Arcpoint Pty Ltd v The Director-General, Department of Transport [1992] QLC 286 (1992) 14 QLCR 115

Re: Arcpoint Pty Ltd v. The Director-General, Department of Transport APPLICATION FOR COSTS (A91-20) LAND COURT, BRISBANE 27th May, 1992 In this matter the claimant seeks costs of and incidental to the hearing and determination of its claim for compensation against the respondent for the taking of certain land at Bethania for Road purposes. The land was taken under the provisions of the Acquisition of Land Act 1967 and the Main Roads Act 1920. On 15th May, 1992, judgment was given in the sum of $149,280. For the purposes of the application before the Court the statutory provisions governing the matter are found in the Acquisition of Land Act (the Act). Section 27 of the Act provides: 27. Costs. (1) Subject to this section, the costs of and incidental to the hearing and determination by the Land Court of a claim for compensation under this 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 js 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. The subsection does not apply to any appeal in respect of the decision of the Land Court or to costs awarded pursuant to subsection (3) of section twenty-four or subsection (3) of section twenty-five of this Act. The facts are that, following the resumption, a claim for compensation was served on the constructing authority in the sum of $200,000. At the commencement of the hearing of the matter, leave was sought to amend the claim to the sum of $192,485 under the following headings - Loss of Land Legal costs incurred in preparation of claim Valuers fees $188,205 $ 2,000 $ 2,280 Leave to amend was granted. To this stage of the proceedings the respondent was intending to put before the Court (in exchange of material with the claimant) a valuation in the sum of $90,000. An advance against compensation had previously [1992] QLC 286 -- 1 of 5 -- 2 been made in the sum of $87,000. On perusal of a statement of evidence tendered at that time, prepared by an engineer (Mr Kempe) who was intended to be called by the claimant, the respondent reviewed the valuation. The valuation as reviewed was in the sum of $118,000. During the proceedings the Court was informed that the respondent agreed to pay disturbance as claimed. The award of compensation is in the sum of $149,280 which comprises an award of $145,000 for loss of land plus legal and valuation fees as claimed. It is now well established that professional fees reasonably incurred in the preparation and lodgment of a claim may be recovered as compensation (See Harvey v. Crawley Development Corporation (1957) 1 AILE.A. 504; London County Council v. Tobin (1959) 1 AILE.A. 649; Szirtes v. Pine Rivers Shire Council (1969) 36 C.L.L.R. 97; Merivale Motel Investments Pty Ltd v. Brisbane Ex position and South Bank Redevelopment Authority (1984/85) 10 Q.L.C.R. 175 (LC.) and 268 L.A.C.). And draw interest, if interest is payable, as from the date they were paid (See Varitimos v. Queensland Electricity Commission (A89-10 - 26th January, 1991 to be reported). These matters of disturbance, however, are subject to proof and therefore do not in many instances (as here) form part of the valuation prepared by or on behalf of a constructing authority until proof is made to the constructing authority prior to or during the hearing or to the Court during the proceedings. Wording which I have found commonly used in such valuations is the sum "plus disturbance". These fees are accordingly sums which should be included in the equations which must necessarily be made under s.27 of the Act since the constructing authority, upon proof being made, is bound to pay them. Sub-section 2 of the section restricts the discretion of the Court given to it by sub-section 1 and makes the exercise of the discretion dependent upon the amount of the award. In this case there is no argument that the "amount finally claimed by the claimant in the proceedings" is the sum of $192,485. The question which arises is whether in applying the sub-section the Court can have regard to the amount of the valuation as reviewed by the respondent during the proceedings. The amount of the valuation with disturbance - 1) prior to review is the sum of $94,280; and 2) after review the sum of $122,280. The alternatives which arise in ascertaining the sum midway are these - 1) $143,382.50 and 2) $157,382.50. The award is $149,280. Therefore were the exercise confined to the first alternative -- 2 of 5 -- 3 the claimant would, prima facie, be entitled to costs and the converse were the exercise confined to the second alternative. Mr Samios, Counsel for the claimant submits - (1) that the first of the alternatives is the proper alternative; and (2) that, notwithstanding, it would be unfair for the claimant not to have its costs, having proved that the land was much more valuable than that contended for by ·the respondent. Mr Jones, Counsel for the respondent opposes the application and does not seek costs were the Court to act under the second alternative (although being of the opinion that the valuation as reviewed falls withinthe section). His principal argument is that under the authority of Moyes an d Ors v. Townsville Ci ty Council (1979) 6 Q.L.C:R. 271 referred to also by Mr Samios, the Court should not confine itself simply to whichever side the result falls but