Cidneo Pty Ltd v Chief Executive, Department of Transport and Main Roads (No 3) [2018] QLAC 9

* Pursuant to the Land Court Rules 2000, rule 21 (Power to correct mistakes), this is a corrected decision, issued on 23 November 2020, and replaces the original decision issued on 30 October 2018. LAND APPEAL COURT OF QUEENSLAND CITATION: Cidneo Pty Ltd v Chief Executive, Department of Transport and Main Roads (No 3) [2018] QLAC 9* Cidneo Pty Ltd ACN 105 454 064 (appellant) v Chief Executive, Department of Transport and Main Roads (respondent) FILE NOs: LAC No. 008-17 Land Court No. AQL325-10 DIVISION: Land Appeal Court of Queensland PROCEEDING: Appeal from the Land Court of Queensland ORIGINATING COURT: Land Court of Queensland DELIVERED ON: 30 October 2018 DELIVERED AT: Brisbane HEARING DATE: Submissions closed 17 October 2018 THE COURT: Dalton J FY Kingham, President of the Land Court PG Stilgoe, Member of the Land Court ORDERS: 1. Cidneo Pty Ltd pay the Chief Executive’s costs of and incidental to the appeal. 2. Cidneo Pty Ltd pay the Chief Executive’s costs of and incidental to the each of the original hearing and the remitted hearing in the Land Court (including reserved costs). 3. The Chief Executive pay Cidneo Pty Ltd disturbed costs in the sum of Two Hundred and Thirty-One Thousand, Five Hundred and Six Dollars and Thirteen Cents ($231,506.13). 4. The Chief Executive pay Cidneo Pty Ltd interest on the determined compensation in the sum of Eight -- 1 of 7 -- 2 Hundred and Nine Thousand, Five Hundred and Forty Dollars and Eighty-Nine Cents ($809,540.89). CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – PARTIAL SUCCESS – where the appellant claimed compensation for the resumption of land – where the appellant was ultimately unsuccessful – where the appellant argued that partial success and error in the decisions below justified a costs order other than the general rule – where costs followed the event Acquisition of Land Act 1967 s 27 Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 327 ALR 192, cited John Urquhart v Partington [2016] QCA 199, cited Yalgan Investments Pty Ltd v Shire of Albert (1997) 17 QLCR 401, cited Haber v Chief Executive, Department of Main Roads [2005] QCA 123, applied APPEARANCES: DA Quayle (instructed by Anderssen & Company), for the appellant DR Gore QC, with J Brien (instructed by Clayton Utz), for the respondent [1] DALTON J: I have read and agree with Member Stilgoe’s reasons and orders. [2] PRESIDENT KINGHAM: I agree with Member Stilgoe. [3] MEMBER STILGOE: On 24 September 2018 this Court delivered the latest decision in a long-running dispute over the amount of compensation to be paid for a resumption of land in February 2008. The appeal by Cidneo Pty Ltd was dismissed. The parties were invited to make submissions about the costs of both the appeal and the proceedings below. This is the decision on costs. Costs of the appeal [4] The starting position for the costs of the appeal is that they should follow the event; that is, that Cidneo should pay the Chief Executive’s costs. However, Cidneo contends that the circumstances of this case are unusual and an order that it pays a proportion of the Chief Executive’s costs is more appropriate. -- 2 of 7 -- 3 [5] Cidneo contends that, although it was unsuccessful in the appeal, two grounds of appeal were made out and that the decision below was infected by appellable error. It contends that a “fair outcome” would be an order that it pay 70% of the Chief Executive’s costs. [6] A court should be slow to depart from the usual rule and recent decisions did not endorse the view that a partial success on issues should justify an adjustment to the usual order. In Firebird Global Master Fund II Ltd v Republic of Nauru (No 2)1 the High Court stated:2 ... The preferable approach... is the one usually taken, that costs should follow the outcome of the appeal. This is not a case where it may be said that the event of success is contestable, I reference to how separate issues have been determined. There are no special circumstances to warrant a departure from the general rule, and good reasons not to encourage applications regarding costs on an issue-by-issue basis, involving apportionments based on degrees of difficulty of issues, time taken to argue them and the like. [7] Similarly, in John Urquhart v Partington3 the Court of Appeal said:4 …where a party has been successful in the outcome of the appeal the fact that it did not succeed on every issue or ground advanced will not usually warrant a departure from the general principle that costs should follow the outcome of the appeal. [8] Cidneo contends that, in light of the “confused state of things” after the Court of Appeal’s decision,5 and the complexity of the legal and factual terrain, success in showing error is a matter of significance which warrants a departure from the usual rule. [9] There is no doubt that there was confusion arising from the multiplicity of decisions. The confusion in the Court during the remitted proceeding arose, in part, from the submissions of the parties and the instructions given to the valuers. However, the confusion was not so unusual that it justifies a departure from the usual rule. Further, the error demonstrated by this court’s decision is not one of general significance; it was a contest between valuers, which the court often sees in cases like this. 1 (2015) 327 ALR 192. 2 (2015) 327 ALR 192 [6]. 3 [2016] QCA 199. 4 [2016] QCA 199 [10]. 