Vadoog Pty Ltd v The South East Queensland Water Board

[1993] QLC 20

[1993] QLC 20

 

 

LAND COURT,

BRISBANE.

22nd July, 1993.

Re:  Application for Costs -

Vadoog Pty Ltd

v.

The South East Queensland Water Board

RESUMPTION FOR GLENDOWER DAM

D E C I S I O N

The amount of compensation finally claimed in this matter was $1,600,335.  The amount of the valuation finally put in evidence by the Respondent constructing authority was $1,208,765.  Compensation was determined in a judgment delivered on 11th June, 1993 in the amount of $1,446,135, which amount is closer to the final claim than to the Respondent's final valuation.  The parties had agreed as to the value of the improvements ($416,000) and disturbance items ($14,885).  The difference lay in the value of the land.  The Claimant's valuation under that heading was $1,169,450, the Respondent's valuation was $777,880 and the determination $1,015,250. 
The land was resumed under the provisions of the Acquisition of Land Act 1967 (the Act) and section 27 provides for the matter of costs as follows:-

"27.  Costs. (1) Subject to this section, the costs of and incidental to the hearing and determination by the Land Court of a claim for compensation under this Act shall be in the discretion of that Court.

(2)  If the amount of compensation as determined is the amount finally claimed by the claimant in the proceedings or is nearer to that amount than to the amount of the valuation finally put in evidence by the constructing authority, costs, if any, shall be awarded to the claimant; otherwise costs, if any, shall be awarded to the constructing authority.

The subsection does not apply to any appeal in respect of the decision of the Land Court ...."

It follows, in terms of subsection (2), that in this matter, costs, if any, may be awarded only to the Claimant.  Application was made accordingly. 
           A written submission on behalf of the Respondent and the Claimant's written reply to that submission have been provided. 
           In the Respondent's submission reference in made to the findings of the Land Appeal Court in Moyses and Ors v. Townsville City Council (1979) 6 Q.L.C.R. 271. In that matter (as pointed out in the Claimant's reply) the Townsville City Council as the constructing authority and the only party able to be awarded costs based on the determination of the Land Court and subsection 2 of section 27 of the Act, had appealed against the decision of the Land Court not to award costs.  At p. 274 the Land Appeal Court when declining an invitation "to lay down rules or principles as to the way in which the Land Court's discretion should be exercised in certain circumstances" made two observations as follows:-

"First, we do not think that the presence of sub-section (2) of Section 27 in the Act should be regarded as some sort of legislative suggestion that, where the claim is substantially more than the amount awarded, and the amount put in evidence by the authority is not substantially less than the amount awarded, the Court should not merely refrain from awarding any costs to the claimant, but should award costs to the authority.  Second, 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 should 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."

The Respondent submits that in this matter, the Claimant was not entirely successful; not all findings of fact were in favour of the case for the Claimant; the Respondent at all times acted in a bona fide and reasonable manner and in terms of the Moyses judgement (supra) it could not be said that the approach taken by the Respondent was unreasonable in the sense that its actions were such as to unreasonably force otherwise avoidable litigation.  It is submitted that it could be reasonably inferred that having regard to the approaches of both valuers that litigation was inevitable despite the best intentions of both parties and, given the circumstances, this is an appropriate case where the Land Court ought not to make any order in respect of costs. 
           The Claimant replied, in accepting the Respondent's submission as to the inevitability of litigation, that costs should be awarded.  It is suggested that to do otherwise would mean "that the Claimant will not receive fair compensation to which it is entitled, the compensation as determined by the Court being reduced, through no fault on the part of the Claimant, by the amount of its costs necessarily incurred in obtaining that determination."  It is further stated that the dispossession of the claimant was for the public benefit and if that process necessitated litigation "to enable the assessment of compensation and if compensation is determined at an amount substantially greater than the valuation contended for by the resuming authority, then it is appropriate that the public should bear the costs of the process of obtaining that assessment of compensation."  It is submitted by the Claimant that the Land Appeal Court's reference in the Moyses matter, " to unreasonably forcing unnecessary litigation" is not an appropriate test here, because in that case, the Court was concerned with an application for costs against a claimant.  Here, the application is against the resuming authority, "whose actions in resuming the property have necessarily led to the litigation."  
           While the result of the determination process is a financial implication to both parties, I do not accept that the question of costs should be placed in the same category as "fair compensation."  The position of both parties is protected by "the scheme of the legislation as a whole, by the fact that the discretion as to costs is one which is to be exercised judicially, and by the restriction on the exercise of that discretion which is imposed by subsection (2) of section 27." - See also Moyses (supra) at p. 274. 
           The facts are that the resumed land comprised five surveyed lots, used at the date of resumption as an aggregated farming and grazing entity.  It was the Claimants case that the value of the land was influenced by the existence of titles capable of, in the main, individual sale.  The Respondent's case was that the highest and best use of the land was as a single holding.  Compensation was determined on the basis that the value of the land was influenced by the existence of two of the smaller surveyed parcels, while the "main balance area" should remain as one lot.
           Not only was the determination of compensation then favourable to the Claimant in terms of approach to the valuation, but the mathematical balance further swung in favour of the Claimant by reason of the level of value determined for the main balance area.
           It is seen as nothing more than speculation to consider whether different valuation approaches by either party may have avoided litigation.  In the circumstances particular to this matter I have come to the conclusion that the Claimant is entitled to costs.
           In exercising the Court's discretionary powers I order that the Respondent pay the Claimant's costs of and incidental to the hearing and determination of the claim.  The amount of such costs shall be ascertained and fixed by the costs 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 Section 41(9) of the Land Act 1962.

(R.E. Wenck)    
  Member of the Land Court.