KAM KHAZALY PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2025] WASAT 134 (S)

[2025] WASAT 134 (S) Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : LAND ADMINISTRATION ACT 1997 (WA) CITATION : KAM KHAZALY PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2025] WASAT 134 (S) MEMBER : DR S WILLEY, SENIOR MEMBER HEARD : DETERMINED ON THE DOCUMENTS (SUBMISSIONS RECEIVED ON 27 MARCH 2026, 24 APRIL 2026 & 7 MAY 2026 DELIVERED : 13 MAY 2026 FILE NO/S : DR 10 of 2023 BETWEEN : KAM KHAZALY PTY LTD First Applicant SHEDAN & SHAHZAD KHAZALY PTD LTD Second Applicant AND WESTERN AUSTRALIAN PLANNING COMMISSION Respondent Catchwords: Practice and procedure - Land resumption and compensation - Costs - Applicable principles as to costs in the Tribunal - Relevant factors in the exercise of discretion as to costs - Rule 40 offers - Whether party's conduct warrants a costs order -- 1 of 31 -- [2025] WASAT 134 (S) Page 2 Legislation: COVID-19 Response and Economic Recovery Omnibus Act 2020 (WA), s 33(3)(a) Land Administration Act 1997 (WA), s 177, s 178, s 220, s 241, s 241(2), s 241(6), Pt 9, Pt 10 Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 191 State Administrative Tribunal Act 2004 (WA), s 9, s 16, s 87, s 87(1), s 87(2), s87(3), s 87(4), s 87(5), s 89, Pt 4, Div 5 State Administrative Tribunal Rules 2004 (WA), r 40, r40(2), r 40(4), r 41, r 42, r 42(1), r 42(1)(c), r 42(2), r 43, Div 5, Div 6 Result: Application for costs dismissed Category: B Representation: Counsel: First Applicant : N/A Second Applicant : N/A Respondent : N/A Solicitors: First Applicant : Lavan Second Applicant : Lavan Respondent : State Solicitor's Office Case(s) referred to in decision(s): Avila and Main Roads Western Australia [2023] WASAT 79 Banno v Commonwealth of Australia (1993) 45 FCR 32; (1993) 81 LGERA 34 Calderbank v Calderbank (1975) 3 All ER 333 Clifford and Shire of Busselton [2007] WASAT 89 (S); (2007) 52 SR (WA) 58 DBW Reynolds Pty Ltd as trustee for The DBW Reynolds Family Trust v Public Transport Authority [2023] WASC 165 -- 2 of 31 -- [2025] WASAT 134 (S) Page 3 Director of Buildings & Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111; [1995] 1 All ER 846 Electricity Networks Corporation T/As Western Power and Bombara [2021] WASAT 141 (S) George D Angus Pty Ltd v Health Administration Corp [2013] NSWLEC 212; (2013) 205 LGERA 357 Jandakot Capital Pty Ltd and Commissioner of Main Roads [2024] WASAT 90; (2024) 115 SR (WA) 201 Kam Khazaly Pty Ltd and Western Australian Planning Commission [2025] WASAT 134 Minister v New South Wales Aerated Water & Confectionary Co Ltd [1916] HCA 48; (1916) 22 CLR 56 Minister, The v NSW Aerated Water & Confectionery Co Ltd (1916) 22 CLR 56; (1916) 23 ALR 10 Oasis @ Newman Pty Ltd and Shire of East Pilbara [2025] WASAT 136 Peter Croke Holdings Pty Ltd v Roads and Traffic Authority of NSW (1998) 101 LGERA 30 Petsos and Judd [2025] WASAT 26 (S) Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41; (2019) 99 NSWLR 279; (2019) 236 LGERA 389 Scutti v City of Wanneroo [2018] WASCA 175; (2018) 53 WAR 417 Secretary to the Department of Transport v Provan's Timber Pty Ltd [2020] VSCA 210 Tah Land Pty Ltd v Western Australian Planning Commission [No 3] [2023] WASC 35 Tempe Recreation (D500215 and D1000502) Reserve Trust v Sydney Water Corp [2014] NSWCA 437; (2014) 88 NSWLR 449 Walker Corp Pty Ltd v Sydney Harbour Authority [2008] HCA 5; (2008) 233 CLR 259 Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81 Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7; (2017) 259 CLR 106 -- 3 of 31 -- [2025] WASAT 134 (S) Page 4 REASONS FOR DECISION OF THE TRIBUNAL: 1 On 28 November 2025, I delivered my reasons in Kam Khazaly Pty Ltd and Western Australian Planning Commission (Primary Judgment),1 where I determined that Kam Khazaly Pty Ltd (Applicant) was eligible to make a claim compensation from the Western Australian Planning Commission (WAPC or Respondent) for the acquisition of its leasehold interest (Lease) in land (Shopping Centre Land), which formed part of the Kingsway City Shopping Centre (Shopping Centre). 2 It is not in contest that following the acquisition of its Lease, under which it operated a Nando's franchise, the Applicant relocated its restaurant to the Woodvale Shopping Centre. 3 The Applicant's claim for compensation totalled $2,116,350.04 (Claim), being its costs to vacate and relocate the restaurant (as well as lost profits during the relocation period) pursuant to s 241(6) of the Land Administration Act 1997 (WA) (LA Act). However, the Applicant claimed $nil compensation for the taking of its Lease, on the basis that, at the time of its acquisition, it had no relevant market value for the purpose of s 241(2) of the LA Act. 4 Because the entirety of the Claim was for disturbance and consequential losses pursuant to s 241(6), the Applicant's case raised, in the context of this jurisdiction, a novel question of statutory construction. That question was whether compensation for 'consequential losses' is affected, or limited, by the nature and value of the interest identified for the purposes of s 241(2) of the LA Act.2 5 As is set out in the Primary Judgment, my answer to that question was 'yes'. In answering that question, I explained that compensation for consequential losses is affected, and ultimately must reflect, the nature of the interest that has been acquired under s 241(2), being the source of the compensation entitlement under the LA Act. Accordingly, I determined that the Applicant was entitled to $nil compensation, having regard to the fragile nature of its Lease, as at the point of acquisition. 6 Having succeeded in the Primary Judgment, these reasons deal with the WAPC's application for costs in the amount of $137,678.25 (Costs Application). The WAPC submits that a costs order is justified because the Applicant's Claim was beset with 'evident difficulties' and 1 Kam Khazaly Pty Ltd and Western Australian Planning Commission [2025] WASAT 134. 2 Primary Judgment [1]. -- 4 of 31 -- [2025] WASAT 134 (S) Page 5 that, on three occasions, it made without prejudice settlement offers to the Applicant, pursuant to r 40 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules), none of which were accepted. 7 Because the Applicant did not accept any of the settlement offers, the WAPC was required to expend resources commensurate with the scale, nature and significance of the Applicant's Claim. The WAPC also seeks its costs in making the Costs Application. 8 The Applicant opposes a costs order. It submits that there is no good reason to depart from the usual costs-neutral position, set out in s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Summary outcome 9 The decision I have reached is that the Costs Application should be dismissed. 10 While I decline to make a costs order, I wish to stress that I am mindful that the WAPC was the successful party in the Primary Judgment, in that I accepted its construction of s 241 of the LA Act. In addition, I have also taken account of the fact that the WAPC offered to settle the proceeding on terms more favourable than the compensation that I ultimately awarded. 11 However, by reason of the nature of the litigation, and taking account of all the relevant facts and circumstances, in the exercise of discretion, I have ultimately decided that each party should bear its own costs. 12 My reasons for that decision follow. Relevant background 13 The detailed history of this matter leading to the Claim is set out at paragraphs [15] to [64] of the Primary Judgment, which I rely on, but do not repeat. In these supplementary reasons, I adopt the same terms as in the Primary Judgment. Planning history of the Shopping Centre 14 For present purposes the following overview is sufficient. 15 In 1992, Tah Land Pty Ltd (Tah Land) and the City of Wanneroo (City) entered a Deed as an aspect of the development of the Shopping Centre. The Deed provided for the rezoning of what would become the -- 5 of 31 -- [2025] WASAT 134 (S) Page 6 Shopping Centre Land from 'Rural' to provide for commercial development. As part of these arrangements, a portion of the Shopping Centre Land was identified, at the intersection of Wanneroo Road and Hepburn Avenue, as being required regional road purposes (Intersection Land). 