5 Appellant’s Reply Submissions filed 17 October 2018. -- 3 of 7 -- 4 [10] Cidneo should pay the Chief Executive’s costs of and incidental to the appeal. Costs of the proceedings below [11] Cidneo submits that there should be no orders as to the costs of the proceedings below. The Chief Executive submits that Cidneo should pay its costs of both proceedings below because Cidneo has, from the outset, aggressively litigated and sought an unrealistic (and ultimately unsupportable) very large award of compensation. [12] Under s 27 of the Acquisition of Land Act 1967, the Land Court has a broad discretion as to costs. Section 27(2) provides that, if the amount of compensation determined by the Court is nearer to the amount claimed by the Cidneo than it is to the valuation finally put in evidence by the Chief Executive, costs shall be awarded to Cidneo. Otherwise, costs (if any) shall be awarded to the Chief Executive. [13] Cidneo referred the Court to the decision of the Land Appeal Court in Yalgan Investments Pty Ltd v Shire of Albert6 as the leading authority about the exercise of the court’s discretion. In fact, there is a more recent and binding authority in the Court of Appeal decision of Haber v Chief Executive, Department of Main Roads.7 That decision, particularly of Keane JA, confirms s 27(2) is the starting point for considering the question of costs and the Court’s discretion should be exercised in light of that starting point. [14] Nevertheless the propositions in Yalgan to which Cidneo refers are still helpful when the Court considers whether to deviate from the usual rule in s 27(2). [15] In both proceedings the Court’s award was significantly closer to the amount put forward by the Chief Executive than the amount contended for by Cidneo. By applying s 27(2), without any consideration for discretionary factors, the appropriate costs order would be that Cidneo pay the Chief Executive’s costs of both proceedings. [16] Cidneo contends that it sought and acted upon appropriate advice. It submits that the Court should accept that its claim was not exorbitant or greatly exaggerated. It further submits that its case was not presented in a way that imposed unnecessary burdens on the Chief Executive or the Court. 6 (1997) 17 QLCR 401. 7 [2005] QCA 123. -- 4 of 7 -- 5 [17] I accept Cidneo sought and relied on expert advice. I am not necessarily persuaded that Cidneo’s claim was not exaggerated, particularly in light of the Court’s comments on the evidence of Cidneo’s valuer, Mr Hamilton.8 I am also not necessarily persuaded that, after the Court of Appeal decision, Cidneo did not present its case in a way that imposed unnecessary burdens on the Chief Executive. [18] But Cidneo has not given us any cogent reason to disturb the usual position under s 27(2). The award of the Court was not close to the median amount. There were no good reasons for Cidneo’s assessment being significantly different from the Court’s award; it was simply a question of valuation. There were, of course, multiple calculations by the valuers canvassing a range of options in terms of the time required to negotiate transport infrastructure contribution (TIC), the amount of the TIC and the construction time for the proposed project, but these difficulties confronted both parties and, in my view, do not justify a departure from the usual course. [19] Cidneo submits that the issue about the actual TIC was solely the Chief Executive’s issue, and an issue on which the Chief Executive failed. Cidneo says that raising this issue put it to additional cost and expense and the Chief Executive should not recover any of its costs relating to this issue. [20] I do not agree with Cidneo’s view. While it is true that the use of the actual TIC was the Chief Executive’s issue, and raising that issue put the parties to additional expense, the Chief Executive’s view was accepted by the Court of Appeal. Therefore, it cannot be said that the Chief Executive failed on that issue. [21] Cidneo further submits that any order for costs would erode the compensation to which it is entitled and that will result in it receiving less than the proper measure of compensation. Keane JA in addressed that point in Haber:9 ... such an outcome is plainly contemplated by s 27 of the Acquisition of Land Act. No doubt the Land Court will not seek to punish dispossessed landowners merely because they have an enthusiastic view of their entitlement to compensation; but it cannot be denied that the terms of s 27 of the Acquisition of Land Act expressly create the possibility that a dispossessed landowner who persists into higher claim may be required to pay a price for that enthusiasm. This price will inevitably erode the compensation otherwise payable to that landowner. 8 Cidneo Pty Ltd v Chief Executive, Department of Transport and Main Roads (No 2) [2018] QLAC 5 [67]. 9 [2005] QCA 123 [35]. -- 5 of 7 -- 6 [22] Cidneo was not forced to litigate because of the Chief Executive’s position. Granted, there was significant disparity between its claim and the Chief Executive’s offer, but the Chief Executive’s view of the amount of appropriate compensation always fell within a narrow compass, and the amount finally awarded was close to the Chief Executive’s consistent view. Cidneo had the option of negotiating towards the Chief Executive’s position but, throughout the litigation, maintained a position which, twice, the Court found was unsustainable. This was not a case of a small landowner losing a significant part of its only asset, a case which might justify the exercise of the court’s discretion to ameliorate the effects of s 27(2); Cidneo was a commercial enterprise engaged in developing a site of considerable value and it had experience in negotiating with the Chief Executive over the TIC. The costs of litigation were a business risk for Cidneo. [23] In all the circumstances I can find no reason to exercise my discretion in a way that would interfere with s 27(2). Cidneo should pay the Chief Executive’s costs of and incidental to both the proceedings before the Land Court. ORDERS: 1. Cidneo Pty Ltd pay the Chief Executive’s costs of and incidental to the appeal. 2. Cidneo Pty Ltd pay the Chief Executive’s costs of and incidental to the each of the original hearing and the remitted hearing in the Land Court (including reserved costs). 3. The Chief Executive pay Cidneo Pty Ltd disturbed costs in the sum of Two Hundred and Thirty-One Thousand, Five Hundred and Six Dollars and Thirteen Cents ($231,506.13). -- 6 of 7 -- 7 4. The Chief Executive pay Cidneo Pty Ltd interest on the determined compensation in the sum of Eight Hundred and Nine Thousand, Five Hundred and Forty Dollars and Eighty-Nine Cents ($809,540.89). DALTON J LAND APPEAL COURT FY KINGHAM PRESIDENT OF THE LAND COURT PG STILGOE MEMBER OF THE LAND COURT -- 7 of 7 --