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Vass v Coordinator-General (No. 2)[2015] QLAC 2

Vass v Coordinator-General (No. 2)[2015] QLAC 2

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Vass and Lambert v Coordinator-General (No. 2) [2015] QLAC 2

PARTIES:

JAMES VASS, TAMMY RENEE PTY LTD (ACN112 651 171) AS TRUSTEE FOR THE TRP DISCRETIONARY TRUST and TAMMY RENEE LAMBERT

(appellants)

v

COORDINATOR-GENERAL

(respondent)

FILE NO:

Appeal No. LAC010-13

Land Court No. AQL031-11

ORIGINATING COURT:

Land Court of Queensland

PROCEEDING:

Costs of Land Court proceedings and costs of appeal

DELIVERED ON:

6 March 2015

DELIVERED AT:

Brisbane

DATE OF HEARING:

Written submissions filed on 5, 9 and 10 December 2014

THE COURT:

Peter Lyons J

CAC MacDonald, President of the Land Court

WA Isdale, Member of the Land Court

ORDERS:

  1. Leave is given to amend the names of the appellants to James Vass, Tammy Renee Pty Ltd (ACN 112 651 171) as trustee for the TRP Discretionary Trust and Tammy Renee Lambert.
  1. Compensation is determined in the sum of $206,276.
  1. The respondent is ordered to pay the unpaid compensation as follows:
  1. (a)
    $23,192 to Tammy Renee Pty Ltd as trustee for the TRP Discretionary Trust;
  1. (b)
    $61,808 to Tammy Renee Lambert and James Vass;
  1. (c)
    $29,000 to Tammy Renee Lambert and James Vass.
  1. The respondent is ordered to pay the appellant Tammy Renee Pty Ltd as trustee for the TRP Discretionary Trust interest on the sum of $23,192 at the rate of 4.5% from and including the date of resumption up to and including 31 December 2014 and at the rate of 2.64% on and from 1 January 2015 up to and including the day immediately preceding the date on which compensation is paid.
  1. The respondent is ordered to pay the appellants Tammy Renee Lambert and James Vass interest on the sum of $90,808 at the rate of 4.5% from and including the date of resumption up to and including 31 December 2014 and at the rate of 2.64% on and from 1 January 2015 up to and including the day immediately preceding the date on which compensation is paid.
  1. The respondent is ordered to pay the appellants’ costs of and incidental to the proceedings in the Land Court, to be assessed on the standard basis.
  1. The respondent is ordered to pay the appellants’ costs of and incidental to the appeal to the Land Appeal Court, to be assessed on the standard basis. 

CATCHWORDS:

JURISDICTION AND POWERS OF THE LAND APPEAL COURT – COSTS – COMPULSORY ACQUISITION – application for costs in the Land Court – whether the Land Appeal Court has jurisdiction and power to award such costs – where there was no costs decision in the Land Court.

COSTS – s 27 Acquisition of Land Act 1967 – identification of “the amount finally claimed by the claimant” – where the amount claimed in final submissions differed from the original (amended) claim – whether leave to amend the claim was required under s 24(3) of the Acquisition of Land Act – meaning of the phrase “the amount of the valuation finally put in evidence” by the respondent – whether disturbance costs are relevant.

COSTS – costs of appeal to Land Appeal Court – ss 34 and 72 Land Court Act 2000 – factors governing the exercise of discretion – where the appellants were only partially successful on appeal – full costs awarded

Acquisition of Land Act 1967

Acts Interpretation Act 1954

Land Court Act 2000

Water Act 2000

Commissioner for Railways v Buckler [1996] 1 Qd R 18

Gallo v Department of Environment and Resource Management (No. 2) [2014] QLAC 11

Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq)(No. 2) (2013) 33 QLCR 43

Ostroco v Department of Transport and Main Roads (No. 3) [2014] QLAC 7

Wyatt v Albert Shire Council [1987] 1 Qd R 486

APPEARANCES:

PW Hackett of Counsel for the appellants

EJ Morzone of Counsel for the respondent

SOLICITORS:

H Drakos and Company for the appellants

Clayton Utz for the respondent

  1. [1]
    The Court:  On 28 November 2014, this Court handed down its reasons for judgment in respect of an appeal from the Land Court of Queensland.  The proceedings concerned the determination of compensation for compulsory acquisition of an interest in land, on 31 October 2008, under the Acquisition of Land Act 1967.  The appellants had conducted a hairdressing and beauty business in part of a building constructed on the resumed land.  The appeal was successful and the Land Appeal Court determined compensation as follows -

Business losses (excluding losses relating to the beauty

component of the business)    $84,852 rounded to     $85,000

Loss of beauty component          $29,000

Loss of value of the business          $80,000

Disturbance             $12,276

The total compensation to be paid is $206,276. 

