Van Byron Pty Ltd v Chief Executive, Department of Main Roads (No. 2)
[2011] QLC 80
•23 December 2011
LAND COURT OF QUEENSLAND
CITATION: Van Byron Pty Ltd v Chief Executive, Department of Main Roads (No. 2) [2011] QLC 80 PARTIES: Van Byron Pty Ltd
(applicant)v. Chief Executive, Department of Main Roads
(respondent)FILE NO: AQL565-09 DIVISION: General Division PROCEEDING: Application for costs DELIVERED ON: 23 December 2011 DELIVERED AT: Brisbane HEARD AT: Written Submissions PRESIDENT: CAC MacDonald ORDER: 1. The respondent is ordered to pay the applicant’s costs of and incidental to the hearing and determination by the Land Court of the claim for compensation
2. If the parties are unable to agree on the costs to be paid, such costs are to be decided on the standard basis by the appropriate assessing officer of the Supreme Court.
CATCHWORDS: Costs — principles to be applied — costs awarded to applicants — no order as to appropriate scale — s.34 Land Court Act 2000 — s.27 Acquisition of Land Act 1967 SOLICITORS: Hede Byrne & Hall for the applicant
Clayton Utz for the respondent
This decision deals with an application by Van Byron Pty Ltd (the applicant) for an order for costs against the Chief Executive, Department of Main Roads (the respondent) in respect of the hearing and determination of a claim for compensation in respect of the compulsory acquisition of land under the provisions of the Acquisition of Land Act 1967.
The applicant seeks the following orders:
(i) The respondent is ordered to pay the applicant’s costs of and incidental to the hearing and determination by the Land Court of the claim for compensation.
(ii) If the parties are unable to agree on the costs to be paid, such costs are to be decided on the standard basis by the appropriate assessing officer of the Supreme Court under the scale of costs prescribed by law for proceedings in the Supreme Court.
The respondent has submitted that the appropriate order is that there should be no order as to costs and that each party should bear their own costs.
Legal Principles
Section 34 of the Land Court Act 2000 provides that:
“34 Costs
(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.
(3) An order made under subsection (1) may be made an order of the Supreme Court and enforced in the Supreme Court.
(4) For subsection (3), it is enough to file the order in the Supreme Court.
(5) The court may, if it considers it appropriate, order the costs to be decided by the appropriate assessing officer of the Supreme Court.
(6) If the court makes an order under subsection (5), the assessing officer may decide the appropriate scale to be used in assessing the costs.”
The general discretionary power of the Land Court to award costs under s.34(1) is to be read subject to the provisions of s.27 of the Acquisition of Land Act which provides:
“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.
(3) Subsection (2) does not apply to any appeal in respect of the decision of the Land Court or to costs awarded pursuant to section 24(3) or section 25(3).”
In Yalgan Investments Pty Ltd v Shire of Albert,[1] the Land Appeal Court reviewed the leading authorities on the scope and exercise of the Land Court’s power to award costs in compulsory acquisition cases.
[1] (1997) 17 QLCR 401 at 406-408.
The following propositions formulated by the Land Appeal Court in Yalgan are relevant to this matter -
· The power to award costs of proceedings is entirely the creation of statute.
· Subject to s.27 of the Acquisition of Land Act, the discretion of the Land Court is full or complete.
· Compulsory acquisition cases differ from ordinary claims in the significant respect that the claimant, unlike the ordinary plaintiff, has no choice whether to make a claim or not. The mere acquisition by compulsory process gave the claimant a claim to compensation which he or she could hardly be expected to renounce.
· The discretion to award costs may not be exercised in an arbitrary manner but must be exercised on principled grounds or judicially, that is, for reasons that can be considered and justified by reference to relevant considerations.
· In general, a party who is wholly successful in litigation can expect an order for costs in his favour. Where compensation is awarded to one who had already been given, by statute, the right to receive it, it is just to say that the claimant ought in the absence of special circumstances, to receive his or her reasonable costs of obtaining the compensation that is ex hypothesi due. But costs are discretionary and no hard and fast rules 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. In some cases, the Land Court may consider that there are sufficient reasons for departing from the general rule.
The Court went onto say in Yalgan[2] that relevant considerations in relation to the award of costs in that case included -
· The claimant had a claim for compensation which it had to have determined by the Land Court.
· The claim for compensation was not exorbitant.
· The claimant was not wholly successful in the litigation.
· The amount of compensation as determined was nearer to the amount finally claimed by the claimant in the proceedings than to the amount of valuation finally put in evidence by the constructing authority.
· Although the Land Court did not accept the valuation or the method for calculating the amount of compensation advanced by the claimant in that case, neither did the Court accept the totality of the evidence of the constructing authority on these matters.
· In the absence of special circumstances, the claimant ought to have received its reasonable costs of obtaining the compensation that is its due.
· Neither party criticised the conduct of the other in the presentation of its case before the Land Court. In particular, there was no suggestion that the claimant had pursued a vexatious, dishonest or grossly exaggerated claim or had presented its case in such a way as to impose unnecessary burdens on the constructing authority or the Land Court.
[2] Yalgan Investments Pty Ltd v Council of the Shire of Albert (1997-98) 17 QLCR 401 at 416.