rather should not penalise either party unless it can be shown that a party behaved in such a manner as to make litigation almost a necessity. This, he submits, is not the case here. Both parties in his submission went about the proceedings in a proper and workman-like manner and accordingly neither should be penalised by paying the others costs. Inherent in the submission of Mr Samios is the submission that the amount finally claimed as compensation and the valuation finally put in evidence should be confined to those amounts amended by leave (claimant) and put to the Court (respondent) at the commencement of the hearing, otherwise, he argues; either party could, upon review during the proceedings, negative a party's entitlement to costs. However, there appears to me to be ample protection within the legislation to prevent a denial of the opportunity to seek costs in such circumstances. Firstly, in dealing with the claim, the words "the amount finally claimed by the claimant in the proceedings" must be read with the proviso to the sub-section and with the provisions of ss . 19 and 24 .(3) of the Act. S 19 deals with particulars which should be included in a claim and service of the claim on a constructing authority. S.24 provides that a claimant makes a reference to the Court by filing in the Court a copy of the claim served on the constructing authority . . Sub-s. 3 provides - The claimant shall not amend the claim filed by him in the office of the Registrar of the Land Court except upon leave granted by that Court (which leave the Court may grant upon such terms as it deems just, including terms with respect to the payment of costs). -- 3 of 5 -- j 4 The latter section would appear to divorce costs which may properly flow from an amendment of the claim from costs which may properly flow from the proceedings following the amendment. This may occur in a case where there is a substantial departure such as a case where the amendment has resulted in the claimant finally seeking compensation on a basis anew to that which the respondent was led to believe would be the case on receipt of the claim and as a result has wasted professional fees in preparing to answer the claim. In cases other than those involving a substantial departure, the matter whether the costs question of the result may be affected by the amendment seems to be irrelevant in the application of s. 24(3) (see also s.25(3)). Secondly, it is in the discretion of the Court whether leave is granted and thirdly, whilst leave is required to amend a claim, a claimant may lead evidence to a sum other than the sum stated in the claim. The words "the amount of the valuation finally put in evidence by the constructing authority" clearly recognise that the valuation put before the Court may be different from another valuation made by the constructing authority for the same purpose. Prior to the hearing of a claim, a party may apply for an exchange of valuations and all supporting data (s.418 - Land Act 1962). If an application is made and granted the exchange is effected by exchanging material filed in the Court by the parties. Where an exchange does not take place under the section the Court, of its own motion and upon hearing the views of the parties, may, on the day of hearing, order an exchange. It is not uncommon for this to be done without an order from the Court. In either of these cases it appears that this is the point where the "battle lines" have been drawn and that the word "finally" used in s.27 should be given such meaning. It follows that whatever is done by a party during the hearing is done at his peril as to costs. This line of reasoning takes me to the point where, prima facie, the claimant in this case is entitled to costs. As stated in Moyes supra p. 273 the general rule is that, subject to sub-section 2 of the section, costs are in the discretion of the Court "but of course the discretion must be exercised judicially, that is, by reference to relevant considerations". In the subject case the award is nearer the amount finally claimed than the amount of the respondent's valuation. The award is substantially in excess of that valuation and the weight ultimately given to the principal common sale in ascertaining the value of the land before the resumption was substantially affected by the engineering evidence introduced by the claimant. Had the review which followed the introduction of this evidence been done sooner, a flow of negotiation may have ensued which could have led to a -- 4 of 5 -- ! 5 settlement. In the valuation. of the land after the resumption the evidence of Mr Crane (for the claimant) could be said to be substantially responsible for the result. I have therefore concluded that in the circumstances it is appropriate that the claimant obtain costs. Accordingly, it is ordered in the exercise of the Court's discretionary powers that the constructing authority pay the claimant's costs of and incidental to the hearing and determination of the claim. The amount of such costs shall be ascertained and fixed by the Costs Taxing Officer of the Supreme Court at Brisbane according to the scale of costs prescribed by law for the time being in respect of proceedings in the Supreme Court and in accordance with the provisions of s. 41 (9) of the Land Act 1962. D. M. White · Acting President of the Land Court -- 5 of 5 --