  1. [2]
    At the time the reasons for judgment of the Land Appeal Court were published, directions were made for the parties to provide submissions as to the apportionment of the award for business losses (because the business was conducted by different entities during the period covered by the compensation award), interest, and costs both in the Land Court and the Land Appeal Court.  Those submissions have been filed.

Apportionment of business losses

  1. [3]
    The Land Court had awarded compensation in the sum of $92,276 together with interest.  That sum was made up of $80,000 being loss in value of the business from the date of resumption and $12,276 for disturbance. 
  2. [4]
    We have been advised that on 4 December 2013 the respondent paid the sum of $114,761.36 to the appellants, that sum being made up of the value of the hairdressing business ($80,000), disturbance ($12,276) and interest as agreed between the parties[1]. 
  3. [5]
    The remaining business losses comprise two components, $85,000 for loss of profits of the hairdressing business, and $29,000 for the loss of the beauty salon.  Subject to an immaterial discrepancy in the figures used by the parties, the parties are agreed on the appropriate apportionment.  They submitted that the amount of $85,000 should be apportioned as follows:
    1. Tammy Renee Pty Ltd as trustee for the TRP Discretionary Trust $23,192
    2. Tammy Renee Lambert and James Vass $61,808
  4. [6]
    At the request of the appellants, leave is given to amend the names of the appellants in this proceeding to James Vass, Tammy Renee Pty Ltd ACN 112 651 171 as trustee for the TRP Discretionary Trust and Tammy Renee Lambert to enable the award to be apportioned appropriately.
  5. [7]
    The parties are also agreed that the amount of $29,000 payable in respect of the loss of the beauty business should be awarded to Tammy Renee Lambert and James Vass. 
  6. [8]
    We accept those submissions which will be reflected in the orders.

Interest

  1. [9]
    Section 28 of the Acquisition of Land Act 1967 provides that:

"28  Interest

  1. (1)
    Subject to subsection (2), in respect of the period or any part of the period commenced on and including the date on and from which any land is taken and ending on and including the day immediately preceding the date on which payment of compensation is made the Land Court or, upon appeal, the Land Appeal Court may order that interest be paid upon the amount of compensation determined by it.
  1. (1A)
    Such interest shall be at such rate per centum per annum as the Land Court or, upon appeal, the Land Appeal Court, deeming reasonable, fixes by the order.
  1. (1B) Interest so ordered to be paid shall be payable as if it were part of the compensation in question and shall be added to the amount thereof and be payable by the constructing authority accordingly.
  1. (2)
    Interest shall not be payable in respect of any amount of compensation advanced under section 23."
  1. [10]
    It appears that no advance was paid to the appellants under s 23 of the Act and there has been no submission that interest should not be paid for any relevant period.  The Land Court’s published Interest Rates[2] provide interest rates until the end of 2014.  The average from 2008 to 2014 is 4.5%.  The Court’s published rates are sourced from the Reserve Bank of Australia’s Interest Rates – Capital Market Yields – Government Bonds – Monthly (10 years).  The Reserve Bank’s published rate for January 2015 is 2.64%. 
  2. [11]
    Accordingly we consider that it is reasonable that interest should be paid on the unpaid compensation as follows - interest at the rate of 4.5% on each of the amounts payable for loss of profits ($23,192 and $61,808) and on the amount of $29,000 awarded for the loss of the beauty business from and including the date of resumption up to and including 31 December 2014, and at the rate of 2.64% on and from 1 January 2015 up to and including the day immediately preceding the date on which payment of compensation is made.  

