Buckler v Queensland Railways [1993] QLC 9 (1992) 14 QLCR 386

LAND COURT, BRISBANE. 7th April, 1993. Re:Claim for Compensation - Resumption for Railway purposes - Acquisition of Land Act 1967. A91-69\70 Patrick Buckler and Patricia Dawn Buckler v. Queensland Railways DECISION ON APPLICATION FOR COSTS. This is an application for costs by the claimants made in pursuance of s.27 of the Acquisition of Land Act 1967 (the Act). Following a resumption of land by Queensland Railways on 18th February, 1989 from two adjoining parcels of land in the ownership of the claimants they filed in Court copies of claims (2) made on the respondent for compensation. In the hearing of the matter the claims were amended to one combined claim in the sum of $3.2 million for loss of land, severance and injurious affection. In addition a sum was claimed for disturbance. The assessment for loss of land etc was made by valuer W D Gardiner. The assessment relied upon by the respondent was made by valuer G W Knight. In his own words Mr Knight assessed "compensation" at "nil." The statutory principles governing the assessment of compensation are contained in s.20 of the Act. The section provides - "20. Assessment of compensation. (1) In assessing the compensation to be paid, regard shall in every case be had not only to the value of land taken but also to the damage, if any, caused by either or both of the following, namely - (a)the severing of the land taken from other land of the claimant; (b)the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land. [1993] QLC 9 -- 1 of 8 -- - Page 2 - (2) Compensation shall be assessed according to the value of the estate or interest of the claimant in the land taken on the date when it was taken. (3) In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken. But in no case shall this subsection operate so as to require any payment to be made by the claimant in consideration of such enhancement of value." In the subject case all four headings were under consideration. Some 17 witnesses were called. The valuers' opinions were influenced by the opinions of professionals in other fields, more particularly in the area of town planning. Highest and best use of the land included differing components of use - golf course and residential, light industrial/commercial. The works to be constructed on the land taken included a railway line and a railway station. The station area was of the order of 8 hectares. The respondent, as stated in the judgment, encourages development of airspace over stations and the integration of railways with commercial undertakings. These elements were present in the subject case. Plans in evidence of a use of part of the balance land of the claimants after the resumption including one entitled "Helensvale Station Regional Centre Master Plan." Other parts were envisaged as remaining as golf course, residential type uses in proximity to or adjoining a railway. It may be seen that the valuers were confronted with issues rarely encountered and in need of supporting professional assessments on highest and best use both prior to the resumption and after the resumption. On the day of hearing when documents were exchanged and the respective valuations had been crystallised the valuations (excluding disturbance) made on a "before and after" method of valuation were as follows - Before After Compensation Mr Gardiner $12.4 m $9.2 m $3.2 m Mr Knight $8 m $10 m $2 m By applying the same method the Court arrived at the following -- 2 of 8 -- - Page 3 - assessments - Before After Compensation $10.5 m $9.4 m $1.1 m Compensation for land severance and injurious affection was determined in the sum of $1,250,000. This followed statements by the Court including this statement - "Thirdly, it seems reasonable in the circumstances of this case where there is enhancement in value to a part of the land remaining (which is difficult to quantify) and depreciation in value to parts of the land remaining (which is difficult to quantify), to answer the question by posing whether one balances the other. Were this done, compensation would equate the overall value per hectare of the land taken; that is, 13.5 ha x $93,000 +$1,255,500 or $1,250,000 in market figures. This being the highest of the sums considered it will be adopted in following normal principles which require the resolution of doubts in favour of the claimants (Commissioner of Succession Duties (S.A.) v. Executor Trustee and Agency Company of South Australia Limited (1974) 74 C.L.R. 358)." The gross award of $1,474,250 included the sum of $224,250 for disturbance which covered five items only one of which was in dispute. Two of the items were for legal and valuation fees incurred in the preparation and lodgement of the claim. Such matters (subject to proof) are recoverable as compensation assuming that compensation is payable see Harvey v. Crawley Development Corporation (1957) 1 All.E.R. 504; London County Council v. Tobin (1959) 1 All.E.R. 649; Szirtes v. Pine Rivers Shire Council (1969) 36 C.L.L.R. 97: Merivale Motel Investments Pty Ltd v. Brisbane Exposition and South Bank Redevelopment Authority (1984/85) 10 Q.L.C.R. 175 (L.C.) and 268 L.A.C. and Gilmour Developments Pty Ltd v. The Commissioner of Main Roads (1977) 4 Q.L.C.R. 311 L.C. In the circumstances of the subject case disturbance may be put aside as it is one which being common in the result has no effect on the substance of the issue. The discretion in the Court to award costs of and incidental to the hearing and determination of a claim for compensation under the Act is governed by the provisions of s.27 of the Act. The section provides - "(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 -- 3 of 8 -- - Page 4 - 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. 