The Astor Terrace Car Park v Department of Natural Resources and Mines - [2003] QLC 19

LAND COURT OF QUEENSLAND
CITATION: The Astor Terrace Car Park & Anor v Department of Natural Resources and Mines [2003] QLC 0019

PARTIES:Body Corporate for “The Astor Terrace Car Park” Community Titles Scheme and Body Corporate for “The Astor Centre” Community Titles Scheme
(applicants)
v
Chief Executive, Department of Natural Resources and Mines
(respondent)

FILE NOS: AV2001/0642 and AV2001/0643

DIVISION: Land Court of Queensland

PROCEEDING: Appeal against valuation for rental purposes under the Land Court Act 2000 Application for costs.

DELIVERED ON: 13 March 2003

DELIVERED AT: Brisbane

HEARD AT: Brisbane

MEMBER: Dr NG Divett

ORDER: I order that the respondent department pay the applicant’s costs of, and incidental to the appeals, up until the completion of the first day of hearing on 22 August 2002. Such costs to be shared equally between the applicants. Such costs to be ascertained by the appropriate assessing officer of the Supreme Court in Brisbane according to the scale of costs prescribed by law for the time being in respect of procedures in the Supreme Court, and in accordance with the provisions of s.34 of the Land Court Act 2000. In respect of the application for costs in the current matter I direct that all parties bear their own costs with respect to this application for costs.

CATCHWORDS: Statutory valuation – valuation for rental purposes – method of valuation – application for costs – no arbitrary action evident – because of rarity of circumstances the matter was likely to proceed to court – no lack of professional judgment.

Statutory valuation – valuation for rental purposes – method of valuation – application for costs – scarcity of similar matters – possible test case – partial costs awarded.

APPEARANCES:  Mr GR Allan for the appellants
  Russell Hanley and Johnson for the appellants
  Mr J O’Rourke for the respondent

Application for Costs:

Consequent upon the hearing of the judgment in the above matter on 28 November 2002, the appellants, who were successful in their appeals, made application for the awarding of costs in their favour. The respondent department resisted that application, claiming that, in the circumstances of the case, no order for costs ought to be made, and seeking the respondent’s costs in respect of responding to the current application for costs.
There was no appearance on the matter of costs and, with the agreement of both parties, the matter of costs was determined on the basis of separate written submissions supplied and exchanged by the parties. Counsel for the appellants was Mr GR Allan. The respondent was represented by Mr J O’Rourke, Principal Legal Officer.

History of the Claim -

Following notices of valuation by the Chief Executive, the appellants unsuccessfully sought to resolve differences of opinion on the value of the land by objections. The applicants then appealed to this Court, and the matter was resolved in favour of the appellants. The original valuations by the Chief Executive for rental purposes, had been $30,000 (The Astor Centre) and $20,000 (The Astor Terrace Car Park). The applicants initially argued for $15,000 (The Astor Centre) and $10,000 (The Astor Terrace Car Park). At the hearing both parties were granted leave to lead evidence to different valuations. The appellants argued for $8,000 for each rental valuation; while the respondent argued for $30,000 (The Astor Centre) and $40,000 (The Astor Centre Car Park). The Court found each valuation to be $8,000.
At the hearing it was agreed by both parties that there was little precedents for similar stratum lands, which might guide the court. The known matters involving valuations of stratum lands were explored in paragraphs [49] and [50] of the decision in this matter.
In their application for costs in both appeals, the appellants argued that the current case was one where an award of costs against the Chief Executive should be made in view of his approach to the valuations, which, in the appellants’ opinion, were arbitrary, and demonstrated a disregard for fundamental valuation principles. The appellants further submit that the costs involved for either party were unnecessarily extended and prolonged by preliminary legal arguments, raised by the Chief Executive. The respondent rejects those submissions.

