Vanhoff Pty Ltd v The Commissioner of Main Roads

[1992] QLC 5

[1992] QLC 5

 

  LAND COURT

BRISBANE

11th February, 1992

Re:     Claim for Compensation.
  A91-56.

Vanhoff Pty Ltd
  v.
  The Commissioner of Main Roads

DECISION ON APPLICATION FOR COSTS

When Judgment determining compensation payable to the claimant company by the respondent in this matter was handed down on 4th February, 1992, Counsel for the respondent made an application for an order for costs in favour of the respondent.  It is his submission that the respondent has been put to unnecessary expense because the claimant has pursued claims which in law could not succeed and failing a settlement there was no option other than to have the matter determined by the Court.  The Court has found that the claim has failed.  He makes reference to the decision of the Land Appeal Court in Determination of Compensation - Appeals against failure of Land Court to award costs - Moyse and others v. Townsville City Council (1979) 6 Q.L.C.R. 271, in support of a submission that in making an exorbitant claim the claimant has forced the Authority unnecessarily into litigation.
  Mr McDiarmid, solicitor for the claimant, says that the directors of the claimant company had entered into extensive negotiations with officers of the Resuming Authority in an endeavour to settle the matter without recourse to litigation.  He says that most of the matters were resolved but agreement could not be reached on the claim in respect of kerbing and channelling.  In the circumstances it was appropriate to refer the matter to this Court for resolution.   A subsequent claim for injurious affection was made during the course of the hearing but this only arose because it had only then come to the knowledge of the claimant.
  He submits that while the Court has found that the claims were not sustainable, the claimant had acted reasonably in seeking a determination on the point but in the circumstances it would be equitable for the Court to exercise its discretion and make no order as to costs.
The power of the Court to award costs is contained in s.27 of the Acquisition of Land Act 1967-1979. Sub-section 1 provides that costs shall be in the discretion of the Court subject to the proviso in sub-section 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."  (My underlining.)

As was said in the Moyse case at p. 273 -

"The reference to the amount 'finally' claimed is to be explained by the fact that the Court has jurisdiction to allow a claim to be amended: Section 24, sub-section (3).

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. "

At p. 274 in that Judgment the Land Appeal Court said -

".... 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 would 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.  "

In this case, agreement has been reached on most heads of claim or the claimant has received something more than was offered by the respondent.  The amount finally claimed was in the sum of $199,762 against the amount contended for by the respondent of $69,408.  The claimant has received the sum of $80,408 following the finding I have made that the claims for injurious affection failed.
  I accept the evidence given by Mr Nock, the Principal Executive Officer of the claimant company, of the matters which were taken into consideration before purchase of the land which led him to conclude that the new road would be constructed to the standard applying to the road along the frontage of the original Tate land.  In all the circumstances I find that he has acted reasonably in seeking a determination of the Court to resolve this issue and in the circumstances I will exercise my discretion and make no order as to costs.

(D.J. Barry)     
  President of the Land Court