16 The Deed provided for the transfer of the Intersection Land to the City, subject to a lease-back arrangement for 25 years. Notwithstanding its obligations under the Deed, Tah Land never transferred the Intersection Land to the City. The Intersection Land included the land which the Applicant would ultimately come to lease. 17 As the planning for the Shopping Centre and the broader locality progressed, in 1994, the Intersection Land was reserved for 'regional road purposes' in the Metropolitan Region Scheme (MRS). 18 Despite being reserved for regional road purposes, Tah Land obtained development approval from the WAPC in 2003, allowing the Intersection Land to be used for commercial purposes, in association with the Shopping Centre (Development Approval). The Development Approval was for a fixed period, with an expiry date of 30 April 2021. By the terms of the Development Approval, Tah Land was required to cede the Intersection Land free of cost to the City.3 The Applicant's Lease 19 Tah Land initially leased two tenancies (C1 and C2) to the Applicant on premises constructed on the Intersection Land pursuant to the Development Approval. The Lease provided for an initial 5-year term with a further 5-year option, with an expiry date of 31 July 2019. 20 In 2016, the Applicant also leased tenancy C3, which together with C1 and C2, constitute the Premises the subject of the Applicant's claim. A 'further extended term' was agreed, expiring on 12 June 2021. The Taking of the Intersection Land, including the Premises 21 On 7 October 2021, the WAPC made a Taking Order pursuant to s 191 of the Planning and Development Act 2005 (WA) (PD Act) and ss 177 and 178 of the LA Act for the Intersection Land, including the land comprising the Premises the subject of the Lease (Taking). 3 Primary Judgment, [21], Development Approval, Condition 4. -- 6 of 31 -- [2025] WASAT 134 (S) Page 7 22 The Taking Order was registered by the Registrar of Titles with effect from 7 December 2022 (Taking Date). The designated purpose of the Taking was 'Primary Regional Roads - Wanneroo Road and Hepburn Avenue Intersection under the [MRS]'. The Applicant's claim, and related exchanges, between the parties 23 Both parties have filed copies of communications which inform the background to, and the making of, the Claim, and the WAPC's response thereon. 24 As I navigate through the exchanges of communications between the parties, my focus, in these reasons, is on those matters that bear on the question of costs. However, written exchanges between Lavan and the State Solicitor's Office (SSO) canvassed many issues, the Applicant's compensation entitlement being but one. 25 As I explained in the Primary Judgment, other satellite issues included the need for the WAPC to register a second taking order (being the Taking Order), the Judicial Review Application lodged by Tah Land, as well as the communications, as landlord and tenant, between the WAPC, given the Premises were still being operated as a Nando's restaurant after the Taking. 26 By reason of these satellite issues, there was a level of uncertainty as to when, even whether, the Applicant would be required to vacate the Premises, and relocate, notwithstanding the Taking. Only when the Judicial Review Application was dismissed by Smith J on 17 February 2023,4 did Tah Land cease its efforts to retain control of the Intersection Land. 27 Once the Judicial Review Application had been dismissed, Tah Land gave notice to the Applicant that it was required to vacate the Premises by 30 April 2023. I will return to discuss the relevance of these satellite issues later in these reasons. 28 The communications between Lavan and the SSO that I regard as relevant to the Costs Application, are set out below. 29 On 21 July 2021, Lavan, on behalf of the Applicant, wrote to the Respondent foreshadowing a potential future claim for compensation. 4 Tah Land Pty Ltd v Western Australian Planning Commission [No 3] [2023] WASC 35. -- 7 of 31 -- [2025] WASAT 134 (S) Page 8 30 On 15 October 2021, the SSO wrote to Lavan and inter alia enclosed forms for the making of a compensation claim. The SSO advised that, by reason of the Taking, the Applicant's interest in the Intersection Land had been converted into a right to claim compensation. The SSO letter continued that the acquiring authority was the WAPC which 'is liable for the payment of compensation payable to your client'. Once any claim was received, the WAPC 'will consider the claim and confirm whether or not you have a compensable interest, and if so, make you an offer of compensation'.5 31 The Applicant lodged the Claim (initially for $1,702,762, exclusive of GST) with the WAPC on 2 December 2021. As I have explained, the Claim was directed only to consequential losses under s 241(6) of the LA Act; no compensation was claimed for the market value of the Applicant's Lease. 32 In a letter from the SSO dated 9 September 2022, the nature of the Lease was discussed, including that as at the Taking Date, its interest subsisted only as a right to holdover, requiring only one month's notice and with no expectation that it would be renewed.6 For that reason, the WAPC considered that the Applicant's Lease had a $nil value. 33 In a letter dated 3 November 2022, Lavan observed that, by its express terms, s 241 of the LA Act does not provide that costs associated with the 'reinstatement of a business' will not be recoverable in some instances, depending on the scope or nature of the interest. Lavan requested the SSO direct it to any statutory provision or case law that suggested otherwise.7 34 In a letter dated 22 November 2022, the SSO explained that the Applicant had not demonstrated loss of a compensable kind, in view of the nature of its Lease of a portion of the Intersection Land, as at the Taking Date. Significantly, the SSO identified that the principle of equivalence applied; such that the WAPC, as the acquiring authority, was not expected to put the Applicant in a 'significantly better position that it would have been but for the taking'.8 In explaining its position, the SSO identifies a number of case authorities, including the High Court's decision in Minister v NSW Aerated Water & Confectionary Co Ltd,9 5 Affidavit of Isabel Adair Bartle, 15 April 2026, pages 9 to 11 (Bartle Affidavit). 6 Respondent's Further Supplementary Bundle of Documents (27 March 2026), pages 21 and 22. (Respondent's Costs Bundle). 7 Bartle Affidavit, pages 21 to 24. 8 Respondent's Costs Bundle, pages 23 and 24. 9 Minister v New South Wales Aerated Water & Confectionary Co Ltd [1916] HCA 48; (1916) 22 CLR 56. -- 8 of 31 -- [2025] WASAT 134 (S) Page 9 as well as the Privy Council's decision in Director of Buildings & Lands v Shun Fung Ironworks Ltd (Shun Fung).10 35 In a letter dated 30 November 2022, Lavan took issue with the cases on which the SSO had referred to in its letter of 22 November 2022, explaining that the cases do not '[undermine] the quantum of [the Applicant's] compensation claim and the principles referred to in those cases do not support many of the assertions made in your letter'.11 The overarching point being made by Lavan is that but for the Taking, the Applicant's would have remained in the Premises for the foreseeable future. Lavan requested the WAPC make a formal offer of compensation, noting that the Applicant had already incurred of approximately $20,000 in relation to the Taking and the claim for compensation. The Claim is referred to, and determined by, the Tribunal 36 Notwithstanding the request in Lavan's letter of 30 November 2022, the WAPC made the Applicant no formal offer of compensation. On 19 January 2023, the Applicant referred its Claim to the Tribunal. 37 On 24 January 2023, the Applicant made a settlement offer of $1,450,000 (GST exclusive) which was open for acceptance for 14 days (First Applicant Offer).12 38 On 12 April 2023, the WAPC made an offer to settle, purportedly pursuant to r 40 of the SAT Rules for $30,000 (First WAPC Offer). The First Settlement Offer was open to be accepted until 28 April 2023. 39 On 19 May 2023, the parties attended a mediation conference in the Tribunal. 