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." It is the interpretation that should be given to the first paragraph of sub s.(2) of the section which forms a crux of the argument in the application before the Court. Briefly, the contention by the claimants is that the "imaginary line" between the parties is taken from the extremities of the sums reflected in the valuations whereas for the respondent it is submitted that the extremities are confined to nil (that being submitted as a valuation for the purpose), and the amount finally claimed of $3.2 million. If the first submission is correct the claimants would be entitled to apply for costs were the award of compensation anything in excess of $600,000. If the second submission is correct the award would have to exceed $1.6 million for the claimants to gain that prima facie advantage. I will return to this question of the initial parameters after stating some principles which are of general application. These are found in Moyes and Ors v. Townsville City Council (1979) 6 Q.L.C.R. 271 LAC and Minister for the Environment v. Florence (1980 - 81) 45 L.G.R.A. 127. Both cases were referred to by the Court in Dellow and Another v. Council of the Shire of Livingstone - A91-89 - decision 19th June, 1992 (L.C.) to be reported. Relevant extracts from the judgments are repeated. In the Moyes case at p 274 the Land Appeal Court said - "First, we do not think that the presence of sub-section (2) of Section 27 in the Act should be regarded as some sort of legislative suggestion that, where the claim is substantially more than the amount awarded, and the amount put in evidence by the 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. Second, where the Court is considering whether it should award costs to an 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. We would think that usually it would be more relevant to enquire -- 4 of 8 -- - Page 5 - whether the conduct of the claimant , including his making of an exorbitant claim, if he has made one, has been such as to force the authority; unreasonably and unnecessarily, into litigation. " In Minster for the Environment v. Florence; Wells J at pp. 149-150 said - " Compulsory acquisition cases differ of course from ordinary claims dealt with in the general jurisdiction in one significant respect: the claimant, unlike the ordinary plaintiff, had no choice whether to make a claim or not; the mere acquisition by compulsory process gave him, by virtue of s. 18 of the Act, a claim to compensation which he could hardly be expected to renounce. Upon an ordinary claim in the general jurisdiction it is, generally speaking, obvious who has won and who has lost, and correspondingly clear why costs usually follow the event. Upon a claim for compensation for land compulsorily acquired, it is not, generally speaking, appropriate to speak of one party as having won; compensation is awarded to one who had already been given, by statute, the right to receive it. It is therefore as just to say of the latter sort of case 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, as it is to say of the former sort of case that prima facie costs follow the event in favour of the party who has won. But costs are, as always, discretionary, and no hard and fast rule 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 cases under the Land Acquisition Act, the legislature has provided some assistance to the judge who is required to exercise that discretion. Section 36 of the Act provides: '36. In any proceedings under this Act the Court may award such costs as it thinks proper, but, in making an order for costs, shall, where it is, in the opinion of the Court, appropriate to do so, take into consideration - (a)the amount of compensation awarded by the Court as compared with the amount (if any) offered by the Authority; and (b)the extent to which, in the opinion of the Court, the proceedings have arisen from, or been affected by - (i)unreasonable conduct on the part of the claimant or the Authority; or (ii)an excessive claim by the claimant or unduly depressed offer by the Authority. ' As I construe it, the section begins by stating the general rule. It then directs the court 'where it is, in the opinion of the Court, appropriate to do so, [to] take into consideration' one or more facts and circumstances of the kind specified in pars (a) and (b). It is to be observed that the direction is not unconditional; the court is only to give effect to the direction where it considers it appropriate to do so. The implication, in my opinion, is that before applying the substance of paras (a) and (b) there must be some identifiable facts or circumstances signifying the -- 5 of 8 -- - Page 6 - appropriateness of considering, in particular, the relationship between the authority's best offer and the amount awarded, unreasonable conduct on the part of either party, or an excessive claim or unduly depressed offer. Put another way what the section means is, not that there is a discretion to be exercised having regard to the facts and circumstances of the kind referred to in pars (a) and (b) (supra), but