Costs in the Land Court

  1. [12]
    The appellants have sought an order that the respondent pay the appellants’ costs of and incidental to the proceedings in the Land Court.  The respondent submitted that this Court should order that each party bear their own costs in the Land Court. 
  2. [13]
    Section 34 of the Land Court Act 2000 provides that:

"34  Costs

  1. (1)
    Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate.
  1. (2)
    If the court does not make an order under subsection (1), each party to the proceeding must bear the party’s own costs for the proceeding."
  1. [14]
    Section 27 of the Acquisition of Land Act is a provision to the contrary and it therefore prevails over s 34 for the purposes of determining the costs of the Land Court proceedings.  Section 27 provides that:

"27  Costs

  1. (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.
  1. (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.
  1. (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) or section 25(3)."

Jurisdiction of Land Appeal Court to order costs in Land Court

  1. [15]
    The Land Court has not made a costs order in respect of the proceedings below.  It appears that, as the parties were unable to agree on the costs to be paid, they were directed by the Court to file costs submissions.  Such submissions were filed but, because the compensation award was appealed to this Court, the Land Court did not make a costs determination.
  2. [16]
    The absence of an order for costs below raises a question as to whether this Court has the jurisdiction and/or power to award costs in respect of the Land Court proceedings.  Although the parties did not raise this as an issue in their costs submissions to this Court, it is necessary for us to deal with it because the matter goes to the jurisdiction of the Court.
  3. [17]
    Section 54 of the Land Court Act provides that:

“54  Jurisdiction of Land Appeal Court

The Land Appeal Court has the jurisdiction given to it under this Act or another Act.”

  1. [18]
    Section 64 provides that:

“64  Right of appeal to Land Appeal Court

A party to a proceeding in the Land Court may appeal to the Land Appeal Court against all or part of the decision of the Land Court.”

  1. [19]
    Section 57 provides:

"57  Powers of Land Appeal Court

The Land Appeal Court may do 1 or more of the following -

  1. (a)
    suspend the operation of the decision and remit the matter, with or without directions, to the court or tribunal that made the decision to act according to law; 
  2. (b)
    affirm, amend, or revoke and substitute another order or decision for the order or decision appealed against;
  3. (c)
    make an order the Land Appeal Court considers appropriate."
  1. [20]
    There are cases where this Court has awarded costs of the proceedings in the Land Court although there was no costs decision by the Land Court and, therefore, no appeal about costs to this Court – see, for example, Ostroco v Department of Transport and Main Roads (No. 3)[3] which, like the present matter, was a case dealing with compensation for the compulsory acquisition of land.  The Land Appeal Court’s jurisdiction to award such costs was not discussed by the Court in Ostroco. 
  2. [21]
    In Gallo v Department of Environment and Resource Management (No. 2)[4], the proceedings concerned an appeal under the Water Act 2000 in respect of a water licence issued under that Act.  The appellants succeeded in their appeal to the Land Appeal Court and, accordingly, sought an order for costs of the proceedings in the Land Court and the Land Appeal Court.  There had been no application by either party to the Land Court for costs of the Land Court proceedings and, consequently, there was no appeal to the Land Appeal Court from a decision of the Land Court about the costs of the Land Court proceedings.  The respondent submitted that the Land Appeal Court had no power to award costs of the Land Court proceeding in the absence of an appeal against a costs decision of the Land Court.
  3. [22]
    A majority of the Land Appeal Court held, for differing reasons, that the Land Appeal Court did have jurisdiction to deal with the application for costs of the Land Court proceedings[5]. 
  4. [23]
    Section 882(4) of the Water Act governed the award of costs of the Land Court proceeding in such a matter and relevantly provided:

“882  Powers of court on appeal -

…

  1. (3)
    Each party to the appeal must bear the party’s own costs for the appeal.
  1. (4)
    However, the court may order costs for the appeal, including allowances to witnesses attending for giving evidence at the appeal, as it considers appropriate in the following circumstances –

…

  1. (b)
    the court considers the appeal, or part of the appeal, to have been frivolous or vexatious; 

