The Valuer-General v Queensland Club
[1991] QLAC 18
•28 June 1991
|
BRISBANE
28th June, 1991
Re: Appeal against decision of Land Court -
Valuation of Land Act.
(AV90-174).
The Valuer-General
ats
Queensland ClubJ U D G M E N T
This appeal is brought by the Valuer-General against the determination of the Land Court which fixed the unimproved value of land owned by the respondent and situated on the corner of Alice and George Streets, Brisbane, in the sum of $2,435,000 for rating and taxing purposes. The Valuer-General valued the land in the sum of $4.4 million. The valuation was made under the provisions of the Valuation of Land Act 1944 - 1987 (the Act). The date as at which the value is required to be ascertained is 31st March, 1989 (the relevant date).
The relevant land has an area of 3,990 square metres. It is improved land. It houses the Queensland Club. This establishment possesses characteristics which by the Town Plan for the City of Brisbane (the Plan), (the relevant part becoming effective in February, 1989), is part of the heritage of the City. The aim of the Plan is to conserve the building in its entirety. It is one of some 77 buildings included (in whole or in part) in the Table of Heritage Buildings following Section 22 (Heritage) of the Plan and being that part of the Plan, the subject of the arguments before the lower Court and before this Court. The respondent argues that Heritage is a matter of relevance in ascertaining unimproved value in that, assuming the land were unimproved land at the relevant date, the owner would be restrained from achieving what he could achieve in the absence of Heritage and under the zoning of the land "Special Development (City Residential)". The sum determined in the lower Court is an agreed sum and represents the unimproved value of the land on the assumption that Heritage is a matter going to unimproved value in the circumstances of this case. Alternatively it is agreed that if Heritage does not apply, the appropriate value is the sum of $4.4 million.
Section 22 deals with Heritage. We make no attempt, nor is it relevant that we attempt, to examine the provisions as they may relate or interrelate to particular lands embraced in some way within the veil of Heritage. But some general remarks are made in order to distinguish the particular matter before the Court. What the Council of the City has recognised is contained within the introduction to this part of the Plan as follows:"The Council recognises that places within the City, because of a number of factors including their architectural or historical characteristics, become part of the heritage of the City.
These areas, where these places group together and take on an overall heritage character, may include a particular part of the City or a street frontage of a building or a series of buildings that are held in high community esteem. In each case it is necessary to assess the relative significance of the structure, the facades and the special quality of any decoration. "
A general description of the aim of the Council and the manner in which it intends to achieve that aim is contained within Section 22.2 as follows:
"It is the aim of the Council to conserve culturally significant places in the City by retaining sufficient buildings and other structures which are illustrative of the historic development and character of the City.
Council considers that negotiation is the key to achieving productive use and reuse of buildings in such a way that the use does not detract from the amenity of the area. This may involve the use of the Particular Development Zone to ensure the retention and maintenance of a heritage building while allowing an economic use to be made of the building and the remainder of the site. The Council is prepared to provide incentives, such as additional floor space, the relaxation of development standards, or transfer of development rights in some cases, where these will ensure the retention and on-going maintenance of a heritage building. "
Heritage areas may include gardens such as the "Botanical Gardens" or trees such as the "fig trees" on R641 in Eagle Street. In the Table referred to previously, buildings may be included in whole or in part. Parts may include the frontage or, for example, with the "Regent building, 167 Queen Street", to the extent of the "Queen Street frontage, original entry, foyer, lounge, and grand stairway". The section provides (s.22.5) that the carrying out of any works involving a Heritage building, including demolition of a Heritage building which would otherwise be a permitted development, shall be a permissible development. Incentives and disincentives are contained within the provisions of the section. For land within the Central Business Zone, subsections 9 (Increase in Allowable Development), 10 (Reduction in Allowable Development), 11 (Transferable Site Area), 12 (Registration of Transferable Site Area) and 16 (Relaxations) are directly relevant. The subject land is not within the Central Business Zone. For this land, sub-section 8 (Reduction in Allowable Development) is directly relevant. The sub-section provides as follows:
"Where in the opinion of the Council any development in a zone other than the Central Business Zone is facilitated by -
(a)the demolition on or after 23rd June, 1987, of a Heritage Building to or in excess of the extent it is stipulated in Column 4 of Table 22.5 as having significance; or
(b)the alteration or modification of a Heritage Building so as to effectively preclude or prejudice the conservation of, or so as to have a prejudicial impact upon, the Heritage Building to the extent it is stipulated in Column 4 of Table 22.5 as having significance,
the gross floor area which that development may not otherwise exceed shall be reduced by an area equivalent to twice the gross floor area of the Heritage Building. "
The sub-section does not stand alone. Sub-section 7 provides for an increase in allowable development in a zone other than the Central Business Zone. This provision provides the incentive. No evidence was given before the lower Court or before this Court as to whether that sub-section has any practical application in the circumstances of the subject case. Nor did either party so contend. We can only assume that it does not. The position therefore, simply put, is that if the owner or a purchaser of the subject land were desirous of redeveloping the land as at the relevant date for its highest and best use under the current zoning of the land "the gross floor area which that development may not otherwise exceed shall be reduced by an area equivalent to twice the gross floor area of the Heritage Building": s.22.8.