that the discretion is to be exercised generally, and, when the facts and circumstances seem to call for it, the court is to consider the implications, for the case then before it, of those paragraphs. I should, in passing, observe that there is a clear difference in emphasis between par. (a) and sub-par. (ii) of par. (b). By the former the court is called on to consider a comparison of the two amounts; by the latter, the court is called on to consider amounts said to be excessive or unduly depressed in se. Against the history of a wide-ranging discretion given to this Court with respect to costs, I am, I apprehend, to construe s. 36 flexibly and not restrictively, to the intent that the special nature of the jurisdiction to which it relates should be duly recognized, and orders made in that jurisdiction that are just and expedient. " Before these principles can be applied it is necessary to decide which of the parties is entitled to apply for costs. Counsel for the applicants submit that there is significance in the use of the word "valuation" when speaking about the amount of the valuation "finally put in evidence by the constructing authority" and the "amount of compensation" awarded to the claimants. The distinction in wording appears in other parts of the Act. The submission is that the distinction is made with purpose and that in considering an issue with circumstances such as exist in this case it is the valuation put before the Court which results in an enhancement factor of $2 million or as used in argument before the Court "minus $2 million" which is the relevant parameter and not the assessment - "amount of compensation" - of NIL. For the respondent it is submitted that for the purpose the words, the "amount of the valuation finally put in evidence" should be read as nil. The submission is founded upon argument including the submission that it would be incorrect to regard the extent of the enhancement as one parameter in the exercise since enhancement may only be used as "set-off or abatement" (s.20). Authority was cited in support of a ruling that a thing may be "valued" as worthless or worth nothing (in re: Piers (1898) 1 Q.B. 627) but this reasoning however is not factual in the circumstances of the case. It may be true to -- 6 of 8 -- - Page 7 - say that compensation in the circumstances is worthless or worth nothing but what was valued has value in the real sense. Compensation or enhancement is the result of the of the computation. This reasoning would support the submission made on behalf of the claimants. However there is an apparent injustice were that to apply since there could never be a case where the only issue before the Court is the amount of the enhancement that is, say between +5 or +2. If the assessment of "nil" is read as "the amount of the valuation" ie. as a numerical factor then again I foresee injustice for a claimant would have to obtain an award in excess of one half the sum claimed before he would be entitled to apply for costs notwithstanding that the award may be substantially in excess of the nil "factor". Section 14A of the Acts Interpretation Act provides that in the interpretation of a provision of an Act the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. It appears to me that an interpretation is required which will give an issue similar to that which is before the Court practical effect and allow for an application of general principles. This may be achieved if the section is interpreted on the basis that in a case like the one before the Court the argument is simply one between enhancement and compensation. It follows that a claimant having proved that compensation is payable, is entitled to ask for costs and similarly a respondent who has proved that enhancement outweighs compensation is entitled to ask for costs. Having past this step the Court may then exercise its discretion. In the circumstances an award of costs, if any, can only be made in favour of the claimants. I have already outlined briefly the complexity and extent of professional opinion put before the Court. There were issues involved of an administrative nature apart from the provision of accommodation works agreed to be provided and put in evidence. There is no suggestion, that either party was at fault in not resolving these issues prior to the hearing. Nor in the apparent lack of attempts to negotiate a settlement. It was a case which possessed all the ingredients of going to a hearing from the commencement of the action. In this sense the degree of success achieved by the claimants seems to me to be a relevant consideration and has caused the -- 7 of 8 -- - Page 8 - balance to sway towards the claimants. I am of the opinion that the claimants are entitled to costs. Accordingly in the exercise of the Court's discretionary powers it is ordered that the constructing authority pay the claimants' costs of and incidental to the hearing and determination of the claim save for costs of the adjournment of the hearing from 1st May, 1992 for which I make no order (a decision on which was reserved). The amount of such costs shall be ascertained and fixed by the costs taxing officer of the Supreme Court in Brisbane according to the scale of costs prescribed by law for the time being in respect of the proceedings in the Supreme Court and in accordance with the provisions of Section 41(9) of the Land Act 1962. (D M White) Member of the Land Court. -- 8 of 8 --