Chief Executive, Department of Transport and Main Roads v Pfeiffer Nominees Pty Ltd (No 2) [2018] QLAC 3

LAND APPEAL COURT OF QUEENSLAND CITATION: Chief Executive, Department of Transport and Main Roads v Pfeiffer Nominees Pty Ltd (No 2) [2018] QLAC 3 PARTIES: Chief Executive, Department of Transport and Main Roads (appellant) v Pfeiffer Nominees Pty Ltd (respondent) FILE NO: LAC006 -17 Land Court No. AQL113-14 DIVISION: Land Appeal Court of Queensland PROCEEDING: Appeal DELIVERED ON: 22 August 2018 DELIVERED AT: Mackay/Brisbane HEARD ON: Submissions closed 11 June 2018 HEARD AT: On the papers MEMBER: Henry J WA Isdale, Member of the Land Court PG Stilgoe, Member of the Land Court ORDERS: 1. The respondent pay the appellant’s costs of the hearing in the Land Court to be agreed, or failing agreement, to be assessed on the standard basis. 2. The respondent pay the appellant’s costs of the appeal to be agreed, or failing agreement, to be assessed on the standard basis. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – where appellant was successful on appeal – where respondent did not make any submissions as to costs – where no costs were ordered in the Land Court below – where costs orders were sought by the appellant in the Land Appeal Court -- 1 of 4 -- 2 Acquisition of Land Act 1967 (Qld) s 27 Land Court Act 2000 (Qld) s 34, s 72 Chief Executive, Department of Transport and Main Roads v Pfeiffer Nominees Pty Ltd [2018] QLAC 2, cited Gallo v Department of Environment and Resource Management (No 2) (2014) 35 QLCR 508, cited Moreton Bay Regional Council v Mekpine Pty Ltd & Anor (No 2) [2014] QLAC 5, cited Ostroco Pty Ltd v Chief Executive Department of Transport and Main Roads (No 3) (2014) 35 QLCR 313, cited APPEARANCES: Written submissions received only from Mr JM Horton QC and Ms E Hoiberg of Counsel (Clayton Utz), for the appellant. [1] This Court gave judgment allowing the Chief Executive’s appeal and determining compensation in the amount of $580,000 plus interest on 28 May 2018.1 In giving judgment the Court also ordered: “3. The parties will within two weeks of judgment file and serve written submissions not exceeding three pages per party as to such of the following as are not agreed in the meantime: (a) the quantification of interest; (b) costs in this court; (c) (if it be relevant) costs in the Land Court.” (‘order 3’) [2] Subsequent to order 3 being made the respondent’s then lawyers, All About Law, informed the Registry they held instructions to make an application for leave to appeal the Court’s decision and said: “In light of those instructions, we are of the view that it is premature to make a final determination in relation to interest and costs and request that these issues be put in abeyance pending the determination of our client’s application for leave and any subsequent appeal.” [3] The letter enclosed a draft order, to which the Chief Executive was said to consent, the terms of which purported to vacate order 3 and adjourn the proceeding to the Registry. This Court took the view it was preferable to complete the proceeding before it and the parties were informed by the Registry that the Court had directed they be informed the proposed draft order was declined and that the Court’s present orders remained on foot. 1 Chief Executive, Department of Transport and Main Roads v Pfeiffer Nominees Pty Ltd [2018] QLAC 2. -- 2 of 4 -- 3 [4] Written submissions were subsequently filed by the Chief Executive in accordance with order 3. [5] The respondent did not, within time or indeed at any time, file written submissions in accordance with order 3. [6] Fearing the failure by the respondent’s legal representatives to file such submissions was the result of some communication error, the Court arranged for the Registry to make enquiries. The effect of responses to the Registry from Holding Redlich, the respondent’s new solicitors, was that the respondent had no submissions to make. [7] The upshot then is that on the issues of the quantification of interest, costs in this Court and costs in the Land Court, the respondent has advanced no submissions. [8] In circumstances where it appears no specific order is sought in relation to the quantification of interest, no further order as to interest needs to be made. [9] As to the costs of the appeal to this Court, the Court’s power to award costs derives from ss 34 and 72 Land Court Act 2000 so that this Court may order costs for a proceeding before it “as it considers appropriate”. The discretion arising under that power is to be exercised judicially and, whilst it is otherwise unfettered, it is well established that it ought be informed by the principle that costs should follow the event, so as to compensate those put unnecessarily to the expense of litigation.2 [10] The Chief Executive was wholly successful in the appeal and, in the absence of submissions to the contrary, there is no apparent reason why costs ought not follow the event. [11] As to the costs of the proceeding below, it is inherent in the Chief Executive’s success on appeal that the Chief Executive should have succeeded in the Court below. Notwithstanding the absence of an order below as to costs, such determination unfortunately having been postponed pending the outcome of the appeal, this Court has power to make an order as to costs below.3 2 Moreton Bay Regional Council v Mekpine Pty Ltd & Anor (No 2) [2014] QLAC 5 at [12], Ostroco Pty Ltd v Chief Executive Department of Transport and Main Roads (No 3) (2014) 35 QLCR 313, 319. 3 Gallo v Department of Environment and Resource Management (No 2) (2014) 35 QLCR 508, Ostroco Pty Ltd v Chief Executive Department of Transport and Main Roads (No 3) (2014) 35 QLCR 313. -- 3 of 4 -- 4 [12] The determination of costs below is regulated by s 27 Acquisition of Land Act 1987. Section 27(2) effectively provides that where the amount of compensation determined by the Court is nearer to the valuation put in evidence by the constructing authority than to the amount claimed by the claimant costs “shall” be awarded to the constructing authority. The application of s 27(2) to the circumstances of this case therefore has the inevitable consequence that the costs of the hearing in the Land Court below should also be awarded to the Chief Executive. [13] The Court’s orders are: 1. The respondent pay the appellant’s costs of the hearing in the Land Court to be agreed, or failing agreement, to be assessed on the standard basis. 2. The respondent pay the appellant’s costs of the appeal to be agreed, or failing agreement, to be assessed on the standard basis. HENRY J MEMBER ISDALE MEMBER STILGOE -- 4 of 4 --