Philip Usher Constructions Pty Ltd v Cross River Rail Delivery Authority (No 2)

[2025] QLC 24

LAND COURT OF QUEENSLAND

CITATION:

Philip Usher Constructions Pty Ltd v Cross River Rail Delivery Authority & Anor (No 2) [2025] QLC 24

PARTIES:

Philip Usher Constructions Pty Ltd
ACN 001 008 101

(applicant)

v

Cross River Rail Delivery Authority 

(first respondent)

D&S Ring Family Pty Ltd ATF Dinger Family Trust

(second respondent)

FILE NO:

AQL019-25

PROCEEDING:

Application for costs

DELIVERED ON:

19 September 2025

DELIVERED AT:

Brisbane

HEARD ON:

Written submissions closed 5 September 2025

HEARD AT:

On the papers

PRESIDENT:

PG Stilgoe OAM

ORDER:

Philip Usher Constructions Pty Ltd is to pay the Cross River Rail Delivery Authority’s costs of, and incidental to the application, as agreed or assessed on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – where the Court previously held that the applicant did not have a right to claim compensation in compensation proceedings – where both parties claim they were successful in that proceeding – whether the applicant was substantially successful at trial – whether there are discretionary factors that warrant a different order than that costs should follow the event

Acquisition of Land Act 1967

APPEARANCES:

DR Gore KC and DA Quayle (instructed by Anderssen Lawyers) for the applicant

RJ Anderson KC and JS Brien (instructed by Ashurst) for the first respondent

1. On 15 August 2025, I determined that Philip Usher Constructions (PUC) did not have a right to claim compensation in its own right because of the compulsory acquisition of land owned by a third party at the time of acquisition.[1]

   [1]Philip Usher Constructions Pty Ltd v Cross River Rail Delivery Authority & Anor [2025] QLC 18.

2. Both parties now claim their costs of the proceeding because they both say that they were substantially successful. Obviously, only one of them is correct.

3. If PUC was simply seeking an order that it ‘took up’ the rights of Ring, and the Authority resisted that approach, then I agree that PUC was wholly successful in the proceeding.

4. The Authority conceded that PUC was entitled to an assignment of the fruits of Ring’s right to compensation.[2] That concession is reflected in the terms of paragraph 1 of my decision.

   [2]Transcript 1-25, 30 – 33.

5. The Authority conceded that PUC was entitled to an assignment of the fruits of Ring’s right to compensation.[3] That concession is reflected in the terms of paragraph 1 of my decision.

   [3]Transcript 1-25, 30 – 33.

6. That was not, however, the thrust of PUC’s argument. Although PUC submitted that all it was seeking was an assignment of Ring’s rights, in fact it argued that the deed of assignment created a separate interest in land that was capable of supporting a claim or compensation. Although never specifically stated, and only tangentially referred to in the material:

   (a)PUC's claim was always based on what it could do with the resumed land, not what Ring may have proposed.[4]

   (b)PUC’s claim for compensation was in its own right and not tied to any right Ring had.[5]

   (c)PUC was aware of the competing interpretation of the Acquisition of Land Act,[6] which I ultimately accepted, but persisted in its claim.

   [4]Affidavit of Phillip Alan Usher affirmed on 7 February 2025, 113.

   [5]Ibid 134 – 135.

   [6]Ibid 138 – 139.

7. PUC was not successful – it did not get the result it wanted. That fact alone favours an order for PUC to pay the Authority’s costs. As the Authority has submitted and I accept, there are no discretionary factors that warrant a different order.

Order

Philip Usher Constructions Pty Ltd is to pay the Cross River Rail Delivery Authority’s costs of, and incidental to the application, as agreed or assessed on the standard basis.