The submission of the respondent is that this provision constitutes a restriction upon the use of the land and is a matter which should be reflected in ascertaining the unimproved value of the land for the purposes of the Act. It is agreed that the quantum of the depreciation is reflected in the difference between the sums in dispute. The submission of the Valuer-General is that "the real test is not the effects of the restriction if the building were demolished, but rather the effects of the restriction if the building had not been erected at all, and the subject land was in its virgin state at the date of valuation".
S. 12 of the Act provides the charter for determining unimproved value. The section provides, insofar as is relevant, that unimproved value of land means:
" (1)(b)In relation to improved land, the capital sum which the fee-simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require, assuming that, at the time as at which the value is required to be ascertained for the purposes of this Act, the improvements did not exist:....... "
The words "assuming that, at the time as at which the value is required to be ascertained for the purposes of this Act, the improvements did not exist" have been the subject of much judicial exposition, beginning for all relevant purposes with Toohey's, Limited v. The Valuer-General [1925] A.C. 439 (P.C.) and containing the well known passage at p. 443 as follows:
"Now, what he has to consider is what the land would fetch as at the date of the valuation if the improvements made had not been made. Words could scarcely be clearer to show that the improvements were to be left entirely out of view. They are to be taken, not only as non-existent, but as if they never had existed. It is, therefore, to approach the question from a completely wrong point of view to begin with a valuation which takes in the improvements and then proceed by means of subtraction of a sum arrived at by an independent valuation in order to find the required figure. What the Act requires is really quite simple. Here is a plot of land assume that there is nothing on it in the way of improvement; what would it fetch in the market? It will be observed that the value is not what has been sometimes designated by the expression "prairie value". The land must be taken as it exists at the date of the valuation. "
In that case, the unimproved value of land containing licensed premises was required to be ascertained. The relevant legislation contained these words - "assuming that the improvements, if any, thereon or appertaining thereto, and made or acquired by the owner or his predecessor in title, had not been made". The fallacy in the method of valuation adopted by the Valuer-General in that instance is explained at p. 444 of the speech of their Lordships:
"But, as already said, the result obtained is not only contrary to the method permitted by the Act, but is demonstrably fallacious. Proceedings are begun by the taking of a figure for the subject as it stands as licensed premises. It is obvious that this figure is composed of three ingredients; first, the bare land itself; second, the buildings themselves constructed for and appropriate for licensed premises; third, the enhanced value due to the fact that the land and buildings in question are not only suitable for licensed premises, but are in fact licensed premises.
When, however, the subtraction sum is entered upon it is only item 2 that is subtracted from the total figure; the result being that item 3 is all included in the unimproved value. From this follows the extraordinary result that the land is enhanced by the value of a licence which could only be granted in connection with buildings - for a licence such as this cannot be granted to sell liquor without premises - in a calculation in which you are told to assume that no building is there."
