Blower v Queensland Electricity Transmission Corporation [1998] QLC 365

[1998] QLC 365 Re: Claim for Compensation - Resumption of Easement for electrical works (transmission line) purposes Acquisition of Land Act 1967. (A96-50). Stephen Paul Blower and Christine Ellen Blower v. Queensland Electricitv Transmission Corporation JUDGMENT AS TO COSTS LAND COURT, TOWNSVILLE 31 March 1998 On 6 October 1995, easements were resumed over land at Roseneath, an outer suburb of T ownsville, the registered proprietors of which were the claimants. A claim for compensation dated 2 July 1996, was served on the respondent by the claimants in the sum of $80,000, made up as follows: Land and severance Improvements Injurious affection Valuation fees Legal fees $ 70,000 Nil $ 7,800 $ 1,500 $ 1,000 However, the amount put in evidence by the claimants was $78,500, comprising compensation assessed by the claimants' valuer at $76,000 and legal and valuation fees $2,500. At the hearing, the respondent put in evidence a valuation for an amount of $20,000 and agreed that an amount of $2,500 should be awarded to the claimants for valuation and legal fees incurred in preparation of the claim for compensation. On 21 November 1997, the Court determined compensation at $52,500, compnsmg an amount of $50,000, which was the difference between the Court's findings of the "before" and "after" value of the land and the agreed amount of $2,500 for disturbance (the legal and valuation fees). -- 1 of 7 -- t , 2 The award of compensation was nearer to the amount finally claimed by the claimants than it was to the amount of the valuation put in evidence by the respondent. · Therefore, if costs are to be awarded under Section 27(2) of the Acquisition of Lana Act 1967 (the Act), they must be awarded to the claimants. However, the question arises as to whether this is an appropriate case in which the Court should exercise its discretion to award costs. Submissions by the Parties Written submissions as to costs were made on behalf of the parties. The claimants submitted that it is the practice of the Land Court to award costs to the claimant where the award falls on the claimant's side the midway point provided for in Section 27(2) of the Act and there would have to be an extraordinary circumstance for the Court to depart from that practice. The claimants contended that there is a difference between claims for compensation and ordinary litigation. A claim for compensation arises as the result of the decision of a constructing authority to acquire land for a perceived public need. The claimant must either accept the respondent's assessment of compensation or have the Court rule on its adequacy. Subject to Section 27(2) of the Act, if a claimant succeeds in recovering compensation above that offered by the respondent, it should expect to receive its costs of pursuing the claim. The claimants submitted that the following factors should be taken into account by the Court in determining whether costs should be awarded in their favour: • their claim was not unreasonable; • they acted properly and reasonably in pursuing their claim; • their claim was not vexatious, dishonest or grossly exaggerated and not presented in such a way as to impose unnecessary burdens on the respondent or the Court; • the bulk of the argument at the hearing related to: (a) whether the highest and best use of the land was as one single rural residential site or two such sites; and -- 2 of 7 -- l (b) whether before resumption the hill was the most attractive feature of the land and accordingly whether the claimant made an election to build on the creek site as opposed to the hill site. • The claimant was successful on both those arguments. It was further argued that although the claim for injurious affection was unsuccessful, it was properly founded in principle and fully argued, but only occupied a very small part of the hearing. It would not be possible to isolate any percentage of time occupied by that argument. On behalf of the respondent it was submitted that notwithstanding the two major issues decided against it, the amount of $7,800 claimed by the claimant for injurious affection was decided in favour of the respondent. The respondent went on to argue that the amount of $52,500 awarded by the Court was only $1,250 more than the midway point provided for by Section 27(2) of the Act. Therefore, in such circumstances, it would be appropriate that there be no order as to costs. Power of the Land Court to make Costs Order The power of the Land Court to order costs is found in Section 41 (9) of the Land Act 1962 (preserved by Section 521 of the Land Act 1994). The sub-section provides: II (9) The court may make such order as it thinks fit as to the costs of or incidental to any matters that it has jurisdiction to hear and determine including, without limiting the generality of this sub-section, the costs of an adjournment or application made in a pending matter, allowances to witnesses attending for the purpose at the hearing and the costs of any survey of boundaries. 11 Section 27 of the Acquisition of Land Act 1967 provides: II (1) Subject to this section the costs of and incidental to the hearing and determination of the Land Court of a claim for compensation under the Acquisition of Land Act shall be in the discretion of that court. (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 of 7 -- 4 (3) Subsection (2) does not apply to any appeal in respect of the decision of the Land Court or to costs awarded pursuant to section 24(3) of 25(3). 