40 On 9 June 2023, the WAPC purported to make a further r 40 offer, in the amount of $60,000, which was open to be accepted until 26 June 2023 (Second WAPC Offer). 41 Between 21 July and 22 August 2023, the parties each filed their respective statements of issues, facts and contentions (SIFCs) and supporting materials in the Tribunal. 42 On 22 August 2023, the Applicant then sought, without objection, a series of adjournments to allow it time to finalise evidence as to its 10 Director of Buildings & Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111; [1995] 1 All ER 846. 11 Bartle Affidavit, pages 25 to 28. 12 Bartle Affidavit, para 18. -- 9 of 31 -- [2025] WASAT 134 (S) Page 10 Claim, and to brief senior counsel. Lavan received senior counsel's opinion on 9 January 2024, over which privilege is maintained.13 43 On 13 March 2024, Lavan wrote to the SSO on a without prejudice basis and provided a summary of both the costs that had been incurred to date, as well as further anticipated costs. 44 On 2 May 2024, the Tribunal made further programming orders which resulted in each party filing amended SIFCs, as well as more supporting materials. 45 On 9 June 2023, the SSO wrote a detailed letter to Lavan which inter alia, again, emphasised the principle of equivalence in compensation cases, as explained by the Privy Council in Shun Fung. The SSO explained that the application of that principle had the result that, because the Lease had no market value, the Applicant's claim for disruption and reinstatement of its business was not compensable.14 46 On 12 June 2024, the Applicant made the WAPC a further settlement offer of $1,650,000 (GST exclusive) (Further Applicant Offer). 47 On 19 September 2024, a further mediation conference was held in the Tribunal. 48 The matter was listed for a special appointment in the Tribunal on 25 October 2025, at which the matter was programmed to a final hearing. 49 On 12 November 2024, the WAPC purportedly made a further r 40 offer, in the amount of $120,000 (Final WAPC Offer), which was open to be accepted until 8 December 2024. 50 On 13 January 2025, Lavan briefed senior counsel to appear at the final hearing of the matter.15 51 On 25 March 2025, the parties filed opening submissions and their respective lists of authorities. 52 The final hearing was on 8 and 9 April 2025. Neither party sought to examine any witness. The Tribunal reserved its decision. 13 Bartle Affidavit, paras 26 and 27. 14 Respondent's Costs Bundle, pages 29 to 32. 15 Bartle Affidavit, para 36. -- 10 of 31 -- [2025] WASAT 134 (S) Page 11 53 The reasons for decision in the Primary Judgment were published on 28 November 2025. The Applicant was awarded $nil compensation. Submissions in support of the Costs Application 54 In support of its Costs Application, the WAPC has filed both Costs Submissions,16 and Submissions in Reply on Costs.17 55 The WAPC submits that its costs in the matter exceed $200,000, however it only seeks costs of $137,678.25. Such costs have been calculated from the date it made the First Settlement Offer. 56 The WAPC's Costs Application is supported by an affidavit of Mr Vincent McMullen,18 the SSO solicitor with carriage of the matter. Mr McMullen's affidavit includes a Bill of Costs prepared pursuant to rates applicable in the Legal Profession (State Administrative Tribunal) Determination 2022, and from 13 June 2024, the Legal Profession (State Administrative Tribunal) Determination 2024 (Bill of Costs). 57 The gravamen of the WAPC's Costs Application was that it, on more than one occasion, both before and after the referral to the Tribunal, advised the Applicant of the significant legal issues confronting its Claim. In its letter dated 9 June 2023,19 the WAPC referred, again, in detail to the principle of 'equivalence' and to the Court of Appeal authorities in Roads and Maritime Services v United Petroleum Pty Ltd (United Petroleum),20 and Secretary to the Department of Transport v Provan's Timber Pty Ltd (Provan's Timber),21 which I ultimately referred to in detail in the Primary Judgment. 58 The WAPC also notes that, during the proceedings, two decisions within the jurisdiction were published that confirmed its interpretation of the applicable statutory framework under the LA Act. The first of these was the decision of Martin J in DBW Reynolds Pty Ltd v Public Transport Authority (DBW Reynolds),22 the second was my 16 Respondent's Costs Submissions, 27 March 2026(Respondent's Costs Submissions). 17 Respondent's Submissions in Reply on Costs, 7 May 2026, are directed to an issue which, given my decision to dismiss the Costs Application, need not be addressed in these reasons. 18 Affidavit of Vincent Michael McMullen, 27 March 2026. 19 Respondent's Further Supplementary Bundle of Documents (27 March 2026), pages 29 to 32 (Further Bundle). 20 Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41; (2019) 236 LGERA 389. 21 Secretary to the Department of Transport v Provan's Timber Pty Ltd [2020] VSCA 210 (the Court). 22 DBW Reynolds Pty Ltd as trustee for The DBW Reynolds Family Trust v Public Transport Authority [2023] WASC 165. -- 11 of 31 -- [2025] WASAT 134 (S) Page 12 decision in Jandakot Capital Pty Ltd and Commissioner of Main Roads (Jandakot Capital).23 59 The purpose of a costs order is not to punish, but to compensate or reimburse a party for the expenses incurred in relation to a proceeding.24 60 By reference to the applicable principles, the WAPC submits that while there is no presumptive position that costs will follow the event in the Tribunal, the relevant question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The WAPC accepts that it bears the onus to demonstrate why a costs order is appropriate.25 61 The WAPC submits that r 40 offers that comply with r 40 and r 41 of the SAT Rules, are a mandatory relevant consideration in relation to an application for costs. While the weight that may be given to the settlement offer is a matter for the decision-maker in each instance, its significance will be influenced by the evident legislative intent that, where possible, parties to a proceeding should endeavour to reach a settlement.26 62 The WAPC submits that the factors that include towards a costs order being made include: (1) The Applicant's preferred construction required s 241(6) of the LA Act to be read and applied in isolation of the remaining subsections of s 241, disregarding the 'fundamental' nature of the acquired interest under s 241(2) in determining the scope and quantum of compensation. (2) The Claim disregarded the relevant factual circumstances and the planning context of the Intersection Land, including the time- limited nature of the Development Approval and the fact that the Lease had expired and its relevant interest was a holding-over interest. (3) The Applicant's refusal to accept either the First WAPC Offer, the Second WAPC Offer or the Final WAPC Offer (together the Offers), each of which was timely, reasonable and proportionate. 23 Jandakot Capital Pty Ltd and Commissioner of Main Roads [2024] WASAT 90; (2024) 115 SR (WA) 201. 24 Questdale [51]. 25 Questdale [51]. 26 Respondent's Costs Submissions, para 26. -- 12 of 31 -- [2025] WASAT 134 (S) Page 13 In making the Offers, the WAPC advised the Applicant as to the 'legal issues concerning [its] compensation claim'.27 (4) The consequence of the Applicant failing to accept any of the Offers, and despite the 'evident difficulties' with the Applicant's construction of s 241(6) of the LA Act being pointed out, the parties 'were put to further, unnecessary, and not inconsiderable, expense' such that the matter was not dealt with efficiently, contrary to the Tribunal's objectives.28 And: (5) The Applicant's refusal to accept any of the Offers, must also be considered in the context of the applicable statutory framework and the facts found, was such that the claim of $2.1 million was not reasonable.29 63 Because the Applicant did not accept any of the Offers, the Respondent was required to commit resources commensurate with the scale and nature of the Claim. In these circumstances, it is fair and reasonable that the Respondent be reimbursed its costs, as set out in the Bill of Costs. 