The Legislation –

The general powers of this Court in respect of the awarding of costs are to be found in the provisions of s.34 of the Land Court Act 2000, which relevantly states:
“34.(1) Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate.
(2) If the court does not make an order under subsection (1), each party to the proceeding must bear the party’s own costs for the proceeding.
…
(5) The court may, if it considers it appropriate, order the costs to be decided by the appropriate assessing officer of the Supreme Court, under the scale of costs prescribed by law for proceedings in the Supreme Court.”
I am also aware that guidance in respect of costs is provided in s.70 of the Valuation of Land Act 1944 which states:
“(1) Where the value of land as finally determined upon an appeal against the valuation is the value stated by the owner in the owner’s notice of appeal against the valuation, or is nearer to that value than to the valuation appealed against, costs shall not be awarded against the owner.
(2) Otherwise costs shall not be awarded against the chief executive.”
However I note that direction is specifically directed at when costs are not to be awarded.
In an appeal against a rental for the licence of the stratum, or the most recently made valuation for rental purposes, made under s.183(1) of the Land Act 1944, any appeal is exercised under s.431 of that Act. The jurisdiction of the Court, which is the Land Court under schedule 6 of that Act, includes the power to hear matters conferred under the Valuation of Land Act 1944 (s.431(c)). For the purposes of this matter the main reference to “costs” is to be found in the Land Court Act 2000.

