Warwick Brick Works Pty Ltd v Dollar

[1994] QLC 54

[1994] QLC 54

 

  LAND COURT

BRISBANE

14 October, 1994

Re:     Application for Costs -
Mineral Resources Act 1989 -
  MC93-2.

Warwick Brick Works Pty Ltd
  v.
  Muriel M Dollar

D E C I S I O N

An application for costs has been made by the respondent (Muriel M Dollar) following a determination by the Court of compensation payable by the appellant (Warwick Brick Works Pty Ltd) to the respondent in the sum of $5,500.
The matter came before the Court by way of appeal under the provisions of s.7.39 of the Mineral Resources Act 1989 (the Act) from a determination of the Mining Warden. The Warden had determined compensation in the sum of $11,000. The Act provides that costs of the appeal are in the discretion of the Court.
In the hearing of the appeal the appellant having been granted leave to admit further evidence (see s.7.39(6) of the Act) led evidence through a registered valuer supporting an estimate of compensation in the sum of $2,500. Leave to call such evidence was granted on 24 March 1994. In the hearing of the matter on 15 August, 1994, the respondent was given leave to adduce further evidence from a registered valuer. His valuation would support compensation in the sum of $12,388.
           The decision was handed down in Brisbane in the absence of the appellant.  On giving the decision, the Court made the following observations:

"Section 7.39(5) of the Act provides that costs of an appeal are in the discretion of the Court.  In this case the award is nearer to the amount of the assessment of compensation put in evidence by the appellant.  On general principles costs, if any, could only be awarded to the appellant.  Whilst this judgment is being handed down at Brisbane the solicitors for the appellant practise in Warwick and have advised the Registrar that they do not wish to put the appellant to further costs in having counsel or town agent appear before the Court to receive the judgment.  I can appreciate this course of action.  Further, it is quite common for parties to seek a delay in applying for costs until they have had time to peruse the judgment.

In the circumstances I grant the solicitors for the appellant liberty for a period of 14 days from date hereof in which to make to the Registrar, if so instructed, written application for costs together with submission why an order for costs should be made.  The Registrar is ordered upon receipt of any such application to forward a copy to the solicitors for the respondent who are hereby given 14 days from the date of the Registrar's letter in which to lodge a reply in the office of the Land Court.  My consideration on the merits of any application for costs will be based on the written submissions unless the parties request otherwise.   

I would add that having considered these proceedings from beginning to end the case is one in which I would be reluctant to make an order for costs unless convinced that matters which have passed my mind have been seen in the wrong perspective.  "

The appellant elected not to apply for costs.  The respondent does so apply on grounds that the appeal "has resulted in a situation where costs should not follow the event". 
           It would appear that proceedings began on or about 22 March 1993, when the appellant made an open offer to settle compensation in the sum of $1,217.50 to which the respondent replied, through her solicitors by letter dated 5 May 1993, seeking compensation in the sum of $3,409 ($700 per acre).  On 7 June 1993, the appellant advised the respondent that the sum claimed was unacceptable.  That letter met with a reply of 21 June asking "what you would consider to be a more reasonable offer".  The matter was due to come on for hearing before the Warden in August.  On 11 August the appellant wrote Mr J Grundy, Department of Resource Industries, which insofar as is relevant states:

"Please be advised that I have been unable to reach an agreement on compensation.  I have been told that $700.00 per Acre is far too much, and I have asked for them to return with a more reasonable offer.  I have had no response.

.........

Please advise the Warden that we will be unable to attend the hearing, but we feel that the only way would be for the Warden to determine the amount of compensation.  "

In the hearing before the Warden, the respondent (without notice being given to the appellant) led opinion evidence from two real estate agents.  Of the two opinions, the lower of $10,000 was accepted by the Warden which with an addition of 10% (in applying the provisions of s.7.38(4)(e) of the Act) yielded compensation in the sum of $11,000.  He awarded compensation in this sum and made an order for costs in favour of the respondent.  In his decision he said:

"Neither party tendered express valuation evidence which took into account the requirements of Section 7.38(3) of the Mineral Resources Act 1989. The assessments tendered by Mr Spencer, Exhibits 1 and 2, are not specific valuation for the purposes of the Act and Mr Spencer did not contend that they were so or that the authors were qualified valuers. At best those valuations could only be taken as a rough guide to local real estate market values existing at the time. Each party appears to be relying on an all-up market price for the land involved."

The appellant instituted the appeal and sought leave of the Court to call evidence from a qualified valuer.  Leave was granted.  The respondent acted likewise on the day of hearing.  The appeal was thus conducted as a hearing de novo with each party relying upon the evidence of expert witnesses (and necessarily disregarding any claims or offers of compensation previously made).
           The appellant was successful and on general principles would be entitled to costs unless there are grounds for ordering otherwise.  The appellant has elected not to apply for costs.  I might qualify that by saying that the Court in exercising its discretion as to costs generally with respect to compensation matters has frequently made no order as to costs when the resuming authority (appellant in this case), although successful, is ordered to pay compensation in a sum substantially in excess of the amount advanced or finally put in evidence.  In other respects I am unable to find evidence which may constitute "good cause" for ruling otherwise.      In the circumstances I make no order as to costs.           

President of the Land Court