Atkin v Redland Shire Council [2004] QLC 78

LAND COURT OF QUEENSLAND CITATION: Atkin v Redland Shire Council [2004] QLC 78 PARTIES: Michael Rufus Atkin (applicant) v. Redland Shire Council (respondent) FILE NO: A2002/0845 DIVISION: Land Court of Queensland PROCEEDING: Decision on Costs DELIVERED ON: 24 September 2004 DELIVERED AT: Brisbane MEMBER Mrs CAC MacDonald ORDER: 1. The respondent is ordered to pay the claimant the costs of and incidental to the hearing before the Land Court of the claim for compensation. 2. The respondent is also ordered to pay to the claimant the costs of this application for costs. 3. If the parties are unable to agree on the amount of costs to be paid, the amount of such costs shall be decided by the appropriate assessing officer of the Supreme Court, under the scale of costs prescribed by law for proceedings in the Supreme Court. APPEARANCES: Written submissions SOLICITORS McLaughlins for the claimant Pereira and Co for the respondent [1] This application arises out of the hearing and determination of a claim for compensation brought by the claimant against the respondent in respect of the resumption of the claimant’s land under the provisions of the Acquisition of Land Act 1967 (the Act). The -- 1 of 4 -- 2 claimant seeks an order that the respondent pay the claimant's full costs of the trial and of this application for costs. [2] Section 34(1) of the Land Court Act 2000 and s.27(1) of the Acquisition of Land Act give the Land Court a broad discretion as to the award of costs. In compensation matters the discretion is constrained by s.27(2) of the Acquisition of Land Act which provides that: "27(2) If the amount of compensation as determined is the amount finally claimed by the claimant in the proceedings or is nearer to that amount than to the amount of the valuation finally put in evidence by the constructing authority, costs (if any) shall be awarded to the claimant, otherwise costs (if any) shall be awarded to the constructing authority." [3] The claim, as amended, was for Value of land $75,000.00 Disturbance $26,331.79 $101,331.79 [4] The respondent's final position was : Value of land $10,000.00 Disturbance $1,694.79 Mr Paddison's fees $1,000.00 Paul Caddey Survey Pty Ltd $275.00 Solicitor’s disbursements $419.79 _________ $11,694.79 [5] Compensation was determined in the sum of $80,298.79 made up as follows: Value of land $59,500.00 Disturbance $20,798.79 $80,298.79 [6] It is apparent that the amount of compensation as determined is nearer to the amount finally claimed by the claimant than the amount of the valuation finally put in evidence by the constructing authority, and therefore, pursuant to s.27(2) of the Acquisition of Land Act, any costs must be awarded to the claimant. [7] The respondent has conceded that the claimant is entitled to an order that the respondent pay some of the claimant's costs with respect to the hearing and determination of compensation but submits that the claimant should be limited to an award of 50% of its costs. [8] In support of this submission, the respondent relied on the fact that the claimant was not wholly successful in his claim – the value of the land as determined was less than that claimed, and the quantum of the disturbance items was reduced. It was submitted that a -- 2 of 4 -- 3 significant period of the time involved in the hearing of the case was devoted to the claim of $6,335 for valuation fees, of which $2,901 was allowed, and to a 'double dipping' claim with respect to the Wade Consulting Group engineering fees. The respondent submitted that it should not have to pay for the time spent in resisting those claims. The respondent also relied on the fact that Mr Traves' evidence was, in the main, preferred to that of Mr Paddison and submitted that the decision turned on my finding that the flow of water was diverted onto the subject land as a result of the Daunts work, which was a discrete point. [9] In Yalgan Investments Pty Ltd v Council of the Shire of Albert (1997) 17 QLCR 401 the Land Appeal Court approved a number of guidelines extracted from earlier decisions as to the scope and exercise of this Court’s discretionary power to award costs. It was accepted that, subject to s.27 of the Act, the discretionary power of the Land Court is full or complete (at 406) and that the discretion whether to award costs may not be exercised in an arbitrary manner but must be exercised on principled grounds or judicially, that is, for reasons that can be considered and justified by reference to relevant considerations (407). It was also recognised that compulsory acquisition cases differ from ordinary claims in the significant respect that the claimant, unlike the ordinary plaintiff, has no choice whether to make a claim (at 407). Further, the Court said (at 417) that this Court should, in an appropriate case, give sufficient weight to the principle that, in cases where the discretion is exercisable only in favour of the claimant and in the absence of special circumstances, the claimant should obtain the costs of achieving fair compensation. [11] The major issues in the case concerned the capacity of the land owner to build on the subject land, which involved consideration of the effect of stormwater flow on the land and the proper construction of the town planning scheme, and the value of the land. There was disagreement between the parties on all of these matters and it was necessary, therefore, for the claimant to litigate them in order to obtain his compensation. Although the evidence given on behalf of the respondent was preferred, in some matters, to that presented on behalf of the claimant, that in itself is not a reason for reducing the amount of the costs awarded to the claimant. The claim succeeded because I accepted significant parts of the evidence and submissions made on behalf of the claimant. Similarly, although the amounts awarded for valuation and engineering fees were less than those claimed, on balance I consider that the claimant is entitled to his costs in respect of those claims. This is a case where the claimant was substantially, but not completely, successful and where my discretion is exercisable only in favour of the claimant. There is no suggestion that the claimant's conduct was vexatious, dishonest or grossly exaggerated. Nor were there any special circumstances which would point to the need to -- 3 of 4 -- 4 deprive the claimant of his reasonable costs. I consider therefore that the claimant should be awarded his costs relating to the hearing and the costs of this application. Orders 1. The respondent is ordered to pay the claimant the costs of and incidental to the hearing before the Land Court of the claim for compensation. 2. The respondent is also ordered to pay to the claimant the costs of this application for costs. 3. If the parties are unable to agree on the amount of costs to be paid, the amount of such costs shall be decided by the appropriate assessing officer of the Supreme Court, under the scale of costs prescribed by law for proceedings in the Supreme Court. CAC MacDONALD MEMBER OF THE LAND COURT -- 4 of 4 --