The Principles of Law –

In the matter of the power vested in the Land Court in respect of the awarding of costs, I note that they are established entirely by legislation, but they are also fully and completely discretionary in nature. However, it has been held that in exercising that discretion this Court must do so in a judicially sound manner, and by reference to relevant considerations. In this regard I note the findings of the Land Appeal Court in Townsville City Council v Moyses and Morris (1979) 6 QLCR 271, where the Land Appeal Court said at p.273:
“The general rule, then, is that costs are in the discretion of the Court, but of course the discretion must be exercised judicially, that is, by reference to relevant considerations.”
The general power to award costs was considered by the Full Court of the Supreme Court of Queensland in Wyatt v Albert Shire Council [1987] 1 QdR 486. The Full Court also considered the scope of a section of legislation which gave the Local Government Court power to “make such orders as it thinks fit as to the costs of any proceeding before it”, which it saw as essential the same as the power conferred upon the Land Court, which was described by the Full Court as “complete”. (p.488).
I am directed also to the need to examine the reasonableness of the conduct of the parties in deciding whether or not to award costs in this matter. In that respect I note the findings of the Land Appeal Court in Moyses (supra), where the Land Appeal Court followed the guidance outlined in Middleton v Freier and Ors (1958) QdR 351, where Philp J, speaking for the Full Court, said at p.357:
“… where an unfettered discretion is given by statute or a rule no court can by its decision impose conditions upon the free exercise of that discretion by another court …”
However, the Land Appeal Court in Moyses (supra) went on to explain the nature of a judicial decision at p.274 as follows:
“Second, where the Court is considering whether it should award costs to an authority, it would 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 inquire 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.”
I am also directed to the findings of the Land Appeal Court in WH Bowden v The Valuer-General (1980-81) 7 QLCR 138, where it said at p.146-147:
“We think, in dealing with questions of costs, that it is an important consideration that there be ease of access to the Land Court and the Land Appeal Court. … Fear of an adverse order with respect to costs may deter citizens with just complaints from resorting to the courts; that has in the past occurred, as will appear. It seems to us unjust to adopt a restrained attitude towards awarding costs against citizens without adopting an equally restrained attitude towards awarding costs against the Valuer-General. That is not to say that, in a proper case, the Land Court or Land Appeal Court will not award costs against either a citizen or an authority subject to the provisions of the statute which governs the matter.”
Easy access to the Land Court to air grievances and have valuations reviewed is, as we have already stressed, most desirable in revenue cases, and such access should be available, without fear of costs being awarded to either party except in special cases.”
However the power to award costs in a matter is an unfettered discretion provided to the Court. The matter of whether a party has won or lost is not necessarily the guiding principle which should guide the Court in exercising that discretion. That was emphasized in a compensation matter in Minister for the Environment v Florence (1980-81) 45 LGRA 127, where Wells J said at p.149:
“Upon an ordinary claim under general jurisdiction it is, generally speaking, obvious who has won and who has lost, and correspondingly clear why costs usually follow the event. Upon a claim for compensation of the 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. It is therefore as just to say of the latter sort of case that the claimant ought, in the absence of special circumstances, to receive his reasonable costs of obtaining the compensation that is, ex hypothesi, his due, as it is to say of the former sort of the case that prima facie costs follow the event in favour of the party who has won. But costs are, as always, discretionary, and no hard and fast rule will ever be allowed to occupy part of an area controlled by a discretion, however predictable the result of its exercise may be in certain sorts of cases.”
(see also Yalgan v Shire of Albert (1997-98) 17 QLCR 401, at 407).
I am also aware that in exercising the Court’s discretion, the Land Appeal Court said in Hymix Industries Pty Ltd v Valuer-General (1990-91) 13 QLCR 173, at p.184:
“In either case the exercise of his discretion must be governed by the circumstances of the particular case having regard to all relevant matters including whether the approach to the valuation is practicable and makes common sense (Reinke and Ors v. The Valuer-General (1969) 36 C.L.L.R. 178 LAC).”
In the above Hymix matter the Court was referring to the discretion exercised by the Valuer-General under s.15(1) of the Act, as it then was, now s.35(1), which allows for the possible amalgamation of two adjoining parcels held in the same ownership. However the principle is the same in that it is the circumstances of the matter which should influence the exercising of the decision-maker in exercising that discretion. In the end in Hymix the Land Appeal Court found at p.186:
“In the subject case it could not be held that either party has approached the valuation in an arbitrary, frivolous or vexatious manner or has completely disregarded principles which given certain facts, should be applied. The position is more to the contrary. The evidence has demonstrated that some complexity was involved and in our opinion there still remains some doubt as to the correct value of this land. In the circumstances we are of the opinion that no order should be made.”
However I am also reminded that where a question of law was the only dividing issue between the parties, then the matter of costs was awarded in the circumstances of that matter. For example in the matter of The Valuer-General ats Queensland Club (1990-91) 13 QLCR 207, the Land Appeal Court reversed the decision of the President below, awarding costs in the Land Appeal Court to the Queensland Club (p.223). In that case it was agreed by both parties that the matter was seen as a test case to determine the principle of whether the heritage provisions of the Town Plan ran with the land or with the improvements. The Land Appeal Court also found that the method adopted by the Valuer-General had no foundation in law.
In awarding those costs the Land Appeal Court noted at p.222:
“There is no suggestion that the Valuer-General has acted arbitrarily or capriciously in interpreting the law forming the basis of his valuation. The argument before the Land Court and this Court demonstrates otherwise. It appears also that at all times it was agreed that the matter turned on a question of law. The valuation sums which should be applied to the land are dependent upon whichever interpretation of the law is correct. In these circumstances, Counsel for the respondent argues that the matter is in the nature of a test case and that it would be inequitable for the respondent to have to bear the costs of testing a piece of legislation which is used for the benefit of all. This, he submits, is a situation with taxation cases where the Commissioner wants something sorted out by a court.”
In deciding to award costs to the Queensland Club, the Land Appeal Court noted that the President below had exercised his discretion, and the Land Appeal Court did not find that his discretion had miscarried, in not awarding costs of that matter to the Queensland Club; although the Queensland Club had been fully successfully in its appeal to the lower court. In that matter before the Land Court, both parties had agreed on the respective unimproved values, depending only upon resolution of the point of law in respect of the impact of the heritage provisions.
I note also that the discretion of the Court was seen to override any practice directions of a court, if they existed, so as to ensure the unfettered discretion of the Court. (Maurici v Chief Commissioner of State Revenue [2001] 114 LGERA 376, at 387). In concluding that judges should not fetter judicial discretion with self-imposed rigid rules, Handley JA considered guidance provided by the High Court in Norbis v Norbis (1986) 161 CLR 513, per Mason and Deane JJ, at pp.519-520, in respect of the developing of guidelines or rules affecting discretion. Handley JA also considered the findings of the High Court in Oshlack v Richmond River Council (1998) 193 CLR 72, per Gaudron and Gummow JJ at p.81, where they said:
“… the general proposition that it is inappropriate to read a provision conferring jurisdiction or granting powers to a court by making conditions or imposing limitations which are not found in the words used.”
In the current matter there are no directions or rules of this Court which seek to provide guidance to the Court, and my discretion is conditioned only by the circumstances of the particular matter, and the evidence provided. The findings of Maurici were later followed by Talbot J in Gibson v Mossman Municipal Council [2001] 116 LGERA 397, where he found that the Court was obliged to rely on the formulation of guideline principles established by judicial adjudication (paragraph 14), p.400). That guidance was also followed by Lloyd J in Maurici v Chief Commissioner of State Revenue & Ors (No.5) [2001] 119 LGERA 395, at paragraph 12 on p.399.

