Barns v The Director-General, Department of Transport [1995] QLC 47

LAND COURT BRISBANE 15 June 1995 Re: Application for Costs - Compensation Determination - A93-57. (Property at Peregian). J.T. and L.J. Barns v. The Director-General, Department of Transport D E C I S I O N The claimants for compensation in this matter were also the owners of property at Coolum from which land was taken for essentially the same project. Judgments were delivered on the same day and, as with the Coolum matter (A93-55 and 56), the Director-General has made application for costs, with written submissions accepted by the Court. Decisions on both applications are delivered today. It is sufficient to refer to the decision regarding the Coolum matter, in terms of the provisions contained in s.27 of the Acquisition of Land Act 1967, relative to costs and the discretion of the Court thereto. In this matter, the claim finally before the Court was in the amount of $4,308,000 together with legal and valuation fees of $6,776, the latter amount as agreed between the parties. The valuation of the constructing authority, originally contended for, and as tendered, was in the amount of $280,000. It is submitted by the Director-General that "Notwithstanding the fact that during the trial this amount was amended to $400,000, for the purposes of reviewing Section 27.2, it would appear that the amount contended for at the time of the trial commencing is the amount to be considered" with reference then being made to the Land Court decision in Arcpoint Pty Ltd v. Director-General, Department of Transport (1992-93) 14 QLCR 115. As I interpret the judgment of the Court of Appeal in The Commissioner for Railways v. P and PA Buckler (No 18 of 1994), the question relating to the final valuation placed in evidence would leave the argument open but, in this matter, only if it had become a question of whether the determination of compensation was nearer to the claim or that valuation. Whichever amount is accepted as the final valuation placed in evidence by the constructing [1995] QLC 47 -- 1 of 2 -- 2 authority, the determination was nearer to that valuation. Compensation was awarded in the amount of $487,500 together with the disturbance items of $6,776. This matter involved initially the question of assessment of the potential of the land for residential rezoning and development. The judgment was against the submissions of the Director-General. The quantum of compensation was based on a "before resumption" valuation significantly higher than that of the constructing authority - and even more so lower than the claim. The primary evidence of value on which the determination was made exposed itself during the hearing - having been previously "shrouded in secrecy". On the evidence led by both parties in the hearing, it is clear that litigation of the matter was necessary to resolve the issues involved. While the determination is so far below the claim as to suggest that the claim may have been exorbitant, the claimants' approach was not demonstrative of conduct as to force the authority unreasonably and unnecessarily into litigation. The determination resulted in an award much higher than any settlement offer made by the constructing authority. I have concluded that in this matter the parties should bear their own costs and in the exercise of the Court's discretionary powers I make no order as to costs. (RE Wenck) Member of the Land Court -- 2 of 2 --