11 Sub-section (3) is not relevant to those proceedings. The Leading Cases on the Court's Discretion as to Award Costs The Land Appeal Court has recently considered the whole matter of costs m Yalgan Investments Pty Ltd v. The Council of the Shire of Albert (not reported) 11 December 1997. In that case the Land Appeal Court said in its judgment at pages 3-5: II The leading decisions on the scope and exercise of the Land Court's discretionary power include Moyses and others v. Townsville City Council (1979) 6 QLCR 271 (Moyses) , Minister for the Environment v. Florence ( 1980-81) 41 L.G.R.A. 127 (Florence) , Banno and Another v. Commonwealth of Australia (1993) 81 L.G.E.R.A. 34 (Banno), Commissioner for Railways v. Buckler [1996] 1 Qd.R. 18 (Buckler) and, more recently, Kabale Holdings Pty Ltd v. Director-General, Department of Transport (A94-34) unreported decision dated 15 October 1997)(Kabale) in which the Land Appeal Court quoted passages from decisions of the Full Court of Queensland in Wyatt v. Albert Shire Council [1987] 1 Qd.R. 486 (Wyatt) and Assignment Pty Ltd v. Kirby [1981] 1 Qd.R. 129 (Assignment Pty Ltd) relating to similarly worded discretion power to award costs under other legislation. Rather than quote passages from those judgments we will state in summary form the propositions for which the judgments and Section 27 of the Acquisition of Land Act 1967 stand. (a) The power to award costs of proceedings is entirely the creation of statute (Wyatt at p.488 quoted in Kabale at p.29). (b) The power of the Land Court to make an order for costs in relation to a claim for compensation is conferred by section 41 (9) of the Land Act 1962 and section 27 of the Acquisition of Land Act 1967. (c) Subject to section 27 of the Acquisition of Land Act 1967, the discretionary power of the -- 4 of 7 -- 5 Land Court is full or complete (cf Wyatt at pp.488-9 and Assignment Pty Ltd at p.134, quoted in Kabale at p.29). ( d) The only statutory constraints on the exercise of the discretion are that: (i) 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; (ii) otherwise costs (if any) shall be awarded to the constructing authority (see Buckler at pp.23- 24 for history of policy reasons for those constraints.) (e) Compulsory acquisition cases differ from ordinary claims in the significant respect that the claimant, unlike the ordinary plaintiff, had no choice whether to make a claim or not. The mere acquisition by compulsory process gave the claimant a claim for compensation which he or she could hardly be expected to renounce (Florence at p.149, Banno at p.53). (f) The discretion whether to award costs may not be exercised in an arbitrary manner but must be exercised on principled grounds (Banno at p.53) or judicially, that is, for reasons that can be considered and justified (Wyatt at p.489) by reference to relevant considerations (Moyses at p.273). (g) In some cases the matter may be so obvious as not to require explanation in the form of stated reasons (Wyatt at p.489). -- 5 of 7 -- 6 (h) In general, a party who is wholly successful in litigation can expect an order for costs in his favour. Where compensation is awarded to one who had already been given, by statute, the right to receive it, it is just to say that the claimant ought, in the absence of special circumstances, to receive his reasonable costs of obtaining the compensation that is, ex hypothesi, his due. But costs are discretionary and no hard and fast rules will ever be allowed to occupy part of an area controlled by a discretion, however predictable the result of its exercise may be in certain sorts of cases. In some cases, the Land Court may consider that there are sufficient reasons for departing from the general rule (Moyses at p.278, Florence at pp.149-50). (i) Although the exercise of the power does not exclude resort to the 'settled practice' of a court where such a practice has evolved, a purported exercise of discretion which fails because the mind is closed to relevant considerations through a rigid adherence to preconceptions involves an error of law that is open to correction on appeal (Wyatt at p.489). (j) Section 27(2) of the Acquisition of Land Act 1967 should not be regarded as a legislative suggestion that, where the claim is substantially more than the amount awarded, and the amount put in evidence by the constructing authority is not substantially less than the amount awarded, the Court should not merely refrain from awarding any costs to the claimant but should award costs to the authority (Moyses at p.274). (k) Where the Land Court is considering whether it should award costs to a constructing authority, it could be wrong to have regard merely to the amounts of the claim and of the award and of the value put in evidence by the authority. Usually it would be more relevant to enquire whether the conduct of the claimant (such as, for example, making an exorbitant claim) has been such as to force I -- 6 of 7 -- 7 the authority, unreasonably and unnecessarily, into litigation (Moyses at p.274) or whether the claimant has pursued a vexatious, dishonest or grossly exaggerated claim or presented his case in such a way as to impose unnecessary burdens on the constructing authority or the Court (Banno at p.53). " Conclusion and Order: In this case there were three principal matters for decision by the Court. The claimants succeeded in two of those principal matters, that is, the highest and best use of the land and the relative merits of the hill site as against the merits of the creek site. However, the claimants failed in relation to the injurious affection matter. Having regard to the principles set out above, I have come to the conclusion that the claimants are entitled to an award of costs in this case. There are no extraordinary circumstances which would require that the Court should depart from its usual practice. Although the respondent was successful in respect of the injurious affection matter, the amount claimed was relatively minor compared with the difference between the balance of the claim and the valuation of the respondent. I do not think it is an appropriate case for the apportionment of costs. Only a small proportion of the hearing time was occupied with the injurious affection argument. Therefore, it is ordered that the respondent pay the claimants' costs of and incidental to the hearing and determination of the claim for compensation. The amount of such costs shall be ascertained and fixed by the Taxing Officer of the Supreme Court in Townsville, pursuant to s.41 (9) of the Land Act 1962. (JJ Trickett) President of the Land Court -- 7 of 7 --