Pickering Nominees Pty Ltd v The Commissioner of Main Roads

[1990] QLC 22

[1990] QLC 22

 

  LAND COURT,

BRISBANE.

10th August, 1990.

Re:      Determination of Compensation -
  Resumption for Road purposes
  A89-7

Pickering Nominees Pty Ltd
  v.
  The Commissioner of Main Roads

APPLICATION FOR COSTS

Consequent upon delivery of judgment in the above matter, the Crown Solicitor on behalf of the respondent Commissioner of Main Roads, in a written submission dated 8th June, 1990, made application for an Order that the claimant Pickering Nominees Pty Ltd pay the respondent's costs of and incidental to the hearing of the matter.
  The principal basis of the application is that there was a wide discrepancy between the amount of compensation awarded by the Court ($37,650 plus interest) and the amount of compensation finally claimed by the claimant company ($53,750).  The respondent's assessment of compensation was $26,500 plus reasonable legal and valuation fees (agreed in the sum of $2,150).  Further, the respondent points out that the valuation prepared for him was favoured by the Court as being more soundly based than that prepared by the claimant's valuer.  In addition, the respondent Commissioner is of the view that the quantum of the claim was such that the resuming authority had no option but to litigate the matter, especially as the conduct of the claimant in making a claim which was exorbitant forced the authority unreasonably and unnecessarily into litigation - vide Moyses and Morris and Ors v. The Council of the City of Townsville (1979) 6 Q.L.C.R. 271.
  By letter dated 26th June, 1990, Messrs Hawthorn Cuppaidge and Badgery, Solicitors for the claimant company responded to the application by submitting that this is not an appropriate case in which an adverse cost order should be made against the claimant.  In their submission, the solicitors also referred to the judgment of the Land Appeal Court in re: Moyses and Morris and Ors v. The Council of the City of Townsville, (supra), and quoted the following relevant passage:-

"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."

The claimant company contends that the claims were not exorbitant, that they were no claims for heads of compensation which were not sustainable in law, and that the award of compensation for the land ($22,500) was substantially in excess of the value placed upon it in evidence by the construction authority ($13,500).  It is to be noted that the construction authority added to this valuation a sum of $13,000 under the head of injurious affection. 
Section 27 of the Acquisition of Land Act 1967 - 1988 reads:-

"Costs.(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.

In many ways the assessment of compensation in the matter included consideration of difficult valuation procedures as is usually the case where partial resumptions are involved.  Whilst the claim for compensation (as amended)  was found by the Court to have been exorbitant, I cannot hold that it was entirely capricious or vexatious.
There is no doubt that if the Court exercises its discretion to award costs, then in accordance with the provisions of Section 27 of the Land Act they can only be awarded in favour of the respondent Commissioner, but the claimant company succeeded in increasing its entitlement for compensation by litigating the matter. In all the circumstances, in view of the submissions made, and in the exercise of my discretion I make no order as to costs.

(C.H. Carter)   

Member of the Land Court.