The next authority is Tetzner v. Colonial Sugar Refining Co. Ltd [1958] A.C. 50 (P.C.). In this instance an assessment of unimproved value was required of land occupied by a sugar mill. The relevant legislation contained these words -
"....assuming that the improvements, if any, thereon or appertaining thereto and made or acquired by the owner or his predecessors in title had not been made. "
The argument propounded by the appellant company may be summed up in a passage at p. 56 of the speech of their Lordships -
"To make a valuation upon a comparison with the values of surrounding land which were due largely to the fact that a mill had been built and other improvements made on the company's land was to make an untrue comparison and to tax the company on such a valuation was to tax it upon values created by the company itself. "
Their Lordships held that this argument placed on the legislation a meaning
"which it cannot, on a reasonable construction, be taken to bear. The section draws a clear distinction between the land and the improvements on or appertaining to the land. And the improvements have to be made or acquired by the owner or his predecessor in title. The improvements pointed to, are, in their Lordships' opinion, clearly physical improvements of one kind or another and not an improvement, or increase, in the value of the bare land. It is these physical improvements and any value directly attributable to and inhering in them that have to be excluded from valuation. "
After discussing the prosperity which may flow to the neighbourhood of the mill through the successful operations of the mill, their Lordships said -
"None of these factors can be regarded as improvements made or appertaining to the land, and it would be an almost impossible task to expect of a valuer to assign to the physical improvements their quota of contribution to the land values of the locality. But in their Lordships' view this would be an irrelevant inquiry. What in their opinion is required in the present case is that the physical improvements, with any value which they attach to the land on which they are situated, be excluded from the valuer's computation. The land will then be valued as land void of buildings but situated in the community with the amenities and facilities which have grown up around it. "
Toohey's case is discussed at pp. 57/8. Their Lordships said -
"Reference was made in the course of the argument to Toohey's Ltd v. Valuer-General and particularly to the passage already quoted in the judgment delivered by Lord Dunedin. The section of the statute there under consideration is indistinguishable from that in the present case. What was being valued in that case was the unimproved value of the site of premises licensed as a public house. The valuer arrived at the unimproved value by deducting the value of the buildings from the amount that would have been realised if the whole subject had been sold as licensed premises. This was clearly wrong because it left as adhering to the unimproved value that element of goodwill attaching to the premises as such. Particular emphasis was laid by counsel for the company on the sentence in the passage referred to: 'They [the improvements] are to be taken not only as non-existent but as if they never had existed'. This should be read, however, with a later passage not yet quoted: 'It will be observed 'that the value is not what has been sometimes designated by the expression 'prairie value'. The land must be taken as it exists at the date of the valuation.' Their Lordships are unable to attach any special significance to the words 'as if they had never existed'. The words of the Ordinance are as if they 'had not been made'. Nor can they extract from the judgment any principle that would prevent a valuer in assessing the unimproved value of land from resorting for purposes of comparison to the values of surrounding land at the date of valuation even though these values may have been largely built up by the initiative of the owner of the subject land in developing the neighbourhood. "
Counsel for the respondent relies on Tetzner for support of the proposition that the collateral effects of the existence of the improvements are not to be ignored; that is, as we appreciate his argument, just as the collateral effects of the sugar mill upon the value of land surrounding the mill were not to be ignored in valuing the land occupied by the mill, so too (and conversely it would appear) are not to be ignored the collateral effects of the existence of the improvements on the subject land. Further he submits that the underlying rationale is that reality is to be ignored only as much as is strictly necessary to comply with the Act. Support for this proposition, it is submitted, is found in Commissioner of Land Tax v. Nathan (1913) 16 C.L.R. 654 and to the passage of the judgment of the High Court at p.662:
"But past improvements, no matter how much their presence or use has enhanced the price, are not to be deemed never to have been made; their prior existence and the effect of them are not to be ignored. So when the 'improvements' as still existing are to be ignored, nothing is said as to erasing the effect they or their use have had in bringing the land up to its present value. "
In that matter, the Court was concerned with the term "value of improvements" as contained in the Land Tax Assessment Act (Q) in the ascertainment of the unimproved value of land improved and used for the purposes of a racecourse. As a principle of general application, the passage of the judgment quoted appears to accord with the principle stated by the Privy Council in Tetzner. The respondent in this instance applies the principle in reverse. The argument would seem to be this - that if the improvements upon the land have created an environment within itself or added to the environment external to its boundaries which enhances or restricts the potential use of the land (assuming it were unimproved) and hence, add to or detract from its value as unimproved land, such enhancement or depreciation is a matter going to the unimproved value of the land. Whilst the argument as propounded in this form appears not to have been considered by a court, Randwick Municipal Council v. Valuer-General (1960) 5 L.G.R.A. 387 and Queensland Turf Club v. The Valuer-General (1979) 6 Q.L.C.R. 180 L.C. tend to support it. The latter case dealt with the ascertainment of the unimproved value of the site of the Eagle Farm Race Course in Brisbane. The land was zoned "Existing Open Space". A question arose as to the possibility of obtaining a rezoning of the land for purposes other than Open Space. At p. 194, Mr W.F. Smith, then President of the Court, said:
"It was pointed out in Randwick Municipal Council v. The Valuer-General (1965) L.G.R.A. 387 at p. 398 and in Parramatta City Council v. The Valuer-General and another (1965) 10 L.G.R.A. 106 at p. 171, that the process of valuation, whether for rating purposes or otherwise, is not to be undertaken in a vacuum and that whilst the unimproved value of the subject land must be assessed on the assumption that as at the time of valuation the land was unimproved, the further assumption that it had at no time been improved as a racecourse or used as such or held by a race club for that purpose is not required.
