Shepherds Properties (NQ) Pty Ltd v The Cairns Port Authority

[1991] QLC 32

[1991] QLC 32

 

 

LAND COURT,

BRISBANE.

26th September, 1991.

Re:                Determination of Compensation -
  A90-26.

Shepherds Properties (NQ) Pty Ltd
  v.
  The Cairns Port Authority

APPLICATION FOR COSTS

Consequent upon handing down judgment of the above matter counsel for both parties have made application for costs of and incidental to the action.  The history of the matter, in so far as it is relevant to the application, is that on 12th June, 1990, Shepherds Properties (NQ) Pty Ltd filed in the Land Court Registry a claim for compensation in the sum of $545,770.  At the outset of the hearing of the matter in Cairns on 18th February, 1991 leave was sought and was granted to amend the claim to $439,000.  This amended claim was made up as follows:-

Value of Lot 1 on RP 738764 -                   $ 25,000

Value of Lot 3 on RP 738764 -                   $404,000

Value of Land resumed  $429,000

Compensation for disturbance                   $ 10,000

Total Claim   $439,000
  =====

Counsel for the Claimant Company then informed the Court that compensation for disturbance has been agreed between the parties in the sum of $3,750, and as a result the claim was further amended and the amount finally claimed by the Claimant Company was $432,750.  The amount of the valuation finally put in evidence by the constructing authority (Cairns Port Authority) was $84,200 (Lot 1 on RP 738764 $18,200 and Lot 3 on RP 738764 for $66,000) although supporting additional and conditional valuation evidence was led by the constructing authority to a value of $105,000 (Lot 1 on RP 738764 $30,000 and Lot 3 on RP 738764 $75,000).
  Judgment was entered on 30th August, 1991 as follows:

Lot 1 on RP 738764 -  $ 30,000

Lot 3 on RP 738764 -  $125,000

Compensation for disturbance

(as agreed)  $  3,750

Total award of compensation                    $158,750
  =====

The authority for this Court in so far as costs are concerned is vested in Section 27 of the Acquisition of Land Act 1967 - 1988. The relevant part of that section reads:-

"(1)Subject to this section, the costs of an 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."

The constructing authority presses its claim for costs in view of the  principles set out in the judgment of the Land Appeal Court in re:  Moyses and Morris and Ors v. The Council of the City of Townsville (1979) 6 QLCR 271 where at p 274 that Court said:-

"In the present case counsel for the authority invited this Court to lay down rules or principles as to the way in which the Land Court's discretion should be exercised in certain circumstances.  He contended that the claims of the respondents were inordinately high - "outlandish" was one expression which he used.  He submitted that, in the public interest, which requires that unnecessary litigation be avoided, we should lay down rules as to the exercise of the discretion where the amount claimed has been substantially more than the amount awarded, and where the amount put in evidence by the authority is not substantially less than the amount awarded.  Although not spelled out in so many words, it is clear that the suggestion was that the effect of the rules should be that, in general, there should in such circumstances be some order for costs in favour of the authority.

We think that we should decline the invitation made to us by counsel. The public interest, it would seem to us, is amply protected by the scheme of the legislation as a whole, by the fact that the discretion as to costs is one which is to be exercised judicially, and by the restriction on the exercise of that discretion which is imposed by sub-section (2) of Section 27. Moreover, the effect of modern authority is that "where an unfettered discretion is given by a statute or a rule no Court by its decision impose conditions upon the free exercise of that discretion by another Court ----------". However there are two observations which we feel at liberty to make. First, we do not think that the presence of subsection (2) of Section 27 of 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."

Now it is urged by the constructing authority that the amount finally claimed in the proceedings was in reality an exorbitant claim, and has been such as to force the constructing authority unreasonably and unnecessarily into litigation since it was based on misconceptions about using resumed Lot 3 for the use for which is was contended - ie an industrial subdivision.  It is submitted that no regard was had nor any enquiry made into the likelihood of the substantial conditions of subdivision likely to be imposed by the Cairns City Council, and no advise was sought with respect to the prospect of obtaining a permit to destroy mangroves which were on the land.  Again it is submitted no advice had been sought in obtaining legal access to the land.  Based on the findings in the judgment, the Court is urged to find that the constructing authority is entitled to an award of costs.
Counsel for the Claimant Company, who as aforementioned was instructed to formally apply for an award of costs in its favour, acknowledges that if the Court in the exercise of its discretion decides to award costs, then this discretion is fettered by subsection (2) of Section 27 of the Acquisition of Land Act, and that costs, if any, can only be awarded to the constructing authority. However it is argued by the claimant company that the Court should exercise its discretion and make no award as to costs. It is pointed out that the claimant company did not go away empty handed in that a sum of $74,550 was recovered over an above the advance of $84,200 which was paid. It is to be noted that this additional compensation included the agreed amount of $3,750 for disturbance.
  The claimant company 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 contends that there is nothing to suggest that the Cairns Port Authority was forced unnecessarily into litigation since its position was forged in 1987 in that the land was only worth $84,200.  This remained the position throughout the proceedings and it was only reasonable that the appellant proceeded to the Court to recover more than the authority was prepared to pay.  In addition it is submitted on behalf of the claimant that it did not proceed without witnesses of substance.  With this contention I agree.
It is also submitted by the claimant company that the Court should take into account that a substantial award was made for interest in addition to the compensation payable. This submission has no merit since the interest provisions of the Acquisition of Land Act (Section 28) are not relevant to the question of costs under the provisions of the Acquisition of Land Act (Section 27).
  This case ways perhaps in many was unusual.  The proceedings were lengthy and many professional and lay witnesses were called.  The assessment of compensation for the taking of what was prima facie an area of tidal mangrove land was indeed one of complexity.  In all the circumstances, and taking into account the judgment of the Land Appeal Court in re:  Moyses and Morris and Ors v. The Council of the City of Townsville, (supra) and in view of the fact that the claimant did recover a not insubstantial sum over and above the amount of the valuation finally put in evidence by the constructing authority, in the exercise of my discretion I make no order as to costs.

C.H. Carter      
  Member of the Land Court.