64 The Bill of Costs seeks costs in the amount of $137,678.25, comprising legal costs of $122,707 plus $14,971.25 in disbursements. Applicant's submissions opposing the Costs Application 65 The Applicant filed Costs Submissions opposing the making of a costs order. The Applicant submits that the WAPC's Costs Application rests on two propositions. The first being that its Offers exceeded the Tribunal's ultimate decision to award $nil compensation. The second being that it alerted the Applicant to the 'evident difficulties' with its claim, and thus put it to unnecessary expenses, such that costs should now be payable. 66 The Applicant submits that the start and end point for the Tribunal is that it is called upon, by the WAPC, to exercise its discretion on costs, taking into account the circumstances of the particular case.30 The mere fact that the Tribunal ordered the Applicant received less than the amounts specified in the Offers does not, of itself, mean that 27 Respondent's Costs Submissions, para 42. 28 Respondent's Costs Submissions, para 45. 29 Respondent's Costs Submissions, para 46. 30 Applicant's Costs Submissions, 24 April 2026, para 11 (Applicant's Costs Submissions). -- 13 of 31 -- [2025] WASAT 134 (S) Page 14 the proceeding was unjustified, and 'so should have to pay the [WAPC's] costs for the trouble and expense of defending the claim'.31 67 Following the Court of Appeal's decision in Western Australian Planning Commission v Questdale Holdings Pty Ltd (Questdale),32 there is no longer a practice in land resumption cases that costs ought to be paid by a claimant who does not better the offer made by the resuming authority.33 The refusal to accept the Offers was not unreasonable 68 As to the Applicant's decision not to accept any of the Offers, all of which exceeded the compensation that was ultimately awarded, it does not follow that the Applicant's conduct in maintain its position on its claim was unjustified, such that it should now be ordered to bear the WAPC's costs.34 69 While the Applicant accepts the Tribunal is bound to consider the Offers, in exercising its discretion as to costs, assistance can be drawn from the principles that apply to the assessment of Calderbank35 offers including, as set out by the Tribunal in Petsos and Judd,36 whether, at the time that an offer was made, its rejection was unreasonable.37 70 The Applicant's rejections of the Offers were not unreasonable given that: (a) there no binding authority on the application of s 241(6) of the LA Act, meaning that its interpretation was ultimately uncertain; (b) the propositions of law being put by the Applicant were open; and (c) the application of such principles to the evidence being adduced was contestable. 71 The fact that the construction point was novel was noted in the Primary Judgment.38 Accordingly, contrary to the WAPC's submissions, the decisions in DBW Reynolds and Jandakot Capital did not 'confirm' the Respondent's position on the proper construction and application of s 241(6).39 31 Questdale [10] (Martin CJ). 32 Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81 [8] - [9] (Martin CJ). 33 Electricity Networks Corporation T/As Western Power and Bombara [2021] WASAT 141 (S) [32]. 34 Applicant's Costs Submissions, para 13. 35 Calderbank v Calderbank (1975) 3 All ER 333. 36 Petsos and Judd [2025] WASAT 26 (S) [28]. 37 Applicant's Submissions, para 16. 38 Applicant's Submissions, para 17(a). 39 Applicant's Submissions, para 17(b). -- 14 of 31 -- [2025] WASAT 134 (S) Page 15 72 As to the Offers, each was sufficiently low that it cannot be said that the Applicant acted unreasonably in rejecting them. The case had sufficient risks for both the Applicant and the Respondent, such that it was not inappropriate nor unreasonable to progress to a short, two-day final hearing. That being the case, comparisons between the respective valuations contended for by the parties are therefore inapt, given that, as recognised on the Primary Judgment, the case was run by both parties on a 'death or glory' basis.40 73 Furthermore, the First WAPC Offer and the Second WAPC Offer were made, and lapsed, at a very early stage of the proceeding, before the parties had filed submissions and related materials. The Final WAPC Offer expired before the Respondent's valuation evidence was filed and served, meaning that in considering that offer, the value ascribed to the Applicant's interest by the expert valuers was unknown. The WAPC made no further r 40 offer.41 The Applicant's case was not beset with 'evident difficulties' 74 The Applicant rejects the WAPC's submission that there were 'evident difficulties' with its case. 75 The Applicant submits that the answer to the construction and application of s 241(6) of the LA Act was never going to be as simple as referring to either United Petroleum or Provan's Timber, as each arises from different statutory regimes. The complexities of each legislative regime needed to be taken account of. 76 Nor was the case answered by either DBW or Jandakot Capital. The fact that the construction of s 241(6) was addressed in the Primary Judgment over 48 paragraphs (from [238] to [286]), spanning some 8 pages, evinced the need to closely consider the meaning and application of text and context of the LA Act, taking account of the competing constructions being advanced.42 77 The fact that the Applicant failed on a contention it advanced, even its central contention, does not, of itself, indicate that it acted in a manner inconsistent with the Tribunal's objectives.43 40 Applicant's Submissions, para 17(c). 41 Applicant's Submissions, para 17(d). 42 Applicant's Submissions, para 22. 43 Applicant's Submissions, para 27. -- 15 of 31 -- [2025] WASAT 134 (S) Page 16 78 Furthermore, the Applicant conducted the proceeding that permitted the substantive merits of the case to be determined, with as little technicality as possible, in a manner that minimise the costs to the parties. This is evinced by: (a) the two-day hearing; and (b) the efficient manner in which the final hearing was conducted by the clear distilling of the issues, the relative brevity of the submissions, the absence of technical objections to the contents of documents, and the absence of any cross-examination.44 79 The Applicant submits that it conducted its case in a manner that was reasonable and disciplined. There is nothing in its conduct that would justify the exercise of discretion that it should bear the WAPC's costs.45 Costs in the Tribunal: relevant principles 80 Neither the LA Act nor the PD Act deal with litigation costs. The statutory scheme for costs in the Tribunal is set out in div 5 of pt 4 of the SAT Act, read with divs 5 and 6 of the SAT Rules. As I recently observed in Oasis @ Newman Pty Ltd and Shire of East Pilbara,46 Tribunal authorities on the principles that apply on the question of costs are now legion. SAT Act 81 In short compass, by s 87(1) of the SAT Act, the presumptive position in the Tribunal is that unless otherwise specified, parties bear their own costs. Nevertheless, pursuant to s 87(2), the Tribunal has power to make a costs order in favour of a party. 82 Pursuant to s 87(3), the discretion to make a costs order includes the power to make an order for the payment of an amount to compensate the other party for any 'expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought'.47 Section 87(4) is not presently relevant, as it is directed to costs in the Tribunal's review jurisdiction. 44 Applicant's Submissions, para 28. 45 Applicant's Submissions, para 30. 46 Oasis @ Newman Pty Ltd and Shire of East Pilbara [2025] WASAT 136 [81]. 47 SAT Act, s 87(3). -- 16 of 31 -- [2025] WASAT 134 (S) Page 17 83 Section 87(5) provides that the SAT Rules may address the effect of settlement offers, and responses thereto, in making an order for the payment of costs by a party. 84 By s 89, the Tribunal may either make an order for the payment of costs, fixing in the amount of costs or otherwise is to be assessed or settled in accordance with r 43 of the SAT Rules. SAT Rules 85 Division 5 of the SAT Rules, comprising r 40 and r 41, deals with 'settlements'. 