Wilson v Ipswich City Council(No. 2)
[2011] QLC 37
•14 June 2011
LAND COURT OF QUEENSLAND
CITATION: Wilson & Anor v Ipswich City Council(No. 2) [2011] QLC 37 PARTIES: Mark William Wilson as Trustee for the Wilson Family Trust
(applicant)v.
Ipswich City Council
(respondent)and
Mark William Wilson and Stephen John Downey
(applicants)v.
Ipswich City Council
(respondent)FILE NOS: AQL842-07 (Mark William Wilson as Trustee for the Wilson Family Trust)
AQL843-07 (Mark William Wilson and Stephen John Downey)DIVISION: General Division PROCEEDINGS: Applications for costs DELIVERED ON: 14 June 2011 DELIVERED AT: Brisbane HEARD AT: Written submissions PRESIDENT: CAC MacDonald ORDER: 1. In proceeding AQL842-07, 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 including any reserved costs.
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 under the scale of costs prescribed by law for proceedings in the Supreme Court.
3. In proceeding AQL843-07, the respondent is ordered to pay the applicants' costs of and incidental to the hearing and determination by the Land Court of the claim for compensation including any reserved costs.
4. 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.
CATCHWORDS: Costs - principles to be applied - costs awarded to applicants - appropriate scale. SOLICITORS: Brown & Baker Lawyers for the applicants
Horrell Legal for the respondent
This decision deals with two applications for costs arising out of the hearing and determination of two claims for compensation brought by the applicants against the respondent in respect of the resumption of the applicants' land under the provisions of Acquisition of Land Act 1967 (the Act).
Proceeding AQL842-07 relates to the acquisition of land owned by Mark William Wilson as Trustee for the Wilson Family Trust.
Proceeding AQL843-07 relates to the acquisition of land owned by Mark William Wilson and Stephen John Downey as tenants in common in equal shares.
The applicants seek the following orders in each proceeding -
(i)the respondent is ordered to pay the applicants' costs of and incidental to the hearing and determination by the Land Court of the claim for compensation, including any reserved costs;
(ii)if the parties are unable to agree upon 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 applicants have advised that costs were reserved in respect of interlocutory proceedings on 13 March 2008, 15 May 2008, 18 July 2008 and 22 January 2009.
The respondent's solicitor has informed the Court that the respondent has no submissions on costs, in view of the reasons for judgment and findings of the Court in these matters, other than to note that the question of costs is a matter for the exercise of the discretion of the Court under s.27 of the Act.
Section 34 of the Land Court Act 2000 provides, so far as relevant, 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.
…
(5) The court may, if it considers it appropriate, order the costs to be decided by the appropriate assessing officer of the Supreme Court, under the scale of costs prescribed by law for proceedings in the Supreme Court.
(6) If the court makes an order under subsection (4), the assessing officer may decide the appropriate scale to be used in assessing the costs."
Section 27 of the Acquisition of Land Act 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) …".
In proceeding AQL842-07, compensation was determined in the sum of $1,406,192. Mr Wilson's final claim for compensation for the value of the land taken was $1,568,168. The amount of the valuation finally put in evidence by the respondent was -
Loss of land $850,000
Disturbance $9,692
Total $859,692In proceeding AQL843-07, compensation was determined in the amount of $979,651. The amount of compensation finally claimed by the applicants was $1,189,126. The amount of the valuation finally put into evidence by the respondent was -
Loss of land $300,000
Disturbance $9,651
Total $309,651It is apparent that in both proceedings, the amount of compensation as determined is nearer to the amount finally claimed by the applicants in each case than the amounts of the valuation finally put in evidence by the respondent. Consequently, pursuant to s.27(2) of the Act, any costs must be awarded to the applicants.
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. The cases referred to by the Land Appeal Court included Moyses v Townsville City Council[2], Minister for the Environment v Florence[3], Banno v Commonwealth of Australia[4] and Kabale Holdings Pty Ltd v Director General, Department of Transport[5] where the Land Appeal Court referred to Wyatt v Albert Shire Council[6].
[1] (1997) 17 QLCR 401 at 406-408.
[2] (1979) 6 QLCR 271.
[3] (1980-81) 45 LGRA 127.
[4] (1993) 81 LGERA 34.
[5] (1997-1998) 18 QLCR 166.
[6] [1987] 1QdR 486.
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 (Wyatt at 488 quoted in Kabale at 29)
· Subject to s.27 of the Acquisition of Land Act, the discretionary power of the Land Court is full or complete (cf Wyatt at 488-9, quoted in Kabale at 29).
· 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 (Florence at 149, Banno at 53).
· The discretion whether to award costs may not be exercised in an arbitrary manner but must be exercised on principled grounds (Banno at 53) or judicially, that is, for reasons that can be considered and justified (Wyatt at 489) by reference to relevant considerations (Moyses at 273).
· 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 reasonable costs of obtaining the compensation, that is ex hypothesi, his 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 (Moyses at 278, Florence at 149 - 150).
The Court went on to say in Yalgan that relevant considerations in relation to the award of costs in that case included[7] -
[7] Yalgan Investments Pty Ltd v Council of the Shire of Albert (1997-98) 17 QLCR 401 at 416.
· 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.
Although the applicants were not wholly successful in their claims, I consider that they are entitled to an award for costs in relation to these proceedings. The applicants were entitled to have their claims for compensation determined by the Land Court. The claims were not exorbitant and there has been no suggestion that the applicants had pursued vexatious or dishonest claims or had presented their cases in such a way as to impose unnecessary burdens on the constructing authority or the Court. In each of the cases, the applicants succeeded on the principal questions to be determined by the Court, namely the identification of the schemes of resumption for the purposes of the application of the Pointe Gourde principle[8] and the highest and best use of both properties in the before situation. I accepted the valuation methodology adopted by both parties, that is the before and after method of valuation for the purposes of assessing compensation under s.20 of the Act. I also accepted the basis on which the applicants' valuer proceeded, that is that the reasonable purchaser would consider that the developer of the adjoining shopping centre would be prepared to pay a premium for both lots. In relation to the valuation of one of the lots (Lot 55) in the after situation, I preferred the respondent's valuer's evidence to the applicants' valuer. However, this is not sufficient to lead to the erosion of an order for costs in favour of the applicants.
[8] Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands (Trinidad) [1947] AC 565.
This is a case where my discretion to award costs can only be exercised in favour of the applicants. The claims succeeded because I accepted significant parts, although not all, of the evidence and submissions made on behalf of the applicants. The applicants ought to receive their reasonable costs of obtaining the compensation due to them. In those circumstances, I consider that the applicants should be awarded their costs in relation to the hearing and determination of the claim for compensation. Accordingly they should also be awarded the reserved costs referred to above.
The costs should be awarded on the standard basis. Counsel for the applicants has sought an order that the costs be assessed on the Supreme Court scale by the appropriate assessing officer of the Supreme Court, if not agreed. I consider that it is appropriate to order that the costs be assessed on the Supreme Court scale because of the amount of money involved in the claims and the amounts awarded as compensation.
ORDERS
1. In proceeding AQL842-07, 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 including any reserved costs.
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 under the scale of costs prescribed by law for proceedings in the Supreme Court.
3. In proceeding AQL843-07, the respondent is ordered to pay the applicants' costs of and incidental to the hearing and determination by the Land Court of the claim for compensation including any reserved costs.
4. 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.
CAC MacDonald
PRESIDENT OF THE LAND COURT
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