Decision:
Was the Approach of Mr Lund arbitrary?

Mr Allan argues that the approach of Mr Lund in his valuation was arbitrary; and that Mr Lund has completely disregarded fundamental valuation principles which, given the facts, he ought to have applied. If I first consider the matter of the meaning of the word “arbitrary”, I note it may be construed to mean “without a reasonable cause” (Quinoin v. Horne [1906] 1 CH 596 at 603 to 604.). I note also that the word “arbitrary” was also defined in Mills v Cannon Brewery Co [1920] 2 CH 38, per Lawrence J at 445, where he said:
“In my opinion the expression ‘unreasonably’, ‘wholly unreasonably’, and ‘without reasonable cause’ practically mean the same thing. Each of these expressions, I think, correctly defines the meaning of the word ‘arbitrarily’ as used in the underlease.”
That description was later applied in Mallyons Ltd v South Australian Harbour Board & Anor [1933] SASR 166, at 177. And also is reported in Stroud’s Judicial Dictionary, 4^th edition, p.174.
I note also that “arbitrary” may mean to be derived from a “random choice” or a “mere opinion”, or to be “capricious” in nature. (Concise Oxford Dictionary, 7^th edition, p.44). Clearly the nature of the meaning of the use of the word “arbitrary” must have relevance to the circumstances of its use. In the context of the current matter, I take it to refer to the valuation of Mr Lund to being unreasonable in its conclusions, or perhaps only to reflect Mr Lund’s mere personal opinion of the method of valuation of the stratum land.
I am directed also to the findings of this Court in Queensland Landmark Developments Ltd v Valuer-General (1992-93) 14 QLCR 168, where the Member (later President) considered whether the Valuer-General had acted “arbitrarily” or “capriciously”, or had acted in a “frivolous or vexatious manner”. In that matter the evidence of the Valuer-General “was found to have little weight when tested and balanced against the evidence of the appellant”. (p.171) The learned Member went on to say at p.171:
“It appears to me that it was a case which did not receive the care and attention it deserved at the outset and through expediency or lack of participation and guidance generally available to an assessing officer by those who oversee the valuation process, the matter remained cemented to the value of $1.9 million which Mr Skinner obviously found when preparing to answer the appeal could not be sustained. Had that action been taken sooner and an ear made available in conference to the evidence proposed to be led by the appellant, the appeal may have been determined without resort to the Court or in the least the margin for argument considerably narrowed.”
In the current matter Mr O’Rourke rejects that there was any element of arbitrariness or capriciousness in Mr Lund’s approach to the valuation. He notes that the Land Appeal Court has provided guidance on the correct approach to determining whether costs should be awarded in a matter, placing weight upon the conduct of a claimant in pursuing his claim. He refers me to Townsville City Council v Moyses and Morris (1979) 6 QLCR 271. However I note that matter relates to whether costs should be awarded to the authority (p.274), although I accept it may have reciprocal impacts.
Mr O’Rourke seeks support from the decision of this Court in Gay v Chief Executive, Department of Natural Resources (1997-98) 17 QLCR 282, where the Member, considering the matter of costs where the appellant had been substantially successful in her appeal, found at p.295:
“In examining the claims of the parties, I find there is little reason to doubt the integrity and professionalism of either party. The evidence of all the technical witnesses were sound and based on long experience in their specialities. The case was prosecuted on the basis of considerable commitment to their causes, albeit with a change of emphasis between the two engineers. On balance the Court leant heavily upon the greater personal involvement of Mr Goakes in development of the subject. I have no reason to find the evidence of any of the respondent’s witnesses to be arbitrary or capricious.”