86 Rule 40 of the SAT Rules provides for the making of settlement offers, either with or without prejudice. A party may make more than one offer. If an offer provides for the payment of money, the offer must specify the amount of money to be paid and when and how that money is to be paid.48 87 Rule 41 is directed to the acceptance of settlement offers. It provides inter alia that a settlement offer must be open for acceptance for any period, but not less than 14 days.49 88 Division 6 of the SAT Rules is headed 'costs'. 89 The effect of r 42(1) is that r 42 applies where: (a) an offer is made in writing to settle a proceeding that arises in the Tribunal's original jurisdiction; and (b) that offer is not accepted within the time specified in the offer; and (c) the offer complied with rr 40 and 41; and (d) the Tribunal forms an opinion that the orders ultimately made are not more favourable than the terms of the offer. 90 If r 42 applies, the Tribunal is to, in determining the costs that may be awarded, take into account that the party did not accept an offer more favourable than the Tribunal's order.50 48 SAT Rules, r 40(4). 49 SAT Rules, r 40(2). 50 SAT Rules, r 42(2). -- 17 of 31 -- [2025] WASAT 134 (S) Page 18 91 Rule 43 provides that if the Tribunal does not, in making an order for costs, fix the amount payable, that amount is to be assessed or settled by the executive officer or a member of the Tribunal nominated by the President. Direction from the Court of Appeal: Questdale 92 In my view, the Court of Appeal's decision in Questdale is of particular significance in this proceeding. 93 As in this case, Questdale involved a claim for compensation arising from the acquisition of an interest in land, and a subsequent application by the acquiring authority for its costs. In Questdale, the claimant withdrew from the Tribunal proceeding, and the WAPC sought its costs thrown away. That application was dismissed. The WAPC appealed to the Court of Appeal. 94 In separate reasons, both Martin CJ51 and Murphy JA52 noted that, following the decision of (then) Barker P in Clifford and Shire of Busselton (Clifford),53 a practice had emerged in the Tribunal, in cases dealing with compensation following the resumption of land, whereby costs orders were routinely made against the 'unsuccessful' party. 95 Murphy JA cautioned that to the extent that Clifford had been taken as establishing a practice in the Tribunal of costs following the event in land compensation cases, it should not be followed.54 The starting point, even in land compensation cases, is s 87(1), being the general presumptive position that each party will bear its own costs.55 96 In Questdale, Murphy JA, undertook a detailed review of the statutory scheme for costs under the SAT Act.56 A brief overview of that analysis follows. 97 The implication arising from the power to award costs in s 87(2) of the SAT Act, is that the discretion to award costs should be exercised 'if it is fair and reasonable in all of the circumstances of the case to do so'.57 However, the effect of s 87(1) is that, unlike in curial litigation, there is no presumptive position that costs follow the event. Given the starting 51 Questdale [8] (Martin CJ). 52 Questdale [62] (Murphy JA). 53 Clifford and Shire of Busselton [2007] WASAT 89 (S); (2007) 52 SR (WA) 58. 54 Questdale [62] (Martin CJ and Corboy J, agreeing). 55 Questdale [49]. 56 Questdale [46] to [65]. 57 Questdale [49]. -- 18 of 31 -- [2025] WASAT 134 (S) Page 19 point is, in all instances, s 87(1), the onus is on the party seeking an order in its favour. 98 The legislative premise which informs the construction of s 87(2) is that an order for costs is not to punish the person against whom a costs order is made, but to compensate or reimburse the person in whose favour it is made. That rationale is also evident in the terms of s 87(3) of the SAT Act. 99 In exercising its original jurisdiction, the matter is to be dealt with in accordance with the SAT Act and, relevantly, the LA Act.58 The LA Act enables a dispossessed owner to refer their claim to the Tribunal, a forum where the presumptive position is that each party will bear its own costs. 100 In an application for costs by a responsible authority in land compensation cases, it will be relevant to consider whether the claimant's conduct impaired the attainment of the Tribunal's objectives to have the proceeding determined fairly and in accordance with the substantial merits, with as little formality and technicality as possible, and in a way which minimises the costs to the parties. 101 The mere fact that a landowner ultimately fails on some, or indeed all, of the contentions it advances is not, of itself, demonstrative that their conduct has been inconsistent with the Tribunal's objectives set out in s 9 of the SAT Act. 102 Leaving to one side the matters specified in div 5 of pt 4 of the SAT Act, the factors that the Tribunal are required to take into account, or are otherwise precluded from taking account of, fall to be determined by implication from the subject matter, scope and purpose of the SAT Act. 103 In circumstances where a more favourable r 40 settlement offer, being an offer that complies with r 40 and r 41, has been made, that will, by r 42(2), become a mandatory consideration in the discretion as to costs. The fact that a more favourable settlement offer was rejected will need to be considered in the context of the objectives set out s 9 of the SAT Act, and the evident legislative intent that parties should endeavour to consider settlement options. 58 SAT Act, s 16. -- 19 of 31 -- [2025] WASAT 134 (S) Page 20 104 Accordingly, there is no scope for a conclusion that the statutory scheme for costs under the SAT Act evinces an intention that the discretion as to costs will ordinarily be exercisable to require a claimant to pay costs, if it does not establish a value for their claim exceeding that which was offered by the responsible authority. Disposition of the Costs Application 105 I accept that the basis on which the WAPC presses its Costs Application is not without merit. It was the successful party, and it made the settlement Offers, each of what exceeded the compensation that I ultimately awarded. 106 However, for the following nine reasons, in the exercise of discretion, the Costs Application should be dismissed. 107 Firstly, as was made plain in Questdale, the nature of the dispute informs the discretion as to costs. In this matter, the WAPC compulsorily acquired the Applicant's Lease for the purpose of the MRS, namely the upgrade of the Wanneroo Road and Hepburn Avenue intersection. In doing so, the WAPC terminated the Applicant's Lease on behalf of the broader public purpose underlying regional road upgrades. It is not without significance that the Lease, feint as it was, did not end by the Applicant's volition; rather it was compulsorily acquired by the WAPC. 108 As was explained by Wilcox J in Banno v Commonwealth of Australia (Banno),59 a proceeding that follows the compulsory acquisition of land is not 'ordinary litigation'. But for the WAPC's decision to proceed with the Taking, there is no relevant relationship between the parties that would give rise to the need to litigate. The Tribunal proceeding followed the unilateral decision of the WAPC to acquire the Lease, in order to satisfy the public need to upgrade the regional road network. The Taking resulted in the Applicant having to vacate the Premises, and to relocate its business in circumstances where, as I will come back to, it was being offered $nil compensation for the loss of its Lease. 109 The Applicant found itself in a position where it could either accept the WAPC's assessment that it was owed nothing, or instead seek, as it did, to have that assessment carried out independently by the Tribunal. These circumstances are not dissimilar to those in Banno,60 where Wilcox J reasoned that it was, perhaps, not unreasonable to allow 59 Banno v Commonwealth of Australia (1993) 45 FCR 32; (1993) 81 LGERA 34, 53. 60 Banno, 53. -- 20 of 31 -- [2025] WASAT 134 (S) Page 21 affected landowners access to the courts, to present arguable cases as to the value of their interest that has been acquired, without having to face the prospect of an adverse costs order, should their case prove to be unpersuasive. 