Yarrow v Coordinator-General
[2012] QLC 25
•14 June 2012 [Ex tempore]
LAND COURT OF QUEENSLAND
CITATION: Yarrow v Coordinator-General [2012] QLC 0025 PARTIES: Kelvin George Yarrow and June Elizabeth Yarrow
(applicants)v.
Coordinator-General
(respondent)FILE NO: AQL192-11 DIVISION: General Division PROCEEDING: Application for property inspection and further disclosure of documents DELIVERED ON: 14 June 2012 [Ex tempore] DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Mr PA Smith ORDERS: As regards General Application filed in the Court on 4 June 2012 regarding experts:
1. The persons listed in Table 1 below may, with 3 days notice to the applicants, enter Lot 1 on RP207956, County of Canning, Parish of Maroochy, Title Reference 16906124 (“Lot 1”) and Lot 4 on RP 207955, County of Canning, Parish of Maroochy, Title Reference 16894221 (“Lot 4”) (and including all farm and irrigation sheds on Lot 1 and Lot 4) and do the following where such activity or conduct is relevant to determining compensation that should be paid to the applicants in this proceeding:
(i) make observations and take photographs of Lot 1 and Lot 4 or anything on Lot 1 and Lot 4;
(ii) take soil samples of Lot 1 and Lot 4.
Table 1
Name Organisation 1 Mr Stephen Tancred Orchard Services 2 Mr Bernard Duncan Bernard J Duncan Valuers 3 Mr Nick Ehren Office of the Co-ordinator General 2. Costs are reserved.
As regards General Application filed in the Court on 8 June 2012 regarding discovery:
1. The further hearing in this matter be adjourned to a date to be fixed; and
2. Costs are reserved.
CATCHWORDS: ACCESS to property ― order sought for experts to produce report ― prior access by another expert ― change in circumstances ― access order granted APPEARANCES: Ms M Roberts, Solicitor for the Applicants
Ms S Brien, Counsel for the RespondentsSOLICITORS: Butler McDermott Lawyers for the Applicants
Clayton Utz for the Respondents
Background
I have before me two applications brought by the respondent seeking orders against the applicants. The first application, in short, seeks that an expert and other related persons be allowed access to the applicants’ property for the purpose of inspecting the property so that an expert report can be produced.
The second application relates to issues of disclosure in that the respondent claims that certain documents, which they have sought, have not been provided by the applicants.
I’ll deal firstly with the application regarding expert evidence. It is unfortunate in this matter that the Court has not had placed before it any material by Ms Roberts in support of any factual statements that she has made in submissions. However, I will proceed on the basis of the accuracy of those comments in the absence of any clear indication that those facts are in dispute. It does appear to me, given the evidence put forward by Ms Brien for the respondent, that there is not, in real terms, much dispute as to the factual background in these matters.
It would appear that a person in the same field of expertise as Mr Tancred has previously inspected the subject property. However, at that time, the claim for compensation was cast in a different form to that which is now sought by the applicants.
The claim with respect to losses relating to various crops and orchards on the land is in the vicinity of $1.3 million. This is, in any terms, a significant sum. Ms Brien has also indicated that the first expert, who inspected the property when the quantum was a lesser amount, was an employee of an entity linked to the respondent.
The person now proposed to undertake the inspection, Mr Steven Tancred, is, I understand it, a pure expert in a manner in which that term would be well understood by all present in Court.
The application has been opposed by the applicants, principally on the basis that the respondent has already had an opportunity to inspect the property, and nothing more is to be gained from the further inspection. In my view, that misses the fundamental point that the claim has been re‑cast since those inspections took place.
Accordingly, it is my view that it is appropriate that the persons referred to in the draft orders provided by Ms Brien, that being, Mr Steven Tancred, Mr Bernard Duncan, and Mr Nick Ehren’s, be granted access to the property for the purposes as set out in the draft order provided to the Court. I'll deal with the issue of costs for this application after I've dealt with the second application before the Court.