I am also reminded by Mr O’Rourke that the fact that Mr Lund’s approach to the valuation was not accepted by the Court, does not demonstrate that there was any capricious or arbitrary conduct on his part. To support that conclusion he refers me to the decision on costs in Bruce Small Estates Pty Ltd v Chief Executive, Department of Natural Resources (AV96-292), 29 October 1997, unreported, at paragraph 24.
In that matter the learned Member was asked to decide whether the Chief Executive’s valuer (Mr Grennan) had acted arbitrarily in adopting a comparable sales approach which was rejected by the Court; and also a hypothetical development approach, in view of the Court’s rejection of Mr Grennan’s adopted profit and risk factor. Mr Grennan had based his estimate of the profit and risk factor on an industry standard, without providing evidence of “comparable developments in comparable markets over comparable time periods”. (paragraph 23). The appellant had adopted a discounted cash flow approach, which the Member noted had not, at that time, been widely accepted by the courts.
In Bruce Small Estates (supra) the Member found that in view of the lack of judicial recognition of the discounted cash flow method at that time, it was not arbitrary or capricious for the Chief Executive to seek the determination of the Court. She said at paragraph 25:
“It seems to me that the parties were equally forced into litigation by BSE’s reliance on DCF which had not, to that time, been accepted by the courts. In view of DCF’s non acceptance by the courts, it seems to me that the Chief Executive was entitled to decide, as he did, not to accept it as an appropriate method of valuation. That is so even though his stand contributed to the matter’s having to be litigated. It was a difficult and contentious matter and it was not unreasonable for the Chief Executive to decide that he would not make concessions in that regard but invoke the processes which are available to him under the Valuation Act to have the matter determined by the court.”
In the current matter Mr Allan argues that the approach of the respondent throughout the whole process of objection and appeal, has been to demonstrate a level of arbitrariness. He notes that the written decision on the objection referred to sales evidence, which was later not forthcoming to support that decision. He notes also that Mr Lund did not directly refer to the only known sale of stratum land then available. Mr Allan notes further that although the decision on objection referred to certain sales evidence to support the then determined unimproved values; Mr Lund later sought to lead to the higher unimproved values, apparently based upon his unsubstantiated reappraisal of the situation, preparing for the appeal. (See paragraph [3]).
Mr O’Rourke rejects those assertions, noting first that the proceedings of a statutory objection process are explicitly rejected as grounds for consideration of costs in an appeal process; and matters at such objection conferences are to be without prejudice. (S.53(4)). He rejects that Mr Lund did not refer directly to the only known stratum sale, noting that Mr Lund under cross-examination demonstrated a sound understanding of the “Pacific Fair” stratum sale, and both valuers had virtually agreed in their report on the discount to apply for such stratum parcels in the current matter. (60%). However Mr O’Rourke concedes that Mr Lund had only relied upon his professional experience to support his adoption of a 5% factor for the additional side access, an approach he argues is readily accepted by the courts.
Mr O’Rourke also rejects the appellant’s claim that Mr Lund’s leading evidence to a higher figure for the Astor Terrace Car Park, demonstrates a level of arbitrariness. Mr O’Rourke notes that the courts have accepted the difference between a valuation prepared for clerical purposes, such as a computerized annual valuation, and a valuation prepared for forensic examination by the courts. That was noted by the High Court in The Deputy Federal Commissioner of Taxation v Gold Estates of Australia Limited (1903) 51 CLR 509, at 514. That was also considered by this Court recently AMP Life Limited & Anor v Chief Executive, Department of Natural Resources and Mines (AV2000/0637), 18 December 2002, at paragraph [49], to be reported.
On those precedents I accept that a revision of a valuation for subsequent presentation to a court, does not demonstrate any arbitrary behaviour by a valuer. That recent decision of AMP Life Limited (supra) provides major guidance in respect of the legality of a subsequent valuation leading to a higher valuation, although the relevance of each valuation will be determined upon the evidence available. On the basis of all of the above guidance I find no element of arbitrariness by Mr Lund.