110 Secondly, and following on from above, the statutory scheme for compulsory acquisition and compensation in this State, as set out in pts 9 and 10 of the LA Act, provides a choice for claimants to determine the compensation payable. By s 220 of the LA Act, a claimant may, relevantly, commence an action for compensation in the Supreme Court or refer the claim to the Tribunal. As was emphasised in Questdale, and is the case here, it is relevant that the Applicant chose to refer its Claim to the Tribunal, where the starting point is each party will bear their own costs. 111 Thirdly, the facts in this case are significant and, in my view, also bear upon the question of costs. As I set out in the Primary Judgment, the Applicant's leasing of the Premises was a commercial success. Unsurprisingly, it wanted to continue its Lease. The evidence in the Primary Judgment evinces that Tah Land wanted to retain ownership of the Intersection Land, and to enter a new lease for the Premises, notwithstanding its obligations under the Development Approval and the Deed.61 112 As set out in the Primary Judgment,62 Tah Land lodged the 2021 Intersection Land DA to retain ownership and control of the Intersection Land. It also agitated that the May Taking Order was invalid (which the WAPC ultimately accepted) which necessitated the (second) Taking Order being issued on 7 October 2021.63 Furthermore, Tah Land then lodged the Judicial Review Application of the Taking Order, which was not disposed of by the Supreme Court until 17 February 2023. The extension of the term of the Development Approval to April 2023, by reason of the COVID-19 Response and Economic Recovery Omnibus Act 2020 (WA) (COVID-19 Act),64 also served to complicate matters.65 113 While the further lease term expired on 12 June 2021, the Applicant remained in occupation of the Premises on a holding over basis, all the while awaiting the outcome of Tah Land's 2021 Intersection Land DA 61 Primary Judgment [212]. 62 Primary Judgment [36] to [39]. 63 Primary Judgment [41] to [44]; [48] - [49]; [54] - [55]. 64 COVID-19 Act, s 33(3)(a). 65 Primary Judgment [32] to [35]. -- 21 of 31 -- [2025] WASAT 134 (S) Page 22 and Judicial Review Application, and in reliance on the extension to the Development Approval premised on the COVID-19 Act. The Applicant's decision to remain in the Premises, while it awaited the outcome of Tah Land's considerable efforts to retain control of the Intersection Land cannot, in all the circumstances, be regarded as anything but reasonable. 114 Furthermore, it is not without significance that the Applicant was not a party, nor was it privy, to Tah Land's extensive legal manoeuvring and long history of negotiations with the WAPC over the future of the Intersection Land, yet it was very much hostage to them. 115 As events transpired, the Judicial Review Application was dismissed, Tah Land withdrew the 2021 Intersection Land DA, and the Taking Order was ultimately registered. In the result, Tah Land was wholly unsuccessful in its efforts to retain control of the Intersection Land, and the Applicant's Lease proved to have been lawfully acquired, such that it was required to vacate the Premises. Not only were the Khazaly family, the controlling mind of the Applicant, having to process all those events, all of which were significant in planning for the future of their family business; at the same time the WAPC was offering $nil compensation.66 116 True it is that, as at the Taking Date, the Applicant's Lease subsisted only on holding over basis, and was therefore very feint, such that, on a proper assessment, $nil compensation was payable under the LA Act. However, the question of costs is different. As was the case in Banno, the Applicant could accept it was owed $nil compensation or seek to refer the question for independent assessment by the Tribunal. 117 Taking account of the facts set out above, I have considerable sympathy for the position the Applicant found itself in, and its decision to refuse to accept that the State owed it $nil compensation for the acquisition of its Lease. 118 Fourth, the Applicant's case was not unarguable. Section 241 is beneficial legislation and is required, ordinarily at least,67 to be construed with all the generality that the words permit.68 66 Respondent's Costs Bundle, page 21. 67 Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7; (2017) 259 CLR 106 [55] (Kiefel and Bell JJ). 68 Scutti v City of Wanneroo [2018] WASCA 175; (2018) 53 WAR 417 [135] (the Court). -- 22 of 31 -- [2025] WASAT 134 (S) Page 23 119 I accept the Respondent's submissions that Jandakot Capital, delivered while the proceeding was on foot, set out that the provisions of s 241 of the LA Act are to be read and applied together, and that s 241(2) operated as a 'gateway' provision. However, I also accept the Applicant's submission that the analysis in Jandakot Capital supported, but did not definitively answer, the construction question raised in this matter. Nor did DBW Reynolds. 120 Here, the Applicant held a compensable interest in land for the purposes of s 241(2), but which did not have any residual market value as at the Taking Date. Accordingly, the question the Applicant asked was whether the monetary value of its interest affects how consequential losses are then assessed under s 241(6). In this jurisdiction, the relationship between these two aspects of s 241 had not been directly considered, particularly in the context of a business operating under a leasehold arrangement. Hence the need for both parties, and ultimately the Tribunal, to consider the approaches taken in other jurisdictions, applying different legislative regimes. 121 In saying that, I do accept the Respondent's submissions that, in its exchanges with Lavan throughout the proceeding, it had identified what was a significant weight of authority from the High Court,69 and the Courts of Appeal in both New South Wales70 and Victoria71 on the assessment of compensation for leasehold interests, which, considered together, inclined against the construction being advanced by the Applicant. 122 However, against this, as has been reiterated by the High Court in Walker Corporation Pty Ltd v Sydney Harbour Authority,72 in the context of land compensation statutes, the terms of the statute remain paramount, and care needs to be taken in assuming that such terms seek to reproduce or reflect principles emanating from other jurisdictions. Furthermore, each case must always be assessed in the light of its own facts. 123 The question raised by the Applicant was not straightforward, nor was the answer immediately apparent. The question required close, careful and detailed consideration of both the facts as well as the terms of s 241 of the LA Act, and consideration of a wide range of authorities, 69 Minister, The v NSW Aerated Water & Confectionery Co Ltd (1916) 22 CLR 56; (1916) 23 ALR 10. 70 Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41; (2019) 99 NSWLR 279; (2019) 236 LGERA 389. 71 Secretary to the Department of Transport v Provan's Timber Pty Ltd [2020] VSCA 210 (the Court). 72 Walker Corp Pty Ltd v Sydney Harbour Authority [2008] HCA 5; (2008) 233 CLR 259 [47] (the Court). -- 23 of 31 -- [2025] WASAT 134 (S) Page 24 several of which went in the Applicant's favour,73 including Preston CJ's decision in George D Angus Pty Ltd v Health Administration Corporation.74 124 As the Applicant also observes, the WAPC's claim that the construction of s 241(6) of the LA Act was sufficiently straightforward to make the Applicant's decision to press its claim unreasonable, stands in contrast to its Bill of Costs, which indicates that SSO spent over 140 hours, almost three full weeks, researching the applicable law.75 125 Fifth, I am not at all satisfied that the Applicant acted in a manner that impended the Tribunal achieving the objectives set out in s 9 of the SAT Act. The final hearing was completed comfortably within 2 days, and the parties agreed that there need be no examination of witnesses, as the contest between the parties was ultimately a question of statutory construction. In the Primary Judgment, I commended all counsel for the efficient and professional manner in which the final hearing was conducted. 