Sabina Three Gorges Corporation Limited v Chief Executive, Department of Transport

[1997] QLC 182

[1997] QLC 182

 

LAND COURT

BRISBANE

21 NOVEMBER 1997

Re:     A96-01

Claimants Costs in the hearing and determination of compensation -

Acquisition of Land Act 1967

BETWEEN:

Sabina Three Gorges Corporation Limited
  (Receiver and Manager Appointed)
  Claimant

AND

Chief Executive, Department of Transport
  Respondent Constructing Authority

D E C I S I O N

In this matter the claim for compensation was in the total amount of $744,250.  The constructing authority's valuation was "nil".  Compensation was determined in the total amount of $419,400.

Section 27 of the Acquisition of Land Act relevantly provides:

“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 the 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."

The amount of compensation determined is nearer to the amount claimed by the claimant than to the amount of the valuation put in evidence by the constructing authority.  Costs, if any, shall be awarded to the claimant.

In the reasons for the determination of compensation, delivered on 24 October 1997, the question of costs was addressed.  The parties were informed that in the absence of persuasive argument from the respondent, it would be ordered that the claimant be paid its costs. 

A written submission relative to the question of costs was then received from the respondent within the time granted, as was a reply from the claimant.

The respondent conceded that the claimant "having regard to the award made by the Court, ought prima facie, be entitled to some of its costs associated with the hearing" although the award exceeded "the imaginary 'half-way' line by $47,275, less than 10% of the amount claimed".  It was submitted that the claim could only be described as exorbitant with one segment of the claim (injurious affection) having been totally unsuccessful.  It was submitted that the respondent's case, on the other hand, was based on its interpretation of the scheme underlying the resumption, which, whilst not accepted by the Court, was considered by the respondent to have been an argument "not without merit".  It was submitted that the resultant enhancement issue took up less than 50% of the hearing time, whilst the claimant's failed injurious affection claim occupied a not insignificant amount of the hearing time.  The situation was interpreted as being that the respective position of both parties was such as to have made litigation unavoidable.  Finally it was submitted that in the circumstances of the case, if a costs order was to be made, it should be limited to require the respondent to pay the claimant no more than 50% of the total costs associated with the hearing.

The claimant's response was that it had acted properly and responsibly in formulating and pursuing a claim which it had considered, on the facts known to it, to be reasonable.  While the claim for injurious affection had failed, that was seen to have resulted from evidence disclosed at the hearing and not before.

In considering the effect of s.27(2) of the Acquisition of Land Act, in Moyses and Ors v. Townsville City Council (1979) 6 QLCR 271 the land Appeal Court said at 274:

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

In this matter, the position of the parties in Moyses, is reversed, the question to be decided being whether costs should be awarded to the claimant.  Here it is the path which the respondent chose to follow which is a relevant consideration.  The claimant (guided by the comments of Wilcox J in Banno v. Commonwealth of Australia (1993) 81 LGERA 34), submitted:

"The relationship between the parties giving rise to the litigation does not arise out of their mutual desire. It arises because of the unilateral decision of the State of Queensland to acquire the Claimant's land in order to satisfy a perceived public need. The acquisition left the Claimant in the position of either accepting the Respondent's 'nil' assessment of compensation or having the court rule on its adequacy. Perhaps people in that position should be allowed access to the Court, to present an arguable and well organised case without being deterred by the prospect of being ordered to pay the Respondent's costs if the case proves unpersuasive. In this case it can be equally argued that, subject to the restrictions contained in Section 27(2) of the Acquisition of Land Act, that if a Claimant succeeds in recovering an amount of compensation substantially above the zero offering of the respondent, that it should have an expectation that it would also be able to recover the costs of pursuing that claim. To rule otherwise would be to impose a significant, and in many cases, insurmountable, barrier to dispossessed land owners pursuing their rightful claims for compensation."

If the claim was to be seen as exorbitant, as the respondent suggested, the reasons were identifiable and open to negotiation or consideration relevant to the facts of the matter and the applicable law.  Had the parties not been in dispute as to the scheme underlying the resumption, litigation may still not have been avoided, but the claimant would have been in a much better position to consider the wisdom of litigating the claim.  However, the first hurdle the claimant needed to overcome was the respondent's interpretation of the scheme. The respondent's stance allowed the claimant no option other than to litigate its claim.  If it was successful in overcoming that first hurdle then the risk it faced relative to costs, was the amount of the award relative to the "half-way" line.

I am unable to agree with the respondent's estimate as to the hearing time taken up with the issue of the resumption scheme, and consequently, enhancement.  Those issues were crucial to the respondent's case and had impact in one way or another, directly or indirectly, on the general conduct of the proceedings.

As Wells J said in Minister for the Environment v. Florence (1980-81) 45 LGRA 127 at 149:

"Upon a claim for compensation for land compulsorily acquired, it is not, generally speaking, appropriate to speak of one party as having won; compensation is awarded to one who has already been given by statute the right to receive it."

However in this matter the claimant "won" the argument as to the scheme underlying the resumption and should, in my opinion, recover the whole of its assessed loss consequent upon the resumption. That would not be the position if its costs in obtaining that assessment were not also recovered in full, once having achieved a determination which allows such recovery pursuant to s.27(2) of the Act.

In the exercise of the Court's discretion, I now order that the respondent pay the claimant's costs of and incidental to the hearing and determination of the claim for compensation.  The amount of such costs shall be ascertained and fixed by the Taxing Officer of the Supreme Court in Brisbane, pursuant to s.41(9) of the Land Act 1962.

RE WENCK
  MEMBER OF THE LAND COURT