It follows that the various types of factors which Else Mitchell J. enumerated in the Parramatta City Council case at p. 171 are relevant to the subject case. These would include the existence of the Queensland Turf Club with power to conduct a racecourse, the suitability of the subject land for the purposes of racing, its ideal situation close to a railway station and other facilities for transport, the existence of a demand amongst members of the public for racecourses, the necessity for any such course to be in close proximity to population centres in the metropolitan area and a scarcity of other sites of a suitable character, size and situation and the suitability of the land and size for a golf course or other recreational purposes and the general shortage of open space area in the city of Brisbane. The Government's interest in racing as a source of revenue would also be relevant. "
The Court held that the possibility of obtaining a rezoning was so remote as not to weigh with any hypothetical prudent purchaser.
At p. 395 of the Randwick case, Sugerman J. said:
"It appears to follow from Tetzner's case that, in a case such as the present, the making of the required assumption does not also require that the actual statutory restrictions upon the use of the land must be ignored in favour of a completely speculative inquiry into what, if any, restriction there would have been if the improvements on the land had not been made. Where the existence or nature of particular statutory restrictions on the use of land at any given time is made dependent upon the presence or absence of improvements at that time, it appears proper to attribute the restrictions applicable to the land in its improved condition to the improvements, so that an assumption that the improvements had not been made should carry with it the consequence that the last-mentioned restrictions must be regarded as having departed with the improvements to which they were attributable and the restrictions applicable to the unimproved land as standing in their place. Where, however, the existence of particular improvements on the land at some anterior time is merely part of the history of the imposition of restrictions on its use - that is, as furnishing a reason or motive for their imposition - there is no ground for regarding those restrictions as, in the relevant sense, attributable to or inherent in the improvements; so that, if it must be assumed that the improvements had not been made, it does not follow that the restrictions must be taken as not having been imposed. And this is more obviously so where it does not appear from the relevant legislation that actual removal or destruction of the improvements would operate by way of discharge or variation of the restrictions.
The circumstances of the present case, in which the state of improvement of the subject land existing in 1951 and 1952 is no more than part of the history of its treatment for the purpose of town-planning control under the relevant legislation, brings the case within the second, rather than the first, of the two categories which I have mentioned. Although the subject matter of valuation is the land regarded as if the improvements had not been made, the restrictions upon its use actually in operation at the valuation date must be taken into account; and the valuer is not required to regard these actual restrictions as non-existent and to complicate a valuation which is already sufficiently hypothetical by the addition of a speculative inquiry as to what, if any, the relevant restrictions upon the use of the land would have been if it had been unimproved. "
Before moving on, we observe that this passage appears to be on point in two ways - (a) that the existence of the Queensland Club was the force motivating the imposition of the restrictions on the use of the land for redevelopment and (b) that under the relevant section of the Plan, actual removal or destruction of the improvements would not (on the face of the Plan), operate by way of a discharge or variation of the restrictions on the land. Where the Plan intends that there be a discharge or variation or modification of the restrictions on the land, it has expressly so provided. See s.22.10 in respect of land within the Central Business Zone. As no such provision is made with respect to land not within the Central Business Zone, the restriction in s.22.8 of the Plan, runs with the land and not with the improvements.
The two cases last referred to recognised reality in the process of valuation. They dealt with possibilities and probabilities of obtaining a rezoning to a higher and better use than the actual restricted use. Cases involving the converse of this situation formed the crux of the argument underlying the submission put by Counsel for the Valuer-General. He relies on Toohey's case in the strict sense that it must be assumed that the improvements are to "be taken, not only as non-existent, but as if they never had existed". The danger inherent in this course of action is the very thing which Sugerman J. highlighted in the latter part of the last paragraph quoted and appears to be a course of action which can result by taking a rigid application of principles set when statutory restrictions upon use, more particularly zoning laws, were in their formative stages. Assume, for example, that a group form an association for the purpose of establishing a golf club. They purchase land for the purpose. The land is then zoned "Open Space" so as to accommodate the proposed usage. The land is improved and used for golf course purposes. Naturally the land in the planning documents for the foreseeable future of the plan is counted as Open Space and the surrounding environment planned on the basis that the course constitutes or provides, in whole or in part, the Open Space amenity for that area. When valuing that land under s. 12 (1)(b), there could well be a difference, depending upon emphasis, between assuming that the improvements had not been made and assuming as the submission appears to be before us, that the land had never been improved. The latter assumption, if left unrestrained, tends to carry with it the further inquiry pointed to by Sugerman J. which he rejected.