…

  1. (f)
    without limiting paragraph (d), a party has incurred costs because another party has introduced, or sought to introduce, new material;
  1. (g)
    a party to the appeal does not properly discharge its responsibilities in the appeal.”
  1. [24]
    Henry J held that, in the circumstances of the case, the Land Appeal Court did not have jurisdiction to deal with the appellants’ claim to the Land Appeal Court for costs of the Land Court proceedings as neither s 57(b) or (c) of the Land Court Act authorized such an order. 
  2. [25]
    His Honour said that, although s 57(b) authorized the Land Appeal Court to substitute another order or decision for that of the Court below, the costs order sought by the appellants was not within the potential range of decisions or orders that the Land Court could have made when handing down its substantive decision.  This was because, even if the appellants had succeeded at first instance, the learned Member was not, at the time the decision was handed down, seized of the issues relevant to costs.  Further argument and perhaps evidence would have been necessary to establish the presence of one of the circumstances listed in s 882(4) of the Water Act.  An order as to costs was not consequential on the decision[6].
  3. [26]
    Nor did s 57(c) empower the making of such a costs order.  A pre-condition of the exercise of the power in s 57(c) to make an order that the Land Appeal Court considers appropriate, as with the rest of s 57, is the existence of jurisdiction to deal with the issue.  The costs order sought was not within the jurisdictional range of potential determination of the decision under appeal to the Land Appeal Court and therefore did not fall within the jurisdiction of the Land Appeal Court to decide the appeal before it[7]. 
  4. [27]
    Henry J also considered the Land Appeal Court’s decision in Ostroco v Department of Transport and Main Roads (No. 3)[8].  He said that decision was of no relevance to the issue as the Land Appeal Court in Ostroco did not consider the jurisdictional limitations of the powers conferred by s 57.  In any event the Court in Ostroco was dealing with the costs provision in s 27 of the Acquisition of Land Act which was markedly different from s 882 of the Water Act.  His Honour said that while costs remain discretionary under s 27, it was clear that the question of what, if any, order as to costs was made was, to a substantial degree, determined in consequence of the decision below as to the quantum of compensation.  By contrast, s 882 contained no such consequential link between the outcome of the decision and an award of costs.  After consideration of other submissions that it is unnecessary to detail here, his Honour concluded that the Land Appeal Court should not determine the issue of costs below[9]. 
  5. [28]
    MacDonald P held that the Land Appeal Court did have jurisdiction to deal with the application for the costs of the Land Court proceedings.  In her opinion, the appellants’ request for those costs was properly characterized as an application, not an appeal against a decision of the Land Court.  Although there was no express grant of jurisdiction to the Land Appeal Court to deal with that application, a grant of such jurisdiction could be implied from the jurisdiction and powers expressly granted to the Land Appeal Court in ss 54, 57 and 64 of the Land Court Act.  Section 882(4) of the Water Act gave the Land Court jurisdiction and power to award costs in certain limited circumstances, consequent upon its jurisdiction to deal with the substantive matter before it.  In the same way, the Land Appeal Court had, by necessary implication, jurisdiction to deal with the costs of the Land Court proceedings consequent upon the Land Appeal Court’s jurisdiction to deal with the appeal.  The Land Appeal Court had power to make such a costs order under s 57(c) of the Land Court Act[10].
  6. [29]
    The third Member of the Court, Mr Evans, held that the Land Appeal Court had jurisdiction to deal with the costs of the Land Court proceedings because the Land Appeal Court has jurisdiction, under s 64 of the Land Court Act, to deal with an appeal against all or part of the decision of the Land Court. Section 882(3) of the Water Act provides that each party to the appeal must bear the party’s own costs for the appeal except in the circumstances identified in s 882(4).  The decision of the Land Court encompassed the costs below because the decision triggered the final operation of the position in s 882(3) when no application was made for costs by any party under s 882(4) within a reasonable time of the Land Court decision being given.  The decision of the Land Court could be said to include the question of costs, by operation of s 882(3), for the purposes of s 64 of the Land Court Act[11].
  7. [30]
    There is no clear ratio in this case.  In any event, the case is distinguishable from the matter before us in that it was concerned with proceedings under the Water Act. 
  8. [31]
    Although s 64 of the Land Court Act gives parties to a proceeding in the Land Court a right to appeal to the Land Appeal Court, there is no provision of that Act by which jurisdiction to determine such an appeal is expressly “given” (see s 57 of the Land Court Act) to the Land Appeal Court; nor is there a provision defining the boundaries of the jurisdiction.  The conferral of jurisdiction, and its boundaries, are to be inferred from other provisions of that Act.  Paragraphs (b) and (c) of s 57 show that the Land Appeal Court may, in addition to altering the effect of the decision appealed against, make other orders.  Its power to do so is in addition to the powers conferred on it through the operation of s 72, including the power to make directions.  While the scope of the power to make orders under s 57(c) is not unlimited, there is no reason to think that it was not intended to permit the Land Appeal Court to make orders sufficiently related to any determination it makes in relation to the Land Court’s decision.  An order for the final disposition of the costs of a proceeding for the determination of a claim for compensation in the Land Court, which is inevitably closely linked to the outcome of the claim, is such an order.  The statutory context therefore indicates, and we conclude, that this Court has jurisdiction to make an order for such costs, when it determines a claim for compensation.

