Fabrellas & Anor v The Commissioner of Water Resources [1992] QLC 209

I , Re: Determination of Compensation - Resumption for a purpose of the Irrigation Act 1922 - 1986 (viz Burdekin River Irrigation Project) - A91-21 LJ and GB Fabrellas V. The Commissioner of Water Resources APPLICATION FOR COSTS 3rd February, 1992. Consequent upon the handing down of judgment in the above matter in Brisbane on 11th December, 1991 Counsel for the respondent Commissioner made application for costs of and incidental to the hearing in Ayr. Since the claimants were not represented when the judgment was delivered in Brisbane the Court decided to hear Counsel for the Commissioner there and then and to forward a copy of his submission to the claimants' Solicitors in Ayr for their written response. This has been received. Section 27 of the Acquisition of Land Act 1967 - 1988 reads:- "(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 [1992] QLC 209 -- 1 of 2 -- - Page 2 - 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." The brief history of the matter is so far as it is relevant to the question of the consideration of a cost application is that the claimants filed a claim for compensation with the respondent Commissioner in the sum $1,466,000. Valuation evidence was called by the claimants in support of a value of $890,000 for the resumed land. The respondent Commissioner also called valuation evidence in support of a valuation of $330,590 for the resumed land. The determination by the Land Court was for a land value of $355,590. Now it is clear that if an award of costs is made then it can only be in favour of the respondent Commissioner. A factor of influence in the determination of compensation was the adoption of such part of the claimants' valuation which referred to clearing of timber, so at least they succeeded to that extent although comparatively speaking, the respondent's valuation was increased by only a relatively minor sum ($25,000). Nonetheless, compensation was determined in the sum of $25,000 in excess of the respondent's valuation, and this is a considerable advance in capital terms. It may well have been that this additional sum would not have been available to the claimants had they not pursued the matter in the Court. In these circumstances, and in the exercise of my discretion, I make no order as to costs. C. H. Carter Member of the Land Court. -- 2 of 2 --