Was the Appellants unreasonably required to go to Court?

While Mr Allan agrees that matters discussed at the objection conference are excluded from this current matter, he argues that because of the approach taken by the respondent at that conference, and the wording of the decision forwarded to the objectors, the parties had no alternative other than to proceed to appeal. He contends also that even at the preliminary conference presided over by this Court, the respondent had been something less than forthright in conveying Mr Lund’s full range of evidence which would later be led to the Court. Mr Allan argues that such behaviour should be contemplated in deciding whether this was a matter in which costs should be considered for the appellants, whose case had been fully accepted by the courts.
Mr O’Rourke rejects those claims by the appellants, noting that the preliminary conference before the Court is also a matter that should not bear heavily upon any decision on costs. Mr O’Rourke further advises that the reason Mr Lund was unavailable to provide any sales evidence directly comparable to the subject land, was because of the rarity of a valuation of a licence over a temporarily closed road. He further notes that the appellants’ valuer (Mr Walsh) also did not provide evidence of sales where reciprocal easements for access were attributed to having values reflecting only 50% of the full value of the land. Mr Walsh relied upon his experience in that regard. Mr O’Rourke acknowledges that the letters on objections had some inaccuracies, but argues that does not demonstrate any arbitrary approach to the matter.
In respect of what is perhaps the key issue in this matter, I accept that the virtual rarity of exactly similar stratum lands, resulted in both valuers seeking to do the best they could with any evidence available. On that basis I accept that Mr Lund was not acting unreasonably in proposing his method of the valuations. Because of that lack of any previously directed comparable stratum lands, I believe it was inevitable that the matters would eventually have proceeded to court for determination.

Did the Respondent disregard fundamental valuation principles?

In respect of whether the respondent had acted upon a wrong principle, I agree with Mr O’Rourke that the Court did not explicitly come to that conclusion. While Mr Allan sees the decision of the Court as implying such a conclusion, that was not the outcome of the findings. In his approach Mr Lund has sought to compare initially “like with like”, and, because of a lack of any exactly comparable properties, he has had to seek an alternative method of valuation. I find nothing to demonstrate that Mr Lund did not seek to follow correct principles in this matter.
That then raises the question, did Mr Lund make a serious error of fact in his valuation. I find that he did, in my opinion, make an error of professional judgment in how he applied the premium attaching to the two subject lands. (Paragraph [77]). However that is really not a matter of any lack of professionalism, and is at the heart of any valuation matter, which is not of its nature a technical exercise. Indeed it has been found that valuation is a matter requiring experience and judgment, both of which Mr Lund sought to exercise.
The type of activity involved in a valuation was clearly defined by the High Court in Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1980-81) 146 CLR 336, where Mason J said at p.381:
“Valuation is a matter of estimation, not of precise mathematical calculation.”
That was later expanded by the Land Appeal Court in Department of Natural Resources v Radlett Enterprises Pty Ltd (1997-98) 18 QLCR 397, where it said at p.404:
“Valuation is intended to be an interpretation of a market, which in itself is imprecise, even when it is created by vendors and purchasers who satisfy the often quoted qualifications necessary to meet the test explained in Spencer v. The Commonwealth of Australia (1907) 5 CLR 418.”
On the basis of that guidance I do not find that an error of professional judgment is any reason for the awarding of costs as a result of any negligence by the respondent in this matter, or any disregard of any principle which should be applied. (Hymix (p.186).

