Wuolle v The Council of the Shire of Atherton

[1992] QLC 1

[1992] QLC 1

 

 

LAND COURT,

BRISBANE.

3rd February, 1992.

Re:     Determination of Compensation -
  Resumption for Road Purposes.
  (A91-11)

J, HM and ER Wuolle
  v.
  The Council of the Shire of Atherton

APPLICATION FOR COSTS

Consequent upon the handing down of the Judgment in this matter on 8th November, 1991, Solicitors acting for the respondent Council of the Shire of Atherton have made written application for costs of and incidental to the hearing and determination of compensation.
Section 27 of the Acquisition of Land Act 1967 - 1988 reads:-

"(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."

Now the brief history of this matter is that the claimants originally filed a claim for compensation in the Land Court Registry in the sum of $60,000.  At the hearing in Atherton, evidence was led by the claimants to a value of $34,250 for the resumed land.  The respondent Council also led valuation evidence which contended that there was no entitlement to compensation as it was considered that the value of the retention area lands were enhanced by the scheme of the resumption for road purposes.  This enhancement, it was contended, was to the extent that there was a greater value of the lands retained by the claimants post resumption than the pre-resumption value.  The judgment of this Court confirmed the respondent Council's contention and it found that there was no entitlement to compensation for the resumption. 
  Now solicitors for the respondent Council urge the Court to make an award of costs in the respondent's favour.  Its submission is that the conduct of the claimants in the case and in particular to their having made, in the opinion of Council, an exorbitant claim was such as to force the constructing authority to unreasonably and unnecessarily engage in litigation and to incur costs.                     Solicitors for the claimant have responded to the application again in writing and submit that no order should be made in respect of costs except that each party should be ordered to bear its own cost.  This has been done on the basis that the claimants were justified in bringing on the application for compensation, which it is suggested was not frivolous or vexatious and was brought before the Court on good grounds.
  Although the claim for compensation and the claimants' valuation are not large sums, particularly these days, there was a difficult area in the case in that the claimants case was based on a highest and best use value of the resumed land not to be in accordance with its zoning and this was somewhat unusual.  Although the Court did not find in accordance with the claimants submission, it was an area in which they were entitled to seek a finding from the Court.  Certainly the claim was not frivolous or vexatious although it clearly was excessive.  Added to this, I think claimants are entitled to come to this Court without unnecessary fears about having costs awarded against them when the task at hand is to test a resuming authority's contention that no compensation is payable for the resumption of part of their land. 
  In these circumstances, and in the exercise of my discretion, I make no order as to costs.

C.H. Carter      
  Member of the Land Court.