126 In the language of Banno, I am satisfied that the Applicant presented an arguable and well-organised case outlining its construction of s 241 of the LA Act. 127 Sixth, this is not a case where it can be said that the Applicant's estimate of the extent of its loss, and the quantum of its Claim, were grossly exaggerated. Nor is this a case where an affected claimant has presented a case urging a highly inflated, and unrealistic, valuation of their land so as to require a lengthy hearing, contested evidence and detailed submissions thereon. This is a long way from that. 128 In this case, the Applicant was, in fact, required to vacate the Premises and find an alternate location. In the Primary Judgment, I accepted the Applicant had incurred the expenses it incurred in doing so.76 From the Applicant's perspective, the WAPC took the Intersection Land, and hence it was responsible for the fact that it could no longer lease the Premises, forcing it to relocate. The WAPC disputed that it was, by the terms of the LA Act, liable to pay the Applicant any 73 See for example, Peter Croke Holdings Pty Ltd v Roads and Traffic Authority of NSW (1998) 101 LGERA 30 (Bignold J). 74 George D Angus Pty Ltd v Health Administration Corp [2013] NSWLEC 212; (2013) 205 LGERA 357 (Preston CJ). 75 Applicant's Submissions, para 24. 76 Primary Judgment [306]. -- 24 of 31 -- [2025] WASAT 134 (S) Page 25 relocation costs. That, in effect, was the beginning, and the end, of the contest as between the parties. 129 The question for me was ultimately one of statutory construction. That constructional choice centred on the relationship between s 241(2) and s 241(6) of the LA Act. Accordingly, I was presented with, in effect, what has elsewhere been labelled a 'binary issue of construction' as between the parties. 130 On that, the Court of Appeal of New South Wales has had occasion to consider costs applications from acquiring authorities where the assessment of compensation turned on a question of statutory construction. In Tempe Recreation (D.500215 and D.1000502) Reserve Trust v Sydney Water Corporation (Tempe Recreation),77 Leeming JA (Basten and Emmett JJA agreeing) explained that it would distort the intent of the making of offers of compromise, if acquiring authorities were to make a low settlement offer such that it put a claimant in something of a pincer, in that the claimant would then run the risk of a large adverse cost order, especially in circumstances where the contest was a 'binary' question of construction. 131 In Questdale,78 by reference to Leeming JA's analysis in Tempe Recreation above, set out that: It follows from the foregoing that where, in proceedings of the present kind commenced by a landowner, a preliminary issue is raised for determination upon which the responsible authority succeeds, there remains no scope for the application of the rule in ordinary litigation that costs follow the event. Any question of costs in that circumstance would involve a consideration of the nature of the preliminary issue, the applicant's conduct, and all the circumstances of the particular case. 132 In the Primary Judgment, the quantum of the Claim was only relevant to the extent that the Respondent submitted, and which I ultimately accepted, that it was inordinately high, as against the fragile nature of its leasehold interest as at the Taking Date. 133 Beyond that, the detail of the Claim was not relevant to my decision. However, it needs to be borne in mind that I only reached the view that it was an inordinate claim, after I concluded that consequential damages under s 241(6) must be assessed in the light, and reflect the nature, of the interest acquired under s 241(2) of the LA Act. That is, it was a 77 Tempe Recreation (D500215 and D1000502) Reserve Trust v Sydney Water Corp [2014] NSWCA 437; (2014) 88 NSWLR 449 [103]. 78 Questdale [61]. -- 25 of 31 -- [2025] WASAT 134 (S) Page 26 conclusion reached only after I had answered the 'fundamental issue' of statutory construction, put forward by the parties. 134 Seventh, one of the central planks in the Costs Application was the Applicant's decision to refuse to settle based on any of the Offers. 135 By r 42(2) of the SAT Rules, the Tribunal is required to take into account that the party against whom a costs order is sought, refused to settle on the basis of a settlement offer that was more favourable than the Tribunal's final order. That is, r 42(2) makes the refusal of the settlement offer under r 40, a mandatory consideration in the exercise of discretion as to costs under the SAT Act.79 136 However, based on the information before me, neither the First WAPC Offer, the Second WAPC Offer nor the Final WAPC Offer, complied with r 40 of the SAT Rules. Rule 40(4) requires that where an offer to settle a proceeding is made which provides for the payment of money, the offer must specify both the amount to be paid and 'when and how it is to be paid'. 137 Each of the WAPC's Offers involved the payment of money. Yet each provided that 'settlement would be by way of a dismissal … immediately upon the payment of the compensation sum'. However, none of the offers include details as to when the payment of money would be made following acceptance of the offer nor how such payment would be facilitated. 138 Now, of course, I am mindful of the objectives set out in s 9 of the SAT Act, including the requirement 'to act with as little formality and technicality as is practicable'. However, against this, the SAT Rules set out the requirement for the making of settlement offers in clear and precise terms. The word 'must' within r 40(4) operates as an imperative requirement in the making of an offer for settlement that involves the payment of money. The Offers are each, by the terms of r 40 of the SAT Rules, incomplete, because none of them specify when and how the amount being offered to settle would be paid. 139 As is made plain by r 42(1)(c), and as was emphasised by Murphy JA in Questdale,80 only where an offer complies with r 40 and 41, does it become a mandatory consideration for the purposes of r 42(2) of the SAT Rules. 79 Questdale [59] (Murphy JA). 80 Questdale [47]. -- 26 of 31 -- [2025] WASAT 134 (S) Page 27 140 More significantly though, in this case the Costs Application is for almost $140,000 in costs, which, on any view, is a substantial amount. For a claimant who has been dispossessed of its Lease, and then been awarded $nil compensation, it will be even more significant. In such circumstances, if the WAPC intends to rely on the Offers in pressing its Costs Application, it is perhaps not unreasonable to expect faithful compliance with the requirements of the SAT Rules. 141 Nevertheless, while I do not regard the Offers as being compliant with r 40, it is still the case, and it is still relevant, that the Respondent did offer to settle the matter on terms more favourable than the compensation I ultimately awarded. 142 However, the fact that the WAPC offered more than was ultimately awarded needs to be viewed in the light of the full facts and circumstances of the case, including those I have recited above at [111] to [116]. Within this background, I pay particular regard to the fact that even though the Applicant was being required to vacate the Premises and relocate, the Respondent was, at the same time, steadfastly maintaining it owed $nil compensation. The simple fact that the Applicant, an otherwise eligible claimant under the LA Act, was progressing its Claim in the face of an offer of $nil compensation, distinguishes this case from all the relevant case authorities known to me, both within this jurisdiction and elsewhere. 143 Accordingly, unlike other compensation cases that are litigated to a final hearing, the question posed by the Applicant was not immediately directed to matters informing the quantum of compensation payable. Rather, in this case, the Applicant instead had to immediately confront the anterior question of whether its interest, although recognised at law as being compensable, was such that it was entitled to any compensation under the LA Act. The WAPC was steadfastly denying the Applicant's Lease entitled it to a compensation payment. 