Was the length of the Hearing unnecessarily prolonged?

Mr Allan argues that the preliminary points raised by Mr O’Rourke in respect of the jurisdiction of the Court, resulted in further costs to the appellants. In respect of the respondent’s leading to a higher value than that originally applied to the land, I accept that such an approach did result in additional time of the hearing. But that was mainly because the appellant chose to resist the acceptance of that higher figure. In the end the Court accepted the evidence to a higher figure by Mr Lund, but rejected its application on the facts of the case. I see no reason for consideration for that longer period of hearing to be borne solely by either party, as both sides contributed to the additional evidence.
In respect of the preliminary jurisdictional point raised on whether the court could proceed to hear the appeals against the valuations for rental purposes, I note that jurisdiction was found to lie. The background to that confusion appeared to follow the documentation of the objection conference, and I do not see confusion as leading to any selective responsibility for costs arising out of the decision of the appeals. Certainly the Court would have had to resolve whether it did have jurisdiction before proceeding to hear the matter. I agree with the obiter dictum nature of my findings at paragraphs [31] and [32].
In respect of Mr Allan’s argument that Mr Lund had completely disregarded sensible comparisons on a rate per square metre for the subject stratum, compared to the adjoining Astor Terrace Centre and Car Park, I believe that was covered in this decision at paragraph [38]. On its own, in my opinion, that does not justify the awarding of costs to the appellants in this matter.

Summary –

In considering the conduct of this matter I believe both valuers suffered from a lack of procedure to guide them in respect of the valuation of a common road licence stratum. As noted in the end, it was always likely to be resolved by the Court. While it was not conceded by either party to be a “test case” on such an issue, its evolution and final resolution suggests that in fact it does assume the nature of a “test case”. With an increasing potential to create similar stratum connections between City buildings, as already evidenced at the State Government building stratum across Ann Street, and the pedestrian strata at the Mater Hospital and Princess Alexandra Hospital, and also the matter of stratum underground tunnels between buildings, the methodology finally resolved is likely to have wider applications.
In seeking some guidance on the application of costs in a matter which might be seen as a “test case”, I note the findings in Queensland Club ats Valuer-General (supra) at p.222. In that matter, while the President in the court below decided that each party should bear their own costs, the Land Appeal Court decided to award the costs of the “test case” to the Queensland Club, who had been successful in both the Land Court and the Land Appeal Court. The Land Appeal Court found that the President in the Land Court had not incorrectly exercised his discretion, and therefore declined to overturn that decision on costs.
Now while the respondent in the current matter has not sought for it to be determined as a “test case” for guidance; I believe that the circumstances of the evidence of the scarcity of such stratum road licences, should be a matter for consideration. While I accept that the Queensland Club matter was resolved on a question of law, and the current matter revolves around a principle of valuation, I believe that the relatively unique nature of both matters draws a direct analogy between them. On that basis I will follow generally the guidance of the Land Appeal Court in Queensland Club v The Valuer-General, and award partial costs of the appeal to the appellants, who I believe should not be totally burdened with the cost of proving a method of valuation which is likely to have a wider application for the broader community.
However in determining the quantum of these costs I am aware that both parties pursued the jurisdictional and preliminary points of the hearing such that, what might have otherwise been restricted to a single day’s hearing, eventually became extended to a second day. On balance I believe any cost to the appellants should be restricted only to the partial costs relating to the initial day of hearing of the matter.

Order –

In the exercise of my discretion I order that the respondent department pay the applicant’s costs of, and incidental to the appeals, up until the completion of the first day of hearing on 22 August 2002. Such costs to be shared equally between the applicants. Such costs to be ascertained by the appropriate assessing officer of the Supreme Court in Brisbane according to the scale of costs prescribed by law for the time being in respect of procedures in the Supreme Court, and in accordance with the provisions of s.34 of the Land Court Act 2000. In respect of the application for costs in the current matter I direct that all parties bear their own costs with respect to this application for costs.

NG DIVETT
MEMBER OF THE LAND COURT