The converse is found in cases involving the valuation of land improved and used for a higher and better use than is permissible under the zoning laws. They dealt with what is commonly known as existing lawful non-conforming uses. The authorities referred to are Sonnerdale v. The Valuer-General (1953-55) 19 L.G.R. (NSW) 211 and Wunderlich Ltd v. Valuer-General (1960) 5 L.G.R.A. 50. In the former case, Sugerman J. clearly recognised that were the land to be valued as having no higher and better use than the use permitted under the zoning, an inequity in rating ensued in that the actual use (a prohibited use were the land unimproved land) which could be continued under the zoning laws was for a higher and better use. Notwithstanding the apparent inequity, he found that on a proper application of Toohey's case the unimproved value of the land must be determined on a test which he put as follows at p. 212:"Here is a plot of land; assume that there is nothing on it in the way of improvement; assume, therefore, that there apply to it the statutory restrictions upon use which would apply if there were nothing on it in the way of improvement; what would it fetch on the market? "
Hardie J. in Wunderlich addressed the same dilemma. On the application of the principle he found that a hypothetical prudent purchaser of the land would see no practical prospect of his being able to conduct on vacant land in a residential zoning, manufacturing and other activities such as those carried on by the company. The anomaly was corrected by legislation - see s.12 (1A) of the Act and for further explanation Stubberfield v. The Valuer-General (1988-89) 12 Q.L.C.R. 328 F.C. per Carter J.
We find that these cases differ significantly from the subject case. In the subject case, if the improvements were taken away there remains a parcel of vacant land zoned "Special Development (City Residential)" but limited in Gross Floor Area on development to that specified in s.22.8, whereas in the above cases any enhancement in value by reason of the fact that the land could continue to be used for the purpose for which it was used, lived or died with the buildings (improvements) upon the land - see Wunderlich p. 63 and Randwick p. 394. The remaining case cited by Counsel for the Valuer-General in support of this form of his submission dealt with the effect of an interim conservation order on the unimproved value of land improved with premises known as "Nugal Hall" at 16/18 Milford Street, Randwick. This case is Kupurp Pty Limited v. The Valuer-General (1982-83) 27 The Valuer 222. The matter was referred to Perrigon J. in the Land and Environment Court on a question of law. We have studied the judgment and it would appear, notwithstanding the references to the authorities just discussed, that the conclusion reached by His Honour in supporting the approach taken by the Valuer-General turned on the absence of a permanent conservation order under the Heritage Act 1977. We find that this line of argument as thus propounded does not assist the Valuer-General nor can assistance be gained in our opinion from the passage quoted from McGeoch v. Federal Commissioner of Land Tax (1929) 43 C.L.R. 277 at p. 290 which was made in the context of the question before the Court; namely, whether the eradication, destruction and removal of prickly pear plants are improvements on the land within the meaning of the Land Tax Assessment Act.
It is also necessary that some observations be made on terminology and the effect of that terminology in the Act and in the decisions under review; that is, the assumption that as at the relevant date, the improvements "did not exist" s. 12 (1)(b) "had not been made" (s. 12 (1A)) or "never had existed" (Toohey's). We see this terminology as language necessary to describe the notional physical state of the land to be considered at a specific point in time, in this matter, 31st March, 1989. There should be no difficulty then with the proposition that the valuer is required by the assumption to ignore improvements existing at the date of valuation. The valuer must simply say - "as at this date, this land is in its unimproved condition". The land is then identified as such in its existing environment within its relevant town planning zone. The language relevant to improvements is the necessary machinery to be used in making certain that the improvements are removed to reduce the land to the unimproved physical state.
