The Trustees of the District Grand Lodge of North Queensland of Antient Free and Accepted Masons of Queensland v Chief Executive, Department of Lands

[1994] QLC 53

[1994] QLC 53

 

  LAND COURT

BRISBANE

21 SEPTEMBER 1994

Re:     Application for Costs
  Appeal against a Categorisation - Land Act 1962 -
  VC94-0074

The Trustees of the District Grand Lodge of North Queensland of
  Antient Free and Accepted Masons of Queensland
  v.
  Chief Executive, Department of Lands

(Hearing at Townsville)

D E C I S I O N

Special Lease 44/39513 comprises land developed by the lessee as a complex for the care of aged persons.  In the rental period commencing 1st July, 1993, the Department of Lands rent notice indicated that the lease had been classified as being in "Category 4" (Commercial and Industrial).  The lessee duly objected to that categorisation seeking to have the lease classified as "Category 6" (Non-profit Organisations).
In the Land Amendment Regulation (No. 1) 1993 which took effect on 1st July, 1993, s.12C provided:

"A lease is a category 6 lease if and only if it is held by an organisation mentioned in s.204B(16)(b) or 212(15)(b) of the Act".

Section 204B(16)(b) of the Land Act 1962 is relevant here.  It provides:

"If the lessee is -

an organisation whose constitution does not permit its profits to be distributed to its members".

As early as 9th August, 1993, the lessee communicated its contention as to its non-profit status, but the eventual formal objection to the categorisation was disallowed by notice issued on 27th January, 1994 and received on 28th January 1994.  An appeal against that decision was lodged within the prescribed period.  The grounds of the appeal included an annexure being a copy of a clause of the relevant Constitution of the appellant organisation.  Profits were forbidden from being distributed to its members.  Accompanying the appeal was correspondence from the appellant's solicitors addressed to the chief executive, dated 23rd February, 1994, which included the following advice:

"We do not know whether you were aware of the constitutional provisions, copies of which are attached to the Notice of Appeal, when you reached your decision.  If you were not, then it may be that you will be satisfied, on the basis of those provisions, that our client is indeed entitled to categorisation as a Category 6 organisation.  If that is the case, please let us know as soon as possible, to avoid the need for further costs to be incurred."

The matter was duly set down for hearing in Townsville on 17th August, 1994.  The Court was advised by Counsel for the respondent that, after perusal of the file, and in preparation for the hearing, the opinion had been formed that there was merit in the appellant's contention as to the correct categorisation of the property.  The respondent had then immediately notified the appellant's solicitors (in the afternoon of 16th August) of that opinion.
           It was agreed between the parties that the Court should be asked to allow the appeal and formally order that the lease be included in Category 6 for the relevant period.  The appeal was allowed accordingly.
           Counsel for the appellant then made application for the award of the appellant's costs in the matter.  It was submitted that until the day prior to the hearing the Department had steadfastly refused to reconsider the decision, on the basis that to do otherwise would have been contrary to Government policy regarding the categorisation of leases issued to both non-profit and charitable organisations.  The appellant perceived that if the stated Government policy was relevant to the appeal then the appellant needed to be prepared to provide evidence as to its status as both a charitable and non-profit organisation.  Evidence as to the status of the organisation was intended to be led through two witnesses. 
Counsel for the respondent submitted that this was a matter akin to appeals under the Valuation of Land Act 1944, where the Court normally did not award costs. It was urged that in this matter guidance should be obtained from the comments of the Land Appeal Court in W.H. Bowden v. The Valuer-General (1980-81) 7 QLCR 138 at p.147:

"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."

The power of this Court to award costs is provided by s.41(9) of the Land Act 1962 which provides inter alia:

"The Court may make such order as it thinks fit as to the costs of or incidental to any matter that it has jurisdiction to hear and determine ...."

As the Land Appeal Court observed in the W.H. Bowden judgment (supra) at p.145:

"The power so granted is discretionary and is in no way circumscribed."

Then also at p.145:

"It appears to us that the legislature intended to leave all questions of costs in the Court's unfettered discretion ...."

The Land Appeal Court in a recent judgment in Chief Executive, Department of Lands v. Juris Towers Pty Ltd, not yet reported, having been delivered on 23rd August, 1994, allowed an appeal against a decision of the Land Court to award costs in somewhat similar but distinguishable circumstances.  In the Land Court decision the appeal against the amount of the valuation had been allowed and costs awarded against the respondent, because "ample warning had been given" as to the particular circumstance resulting in the appeal being allowed.  However, that "warning" had been given at a "without prejudice" conference.
           Here, the respondent was formally advised of the grounds of the appeal but "steadfastly refused" according to the appellant, to accede to the validity of those grounds until immediately prior to the hearing.  Furthermore, at the time of lodgment of the appeal the respondent had been specifically advised of the cost implications to the appellant.
           It is submitted by the respondent that even so, no costs should have been outlaid relative to witnesses.
           I accept the submissions for the appellant that it was seen as necessary for evidence to be called had the matter proceeded, through witnesses able to support the status of the appellant in so far as that status supported the grounds of appeal against the categorisation determined by the respondent.
           I see the background to this matter to sit comfortably within the "special case" circumstances to which the Land Appeal Court referred in the Bowden judgment.  In exercising the Court's discretionary power, I have decided that the application for costs should be granted.
           It is therefore ordered that the respondent pay the appellant's costs of and incidental to the hearing and determination of the appeal.  The amount of such costs shall be ascertained and fixed by the cost taxing officer of the Supreme Court in Brisbane, according to the scale of costs prescribed by law for the time being in respect of proceedings in the Supreme Court and in accordance with the provisions of s.41(9) of the Land Act 1962.

RE WENCK
  MEMBER OF THE LAND COURT