Pejama Pty Ltd v The Commissioner of Main Roads

[1989] QLC 4

[1989] QLC 4

 

  LAND COURT,

BRISBANE
  9th June, 1989

Re:   Pejama Pty. Ltd.

v.  
  The Commissioner of Main Roads

DECISION ON APPLICATIONS FOR INTEREST AND COSTS  

Compensation has been determined in the sum of $83,200.  An advance in the sum of $60,000 was made by the respondent on 4th January, 1989.  The claimant seeks interest on compensation from the date the land was acquired to the date of settlement.  The respondent submits that interest should not be paid on compensation for the period between the date when the matter was first set down for hearing - 12th December, 1988 - and the date the matter was finally heard - 8th May, 1989 - this being the period taken up by the adjournments.
           Under Section 28 of the Act, the Court has a general discretion to award interest.  In the exercise of that discretion, the Court may order that interest be paid on the whole or any part of the award for the whole or any part of the period between the date of the resumption and the date compensation is finally paid.  The exercise of the discretion is dependant upon the facts and circumstances of each particular case.  The only matter agitated here is whether interest should be stayed during the period of the adjournments.  It is the submission of the respondent that with reasonable diligence the claimant could have been prepared to proceed to a hearing of the matter on the date the matter was first set down for hearing and that in the circumstances it would be placing an unreasonable burden on the respondent to order that interest be paid over the period.  The adjournments were granted at the request of the claimant.  The reasons therefor have been covered in the judgment - so too has been the evidence dealing with the opportunity of the claimant to assess compensation according to correct principles and when those opportunities became available.  In the circumstances I accept the submission of the respondent.  Interest, however, will be awarded at a rate comparable with returns from guilt edged security over the relevant period and not on the basis of borrowing rates as is sought by the claimant.
           Accordingly, I order that interest at the rate of 12.75 percentum (12.75%) per annum be paid on the sum of $83,200 from the date of resumption up to and including 11th December, 1988, and that interest at the same rate be paid on the sum of $23,200 from and including 8th May, 1989, up to and including the day immediately preceding the date of payment of that sum. 
           I come now to the matter of costs of the adjournment granted on 21st February, 1989, and costs of the action.  It was not in dispute that any injustice caused to the respondent through the adjournment could be compensated for by an order for costs.  Counsel for the respondent sought costs occasioned by or thrown away as a consequence of the adjournment on an indemnity basis.  Counsel for the claimant opposed the application on grounds that costs should be assessed on a party and party basis.  The discretion invested in the Court to make an order for costs of an adjournment is contained in Section 41(9) of the Land Act 1962-1988 and the Court may order that such costs be taxed.  I have considered the issues and the submissions of Counsel and have concluded that an order for costs on a party and party basis would not be unreasonable in the circumstances of the case.
           In considering the application by the respondent for costs of and incidental to the hearing and determination of the claim, I have had regard to the matters discussed in the judgment.  The Court has found that the claimant has assessed compensation on incorrect principles.  The respondent has been wholly successful and is deserving of costs of the action. 
           Accordingly I make the following orders.  In the exercise of the Court's discretionary powers, it is ordered -

(a)that the claimant pay the respondent's costs occasioned by or thrown away as a consequence of the adjournment granted on 21st February, 1989; and

(b)that the claimant pay the respondent's costs of and incidental to the hearing and determination of the claim;

the amounts of such costs shall be ascertained and fixed by the costs 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 1962-1988.

Member of the Land Court