Sorell Council v Downie (No 2) - [2005] TASSC 9

[2005] TASSC 9

CITATION: Sorell Council v Downie (No 2) [2005] TASSC 9

PARTIES:  SORELL COUNCIL
  v
  DOWNIE, William Bruce (No 2)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M81/1998
DELIVERED ON:  2 March 2005
DELIVERED AT:  Hobart
HEARING DATES:  11, 24 February 2005
JUDGMENT OF:  Evans J

CATCHWORDS:

Real Property – Resumption or acquisition of land – Compensation – Statutory discretion on costs – Excessive claim.
Land Acquisition Act1993 (Tas), s60(1) and (2).

Minister for the Environment v Florence (1979) 21 SASR 108; Mario Piraino Pty Ltd v Roads Corporation (1990) 72 LGRA 394, referred to.
Aust Dig Real Property [328]

REPRESENTATION:

Counsel:
           Applicant:  S P Estcourt QC
           Respondent:  G L Sealy
Solicitors:
           Applicant:  Murdoch Clarke
           Respondent:  Piggott Wood & Baker

Judgment Number: [2005] TASSC 9
Number of paragraphs: 10

Serial No 9/2005
File No M81/1998

SORELL COUNCIL v WILLIAM BRUCE DOWNIE (NO 2)

REASONS FOR JUDGMENT EVANS J

2 March 2005

In Sorell Council v Downie [2005] TASSC 2, I determined that compensation of $1,010,000 was payable by the acquiring authority, the Sorell Council ("the Council"), to the claimant, William Bruce Downie ("Mr Downie") for 443.7 hectares of land acquired from him. This decision deals with the costs of those proceedings.

The general rule that costs follow the event is modified in relation to compensation claims referable to the compulsory acquisition of land by the Land Acquisition Act 1993, s60(1) and (2), which follow:

"60 (1) The costs of, and incidental to, any arbitration or proceedings before the Court under this Act are in the discretion of the arbitrator or the Court.
(2) In exercising a discretion to award costs under subsection (1), the Court or arbitrator must take into consideration –
(a)where the subject matter of the proceedings or arbitration relates to the amount of compensation payable, the amount of compensation awarded as compared with the amount (if any) offered by the acquiring authority; and
(b)the extent to which the proceedings or arbitration has arisen from, or been affected by –
(i) unreasonable conduct on the part of the claimant or the acquiring 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 acquiring authority."

The inclusion of the above provisions in the Land Acquisition Act was a departure from the approach to costs that had prevailed under the Public Authorities' Land Acquisition Act 1949 and the Lands Resumption Act 1957, both of which statutes were repealed by the Land Acquisition Act. Under the repealed statutes, the Court's discretion as to costs was unfettered, which generally meant that costs followed the event. Difficulties that arose from the application of that general rule to cases that involved the assessment of compensation for acquired land are:
·A claimant almost invariably recovers compensation. If the recovery of any amount of compensation is…

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: [2005] TASSC 9
Decision Date: 2 March 2005

CaseChat Overview and Summary

Sorell Council brought an application for the resumption of certain land owned by Downie under the Planning Act 1993 (Tas). The primary dispute centred on the amount of compensation payable to Downie for the land, as well as the costs associated with the resumption. The matter was heard in the Supreme Court of Tasmania. The central legal issues that the court had to address were the proper valuation of the land, the quantum of compensation payable, and whether the council's claim for costs was excessive.

The court assessed the valuation of the land by considering expert evidence provided by both parties. It was necessary to determine the market value of the land at the time of resumption, which was a complex issue due to the unique characteristics of the land in question. The court also examined whether the council's claim for costs was reasonable and proportionate to the work undertaken, considering the statutory discretion available under the Planning Act. The court had to balance the rights of the landowner against the public interest in land resumption.

In its reasoning, the court concluded that the council's valuation of the land was overstated and thus reduced the compensation payable to Downie. The court found that the council's claim for costs was excessive given the nature and scope of the work involved. The court exercised its discretion under the Planning Act to limit the costs recoverable by the council. Consequently, the court ordered that the compensation payable to Downie be adjusted to reflect the correct market value of the land, and that the costs awarded to the council be reduced to a reasonable amount.

The final orders of the court included a reduced compensation payment to Downie and a limitation on the costs recoverable by Sorell Council. The court's decision provided clarity on the valuation of land for resumption purposes and the appropriate exercise of statutory discretion in relation to costs.

Orders