As to the second application relating to issues of discovery, Exhibit 1, for the purposes of this application, is a letter dated 14 June 2012, from the solicitors for the applicants to the solicitors for the respondent.
That letter details the continued illness of Mr Yarrow, and also advises that searches undertaken have revealed that there are no documents in existence to match those sought by the respondent. In those circumstances, Ms Brien concedes that there is little utility in pressing the orders sought in the substances of the application, but she maintains her application for costs.
As regards the question of costs with respect to both applications, I am somewhat concerned that on the limited material before me the applications have occurred at a time when the applicants have been facing severe health issues of Mr Kelvin Yarrow.
This is not meant in any way as a criticism of the respondent for bringing the application, but simply the Court recognising the position that the applicants have been in, and also recognising the difficulties inherent for their solicitors in obtaining instructions at that time. That, of course, does not necessarily excuse the applicants' solicitors for only responding to the application for discovery by letter dated today.
Certainly, in my view, the applicant’s solicitors could have informed the respondent’s solicitors at an earlier date that due to the severe health issues of Mr Yarrow, they were still unable to obtain instructions. If more open communication had existed in that regard over the last period of months, perhaps the application would never have been brought.
The solicitor for the applicants has raised the point that it is a difficult time for Mr and Mrs Yarrow at this stage due to the health issues. I am also concerned, as I had indicated, that I have not received any real adequate material from the applicants through their solicitors for the purposes of today’s hearing of the applications.
My inclination is that costs should be awarded to the respondent with respect to each application. I do have a reservation, however, with respect to the first application, and that relates to a full cost based analysis of the reasonableness of having a second expert undertake another inspection of the property when an expert has already inspected that property. Perhaps the first inspection should not have occurred.
It is difficult to know what the true situation is in that regard until a full assessment is made of the expert evidence and the quantum that is ultimately found to be appropriate for this matter. As I have indicated, my inclination is that the reasons to date by the respondent do appear reasonable.
Taking into account the current health situations of the applicants and being as generous to them as I can be at this time, what I propose to do is to simply reserve the issue of costs with respect to each application, but noting my inclination at this stage that costs with respect to each application should, unless the applicants are able to establish good reason otherwise, be payable to the respondent.
Now, the formal orders will be in accordance with the draft handed up by Ms Brien and initialled by me, save for paragraph 2, which will be amended to reflect that the costs will be reserved. That deals with the orders with respect to the first matter.
As regards the general application relating to discovery of certain material, it is clear that on current instructions the applicants are not able to provide the requested documentation because that documentation would appear not to exist.
The issue of costs, though, remains outstanding and I have indicated my intention to reserve the costs of that application. Because of, I would anticipate, continuing queries regarding the documents in this matter, I consider it appropriate not to dismiss the application but simply to adjourn the further hearing of the application as to discovery until a date to be fixed, and, secondly, to reserve the issue for costs.
Orders
As regards General Application filed in the Court on 4 June 2012 regarding experts:
1. The persons listed in Table 1 below may, with 3 days notice to the applicants, enter Lot 1 on RP207956, County of Canning, Parish of Maroochy, Title Reference 16906124 (“Lot 1”) and Lot 4 on RP 207955, County of Canning, Parish of Maroochy, Title Reference 16894221 (“Lot 4”) (and including all farm and irrigation sheds on Lot 1 and Lot 4) and do the following where such activity or conduct is relevant to determining compensation that should be paid to the applicants in this proceeding:
(i)make observations and take photographs of Lot 1 and Lot 4 or anything on Lot 1 and Lot 4;
(ii)take soil samples of Lot 1 and Lot 4.
Table 1
Name
Organisation
1
Mr Stephen Tancred
Orchard Services
2
Mr Bernard Duncan
Bernard J Duncan Valuers
3
Mr Nick Ehren
Office of the Coordinator-General
2. Costs are reserved.
As regards General Application filed in the Court on 8 June 2012 regarding discovery:
1. The further hearing in this matter be adjourned to a date to be fixed; and
2. Costs are reserved.
P A SMITH
MEMBER OF THE LAND COURT
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