Consideration of issues
Compensation in this matter was determined as follows:
Lot 14 $60,000
Lot 5 $25,000
Total $85,000
Disturbance $11,000
Total $96,000The effect of s.27(2) of the Acquisition of Land Act is that the Court is required to compare the amount of compensation determined with the amount finally claimed by the claimant and the amount of the valuation finally put in evidence by the constructing authority. The amount finally claimed by the applicant was:
Loss of land, severance and injurious affection: Lot 14 $80,000 Injurious affection: Lot 5 $25,000 Costs attributable to disturbance $11,000 Total $116,000
The amounts claimed in the first two items above remained unchanged from the date of service of the claim for compensation in November 2009 until the conclusion of the Land Court hearing. The amounts claimed for disturbance were amended but the total was, ultimately, agreed at the hearing.
The amount of the valuation finally put in evidence by the respondent was:
Loss of land and injurious affection: Lot 14 $40,000 Disturbance: $11,000 Total $51,000
It can be seen that the amount of compensation finally claimed by the applicant ($116,000) is closer to the Court’s determination of compensation ($96,000) than the amount of the valuation finally put in evidence by the respondent ($51,000). Accordingly, the effect of s.27(2) of the Act is that it is only the applicant which is entitled to apply for costs and, it necessarily follows, the Court’s discretion to award costs can only be exercised in favour of the applicant.
In this case the claimant was entitled to have its compensation claim determined by the Land Court. The claim was not exorbitant although the claimant was not wholly successful in the litigation. The respondent submitted that, leaving aside the injurious affection in respect of Lot 5, the ultimate determination of compensation concerning Lot 14 was the amount of $60,000, which was mid way between the applicant’s claim of $80,000 and the respondent’s claim of $40,000. Further, the disturbance costs in the amount of $11,000 were agreed. In other words, leaving aside the injurious affection to Lot 5, the respondent submitted, the decision of the Land Court was squarely at the mid point of the parties’ final positions.
Accordingly, the respondent submitted, the only clear success of the claimants related to the claim in respect of Lot 5. The dispute between the parties over Lot 5 raised a question of law, that is whether injurious affection to that lot was claimable. There was no dispute between the parties as to the quantum of the injurious affection to that lot and therefore that issue occupied little or no time at the trial.
In relation to the legal issue as to whether injurious affection to Lot 5 was compensable, the respondent submitted that –
(a) the respondent’s submissions at trial were supported by authority;
(b) the law was uncertain until the finality of the appeal proceedings in Springfield;[3]
(c) the substantive decision in this matter was the first application of the Springfield decision to s.21 of the Acquisition of Land Act; and
(d) little time was occupied in legal argument about the issue at trial.
Accordingly, the respondent submitted, the appropriate order for costs with respect to that issue was an order that each party bear their own costs.
[3] Springfield Land Corporation (No. 2) Pty Ltd v State of Queensland (2011) 242 CLR 632.
Alternatively, if the Court decided that costs should be awarded, the respondent submitted that such costs should be limited to the costs on this issue, that being the only issue on which the claimant had any success beyond the mid-point.
Counsel for the respondent cited no authority in support of the approach taken in this submission, that is that the success of the party in relation to individual components of a claim is to be assessed by applying the test set out in s.27(2) of the Acquisition of Land Act. In my opinion, the function of s.27(2) is to provide a threshold test which is to be used for determining whether or not any party is eligible for the award of costs. As discussed above, the application of this test in this matter has the effect that costs may only be awarded to the claimant. Once that has been decided, the question as to whether or not costs should be awarded is governed by the provisions of s.34 of the Land Court Act and the Court has an unfettered discretion in this regard. I can see no reason to fetter the discretion to award costs by applying a test, as submitted by the respondent, that requires the Court to determine success by applying a half way test by analogy with s.27(2). In my view, the correct approach is to apply the principles set out in Yalgan.
The claimant has been successful in relation to the three principal components of the claim. The award of compensation for Lot 14 was higher than proposed by the respondent, the award for Lot 5 was the same as claimed and disturbance was agreed. I consider, therefore, that the claimant should be awarded its costs of the proceedings.
The Court was informed by counsel for the claimant in written submissions relating to the application for costs that the compensation awarded exceeded the compensation offered in a Calderbank offer made on 22 June 2010. That offer had been rejected by the respondent. Counsel submitted that the offer was an additional factor which the Court could properly take into account in the exercise of its discretion as to the award of costs.
In view of the conclusion I have reached above as to the award of costs there is no need for me to consider this additional submission.
Counsel for the applicant also sought an order that, if the parties are unable to agree on the costs to be paid, such costs are to be decided on the standard basis by the appropriate assessing officer of the Supreme Court under the scale of costs prescribed by law for proceedings in the Supreme Court.
This is a case where it is arguable whether costs should be assessed on the Supreme Court scale, given the quantum of the claim. In the circumstances I decline to make an order that costs be assessed on the Supreme Court scale. The affect will be that s.34(6) of the Land Court Act will apply and the assessing officer may decide the appropriate scale to be used.
ORDERS
1.The respondent is ordered to pay the applicant’s costs of and incidental to the hearing and determination by the Land Court of the claim for compensation.
2.If the parties are unable to agree on the costs to be paid, such costs are to be decided on the standard basis by the appropriate assessing officer of the Supreme Court.
CAC MacDonald
PRESIDENT OF THE LAND COURT
0
1
0