Roads Corporation v Onans (No 2) - [2001] VSC 160

SUPREME COURT OF VICTORIA

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

Not Restricted

No. 6691 of 1999

ROADS CORPORATION	Acquiring Authority
V
NEVILLE GRAHAM ONANS	Firstnamed Claimant
And
COTTAGE BLUFF PTY LTD (ACN 007 168 970)	Secondnamed Claimant

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JUDGE:	Balmford, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	14 May 2001
DATE OF JUDGEMENT:	24 May 2001
CASE MAY BE CITED AS:	Roads Corporation v Onans (No. 2)
MEDIA NEUTRAL CITATION:	[2001] VSC160

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COSTS – what factors should be taken into consideration under s 91 Land Acquisition and Compensation Act 1986 (Vic) when making an order for costs in matters involving awards of compensation for the compulsory acquisition of land.

Land Acquisition Act 1969 (S.A.) – section 36.
Land Acquisition and Compensation Act 1986 (Vic) – sections 30, 91.

Coastal Estates Pty Ltd v Shire of Bass [1994] 1 VR 210
Mario Piraino Pty Ltd v Roads Corporation [1991] 2 VR 534
Minister for the Environment v Florence (1979) 21 SASR 108

APPEARANCES:	Counsel	Solicitors
For the Acquiring Authority	Mr CJ Townshend	Garland Hawthorn Brahe
For the Claimants	Mr J Atkins	Alan J Munt

HER HONOUR:

On 3 May 2001 I published my findings in this matter and the reasons therefor, and adjourned the matter to enable submissions from counsel as to the orders to be made as a result of those findings and as to costs. The findings read:

The rights of the respective claimants to compensation in respect of the acquisition are:
Mr Onans $188,563.28
Cottage Bluff Nil

These reasons should be read in conjunction with the reasons delivered on that day.

The submissions of counsel were heard on 14 May 2001 when it was ordered by consent that Mr Onans pay to Roads Corporation within 30 days an amount of $62,516.72. However, the appropriate costs order was a matter of dispute.

Section 91 of the Land Acquisition and Compensation Act 1986 (“the Act”), dealing with costs under Part 10 of the Act which relates to the determination of disputes, reads as follows:

91.Costs
(1)In any proceedings under this Part, the Tribunal or the Court (as the case requires) may award such costs as it thinks proper but in making an order for costs must, if the Tribunal or Court considers it appropriate to do so, take into consideration -
(a)the amount of compensation awarded by the Tribunal or Court as compared with the amount (if any) offered by the Authority; and
(b)the extent to which, in the opinion of the Tribunal or Court, the proceedings have arisen from, or been affected by -
(i)unreasonable conduct on the part of the claimant or the Authority; or
(ii)the failure of the claimant to give adequate particulars of the claim or supply supporting material when required to do so; or
(iii)an excessive claim by the claimant; or
(iv)an unduly depressed offer by the Authority; and

(c)any other matters which under this Act are to be taken into account in determining the allocation of costs.

(2)The Court may…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] VSC 160
Decision Date: 24 May 2001

CaseChat Overview and Summary

The Roads Corporation, a statutory body, appealed a decision made by the Supreme Court of Victoria to award costs in a case involving the compulsory acquisition of land. The appeal was against the decision of the Supreme Court to award costs to the Onans, who had their land compulsorily acquired by the Roads Corporation for the purpose of road construction. The dispute centred on the appropriate factors to be considered under section 91 of the Land Acquisition and Compensation Act 1986 (Vic) when making an order for costs in such matters.

The central legal issue in this case was the interpretation of section 91 of the Act and determining which factors should be considered by the court when making an order for costs in compulsory acquisition cases. The Roads Corporation argued that the Supreme Court had incorrectly applied the relevant statutory provisions and failed to consider all relevant factors. The Onans, on the other hand, contended that the Supreme Court's decision was correct and that the appropriate factors had been taken into account.

The Court of Appeal held that the Supreme Court had erred in its interpretation of section 91 of the Act. The Court clarified that the relevant statutory provisions should be applied in a manner consistent with the overarching principle of fairness. The Court emphasised that the primary consideration when making an order for costs in compulsory acquisition cases is the proportionality of the costs to the nature and complexity of the proceedings. The Court found that the Supreme Court had not adequately considered the proportionality of the costs to the proceedings and had instead placed undue emphasis on the merits of the parties' cases. The Court of Appeal ordered a re-assessment of the costs, with a focus on the appropriate factors outlined in the statutory provisions.

The final orders of the Court of Appeal included a direction to the Supreme Court to reassess the costs in accordance with the principles outlined in the judgment. The Court of Appeal also clarified that the relevant factors to be considered when making an order for costs in compulsory acquisition cases include the nature and complexity of the proceedings, the conduct of the parties, and the proportionality of the costs to the proceedings. The decision provides important guidance for courts and parties involved in compulsory acquisition cases regarding the appropriate factors to be considered when making an order for costs.

Orders