In this case the valuer must put from the mind that as at 31st March, 1989, the fact that the Queensland Club existed, or ever existed, but for no other reason than to see the land in its virgin state but as zoned and in the existing environment. Once this scene has been set, the making of the valuation would indeed be conducted in a vacuum if any statutory restrictions (or advantages) attaching to the use of that land (no matter the historical happenings which created those restrictions or advantages, whether related to the local environment or confined within the boundaries of the particular site) and which had an effect on "the capital sum which the fee simple of the land might be expected to realise if offered for sale", were to be ignored. If the valuation was conducted in such a vacuum the result would be plainly wrong.
For the above reasons we have concluded that the valuation placed upon the subject land by the Valuer-General has no foundation in law. We accordingly dismiss the appeal and affirm the decision of the Land Court.
We turn now to the matter of costs. Council for the respondent seeks costs of the appeal and submits that such costs should follow the event. He also seeks costs of the initial hearing, which were refused in the lower Court. Costs were there applied for by the solicitor for the respondent (appellant in the lower Court) after the decision was handed down. There is no record of what argument if any then occurred. The matter has now been fully argued before this Court.
The powers of this Court as to costs are contained in s.44(16) of the Land Act 1962-1990 as follows:-"The Land Appeal Court may make such order as it thinks fit as to the costs of and incidental to an appeal or other matter that the Court has jurisdiction to hear and determine including, without limiting the generality of this section, the costs of an adjournment or application made in a pending appeal, allowances to witnesses attending for the purpose of giving evidence at the hearing and the costs of any survey of boundaries and may rescind, confirm or modify any order as to costs made by the Land Court. "
It is accepted that the principles which the Court should consider are contained in W.H. Bowden v. The Valuer-General (1980-81) 7 Q.L.C.R. 138 L.A.C. and that as a general principle -
"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. " (p. 147)
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 dependant 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 the situation with taxation cases where the Commissioner wants something sorted out by a court.
In dismissing the appeal, the Court has held that the Heritage provisions of the Plan are matters which must be considered in determining unimproved value. The extent of the effect will depend upon the circumstances of each case. There may well be cases where the provisions have no effect at all. Nevertheless, the decision of the Court is one of law and as such cannot be distinguished on this question on grounds that the principal finding may have a limited application. Indeed, Counsel for the Valuer-General did not seek to distinguish the matter on this ground. He does not disagree that the matter was in the nature of a test case and presumably the decision of the Court will be of benefit to the Valuer-General in performing the functions vested in him under the Act.
This case is unique in this respect and differs from those where a party may justifiably seek costs through lateness of notice such as in the case of Beedell Farms and Grazing Pty Ltd v. Valuer-General (1979) 6 Q.L.C.R. 322 at p. 324; referred to on p. 146 of the judgment of Bowden's case or where the Court is satisfied that proceedings brought are of a frivolous or vexatious nature or perhaps where a hearing is adjourned due to the wrongful conduct of a party. In Denning v. The Council of the Shire of Ipswich (1988/89) 12 Q.L.C.R. 171, the Land Appeal Court considered a question of costs in a resumption matter in which the respondent was successful. The principal issue turned on a question of interpretation of certain legislation which was seen as being of benefit to the respondent who, being successful, would prima facie be entitled to costs. Under the particular legislation governing costs in that matter, the Court could not award costs in favour of the dispossessed owner. The Court at p. 179 said -
"..... because the respondent has obtained from the Court the benefit of a decision on the effect of sub-s. 32(12)(1)(b) the Court considers that justice will be best served if in the particular circumstances of this case no order is made as to costs. "
This reasoning, we find, is applicable in the converse in the subject case before the Land Appeal Court. We find that in the circumstances the respondent is entitled to costs of the appeal to this Court.
The refusal of the Land Court to order costs in favour of the respondent was the exercise of a discretion conferred upon that Court. See Land Act 1962-1990 s.41(9). See also s.22 of the Act. In exercising its discretion, the Court necessarily takes into account all of the circumstances then appearing. Unless it is demonstrated that the discretion miscarried, or that some incorrect principle was applied, or that it was not exercised at all, the difficulties facing a party who seeks to set aside a discretionary order as to costs are well known. The respondent has not shown that the refusal of the Land Court to order costs in its favour was wrong.
Accordingly, it is ordered in the exercise of the Court's discretionary powers that the Valuer-General pay the respondent's costs of and incidental to the hearing before this Court. The amount of such costs shall be ascertained and fixed by the Costs Taxing Officer of the Supreme Court at 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.44(16) of the Land Act 1962-1990.
(W.C. Lee) J.
Judge of the Supreme Court
(D.M. White)
Member of the Land Court
(R.E. Wenck)
Member of the Land Court
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