated 20th July, 1991.  The hearing of the case commenced on 16th March, 1992 and it is submitted by the respondent that the offer of the additional compensation remained open for the Claimants' acceptance.
           It cannot be said the amended claim for compensation was exorbitant.  However, it must also be said that the original claim was certainly exorbitant, and was such as to force the authority into litigation to resolve the matter.
           As a result then, I think this is a case where the respondent Council is entitled to an award of costs in its favour.  In the exercise of my discretion , I order that the claimant pay the respondent Council of the City of Gold Coast's costs of and incidental to the action,  and I further order that the amount of such costs shall be ascertained and fixed by the Taxing Officer of the Supreme Court at Brisbane according to the scale of costs prescribed by law for the time being in respect of proceedings in the Supreme Court and in accordance with the provisions of Section 41(9) of the Land Act 1962.

(C.H. Carter)      
  Member of the Land Court.