Smith v Council of the City of Redcliffe

[1992] QLC 44

[1992] QLC 44

 

  LAND COURT

BRISBANE

4th November, 1992

Re: Claim for Compensation A92-24

James Vincent Smith
  v.
  Council of the City of Redcliffe

DECISION ON APPLICATION FOR COSTS

When judgment determining compensation payable to the claimant by the respondent in this matter was handed down on 9th October, 1992, Mr T.J. Mazzoletti, solicitor for the respondent council, made application for an Order for Costs in favour of the respondent.  It is his submission that the respondent has been wholly successful in the matter and costs should follow the event.  He says that by letter dated 20th July, 1992, the solicitors for the claimant were put on notice as to the evidence to be presented at the hearing and advised that if the matter did proceed and a finding favourable to the resuming authority was made, this information as to the number of units which could be constructed would be brought to the attention of the Court on the question of costs.  He submits that there was adequate notice for the claimant, upon receipt of the letter, to check whether the valuer had proceeded on a wrong premise but this was not done. 
           At the request of Mr T.J. Ryan, solicitor for the claimant, I granted a period of 21 days in which submissions could be made on behalf of the claimant as to why an Order for Costs should not be made.
           In the written submission, Mr Ryan says that the claim was argued on behalf of the claimant by an experienced valuer and that the perception by the claimant's valuer was affected because the local authority having provided him with an inappropriate copy of the planning scheme when he requested one.  This coloured his judgment with respect to the number of dwelling units which could be constructed on the land and in the circumstances it is submitted that it is not appropriate to make an adverse costs order against the claimant. 
           I am unable to find merit in this submission.  It is a matter for the expert witness to satisfy himself that he is proceeding within the limits of the town plan as it applied at the date of resumption.  Where amendments have been made to a town plan, it was incumbent upon him to ascertain when such amendments came into force.  Additionally he should have been alerted to the problem after the letter of 20th July, 1992, from the solicitors for the respondent council which alerted the claimant's solicitors to the true position so far as the number of units which could be constructed upon the land.       
Section 27 of the Acquisition of Land Act 1967 provides that the costs of and incidental to the hearing and determination by the Land Court of a claim for compensation under the Act shall be in the discretion of the Court. Sub-section 2 is a proviso which, in this case, means that costs, if any, can only be awarded in favour of the respondent. It is, of course, a matter for my discretion but I am mindful of the words of the Land Appeal Court in Determination of compensation - Moyses and Morris v. Townsville City Council (1979) 6 Q.L.C.R. 271, where at page 274, the Court said:

"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.  "

And at page 278, the Land Appeal Court said:

"In general, of course, a party who is wholly successful in litigation can expect an order for costs in his favour, but we think that the learned Member could consider that in the present case there were sufficient reasons for departing from the general rule."

In this case, the respondent has been wholly successful and it is a case which unfortunately proceeded upon a valuation prepared upon an incorrect assumption.  In the whole of the circumstances, I am unable to conclude that I should exercise my discretion and make no order for costs but, mindful of the quantum of the award, I will make the award for a fixed amount of Eight hundred dollars ($800).
           Accordingly, it is ordered in the exercise of the Court's discretionary powers that the claimant pay the respondent's costs of and incidental to this action fixed in the sum of Eight hundred dollars ($800).

President of the Land Court