144 Only if the Applicant could first demonstrate its entitlement to access the compensation scheme provided for in s 241 of the LA Act, would the elements of its Claim for consequential damages then fall to be evaluated. The Applicant's circumstances were such that it, reasonably in my view, engaged lawyers to advise on the applicable statutory regime relating to compensation, as it applied to its circumstances, including its Lease. -- 27 of 31 -- [2025] WASAT 134 (S) Page 28 145 That was not a straightforward task, as the WAPC's Bill of Costs on which it now relies, makes clear. Accordingly, the First WAPC Offer (of $30,000) and the Second WAPC Offer (of $60,000) were such that it was not unreasonable for the Applicant to decline to settle on that basis. 146 The Final WAPC Offer was different. The offer of $120,000 was a substantial offer. However, the contest that was apparent between the parties was a question of a statutory construction. For my part, while the construction being contended for by the WAPC was, in my view, more orthodox, logical and sound, I reiterate that the Applicant is correct when it observes that the question it raised had not yet been addressed, at least directly, in this jurisdiction. 147 As I have already stated, this was not a case where the Applicant pressed on with wildly unrealistic evidence and speculative opinions as to the value of its interest that had been acquired, resulting in conduct that infringed the objectives in s 9 of the SAT Act. 148 Rather, the Applicant's case was simple and logical: it had an interest that the WAPC acquired, meaning it had to vacate and relocate. While its Lease has lapsed as at the Taking Date, and subsisted only on a holding over basis, from the Applicant's standpoint, the only reason the Lease had lapsed is because of the WAPC's decision to acquire the Intersection Land. 149 Section 241(6) expressly provides that regard is to be had to losses or damage arising from inter alia removal expenses and disruption as well as reinstatement of a business. From the Applicant's perspective, I can understand why it maintained its view that the WAPC owed it compensation for its costs in vacating the Premises and relocating to Nando's Woodvale. 150 The Final WAPC Offer, while substantial, would not, on any view, have covered anything near the costs the Applicant had, by that time, endured by reason of the Taking, including obtaining legal representation, detailed advice from both Lavan and senior counsel and attendance at two mediation conferences. Added to this would be the considerable costs involved in vacating the Premises and relocating to Woodvale. In these circumstances, I am satisfied, and I find, that it was not unreasonable for the Applicant to press on to a final hearing to resolve the construction of s 241(6) of the LA Act. In doing so, I find it was not unreasonable for the Applicant to decline to settle based on the Final WAPC Offer. -- 28 of 31 -- [2025] WASAT 134 (S) Page 29 151 Eighth, as was the case in Avila and Main Roads WA,81 I am mindful that the Applicant was not a volunteer to its Lease being acquired. More than that, it is in the position where it has been made to compulsorily yield its Lease, for the benefit of the broader public interest in upgrading the regional road network. It is also not without significance that the Applicant is not a corporate titan; it is a family business that runs a restaurant.82 152 One can only imagine the disruption, uncertainty and ultimately, expense, the Applicant (the Khazaly family) has had to endure throughout these events, at the end of which it has not only had to relocate its business, but in the process of doing so, has also been awarded $nil compensation. I take account of all these matters, in the exercise of my discretion as to costs. 153 Ninth, contrary to the WAPC's submissions, I am not satisfied that Clifford has any comparative value to the question of costs.83 The final hearing in Clifford was conducted over 4 days and involved, but was not limited to, both contested town planning and valuation evidence. The claimant's case for $850,000 for the acquisition of its private right- of-way failed on the evidence it had adduced.84 154 That is a long way from the manner in which the final hearing was conducted in this case, which involved no examination of witnesses nor any objections to evidence. Here, both parties focused squarely on the question of statutory construction in contest. Conclusion 155 This has been a somewhat difficult decision. I accept and acknowledge there is considerable force to the WAPC's Costs Application. It was the successful party, and it made the Offers to settle, all of were on terms far more favourable than the $nil compensation that was ultimately awarded. 156 However, in accordance with the direction given in Questdale, I have reflected, in some detail and at some length, on the facts and circumstances of this case. The fact that the WAPC was successful 81 Avila and Main Roads Western Australia [2023] WASAT 79 [265]. 82 Primary Judgment [289]. 83 Respondent's Costs Submissions, para 43. 84 Clifford [4], [123]. -- 29 of 31 -- [2025] WASAT 134 (S) Page 30 and the Offers it made which were not accepted, is of course relevant, but not determinative in the exercise of my discretion as to costs. 157 To conclude, in short compass, in circumstances where $nil compensation was being offered, and where the case ultimately turned on a question of statutory construction, in my view it was not unreasonable for the Applicant to contest the WAPC's interpretation of s 241 and its assessment of compensation, in an independent forum; being an administrative tribunal which is ordinarily a no-costs jurisdiction. 158 The Applicant's construction of s 241 was not successful, but its argument was well-organised and presented clearly, cogently and efficiently by experienced senior counsel. The fact I found it unpersuasive is not tantamount to a finding that, in presenting its argument, the Applicant acted unreasonably. 159 Furthermore, the Applicant worked with the WAPC to conduct the final hearing in a timely and efficient manner. It did not unnecessarily lengthen the hearing and, like the WAPC, kept its focus squarely on the construction issue in contest. 160 In land compensation matters under the LA Act, claimants may, relevantly, choose to progress an action in the Supreme Court or refer the matter to the Tribunal. In the Supreme Court, costs ordinarily follow the event. However, Questdale continues to operate as a stark reminder that the presumptive position is that the Tribunal is a costs-neutral jurisdiction, unless circumstances dictate otherwise. 161 In this case, the Applicant failed in its construction of the LA Act but did not, I find, act in a manner inconsistent with the Tribunal's objectives under the SAT Act. I am not satisfied the Applicant should now be subjected to a costs order because, in effect, I did not accept its construction of s 241. 162 A party being permitted to present an arguable, well-organised and not grossly exaggerated case as to its entitlement to compensation, without the burden of a costs decision if unsuccessful is, perhaps, the precise role envisaged by the legislature for the Tribunal, as against the Supreme Court, under the LA Act. 163 It is, however, necessary to stress that this decision should not be seen as a precedent that the Tribunal does not give weight, in the exercise of discretion as to costs, to the fact that settlement offers were made and -- 30 of 31 -- [2025] WASAT 134 (S) Page 31 rejected, even where, in my view, such offers were not strictly made pursuant to r 40 of the SAT Rules. 164 While the WAPC's Costs Application has considerable force, in taking account of the facts, circumstances and nature of this case, I am not satisfied that it is fair and reasonable for the Applicant to pay costs. Rather, on balance, and in my discretion, each party should bear its own costs. Orders The Tribunal orders: 1. The Application for costs is dismissed. I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. DR S WILLEY, SENIOR MEMBER 13 MAY 2026 -- 31 of 31 --