Determination of costs in the Land Court

  1. [32]
    The costs of the Land Court proceedings are to be determined in accordance with s 27 of the Acquisition of Land Act which requires the application of a two-stage process in deciding the incidence of costs.  The first is to determine whether the appellants are eligible for an award of costs under s 27(2) of the Acquisition of Land Act.  The second is that the Court              should determine, in the exercise of its discretion, whether costs should be awarded to the eligible party, in the circumstances of the case (s 27(1)).
  2. [33]
    Section 27(2) requires a comparison of “the amount finally claimed by the claimant” with “the amount of the valuation finally put in evidence by the constructing authority” to determine which is nearer to the amount of compensation as determined.  The parties are in dispute as to both these elements. 
  3. [34]
    It is necessary to identify the amount finally claimed by the claimants.  Leave was given by the Land Court to the appellants to amend their claim to $352,437.16 as set out in their Amended Points of Claim[12].  An amount of $344,146.86 was claimed in their final submissions[13].  It appears that the difference in the quantum of those claims was caused by -
  • a reduction in the claim for loss of profits from $91,000 to $84,852, a difference of $6,148;  and
  • a reduction in the claim for disturbance from $15,637.16 to $13,503,60, a difference of $2,133.56, caused by the mistaken inclusion, twice, of an invoice for legal costs.
  1. [35]
    The respondent submitted that the amount last formally claimed by the appellants, $352,437.16, was the relevant figure because no leave was granted to amend the claim to $344,146.86.  Although the respondent did not expand on that submission, it appears to be a reference to s 24(3) of the Acquisition of Land Act which provides that: 

“24  Reference of claim for compensation to Land Court

…

  1. (3)
    The claimant shall not amend the claim filed by the claimant 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).”
  1. [36]
    It also appears that the respondent is suggesting that the effect of s 24(3) is that the reduction by the appellants of their claim, in their final submission, was not effective to make the lower amount “the amount finally claimed by the claimant” as no leave was granted to amend the claim to that amount.  No authority was cited by the respondent in support of that proposition.
  2. [37]
    The terms of s 24(3) are mandatory - the “claimant shall not amend the claim filed … except upon leave”.  The word “claim” is not defined in the Acquisition of Land Act or the Acts Interpretation Act 1954.  However s 19 of the Acquisition of Land Act sets out the requirements of a claim for compensation and, in particular, s 19(1)(e) says that the claim shall contain “the total amount of compensation claimed”.  The effect of s 24(3) is, we consider, that any alteration to the claim, including the quantum of compensation sought, is not effective as an amendment to the claim unless the Court has granted leave.  On that basis, we consider that, when s 27(2) refers to “the amount finally claimed by the claimant in the proceedings” the words “finally claimed” are to be construed as referring to the final amount for which the Court’s leave to amend was given.  In this case, that amount is $352,437.16. 
  3. [38]
    We have been unable to locate any case where the Land Court or this Court have been called on to decide this issue.  Nevertheless, our conclusion is consistent with such authority as there is.  In Commissioner for Railways v Buckler[14] the Court of Appeal was concerned with the interpretation of the words in s 27(2), “the amount of the valuation finally put in evidence by the constructing authority”.  McPherson JA was the only member of the Court to consider the phrase, “the amount finally claimed by the claimant”.  His Honour said[15]:

“Section 27(2) of the Acquisition of Land Act 1967 is thus the third in this line of attempts to resolve the question by means of a statutory provision governing costs.  It preserves the device used in the earlier two provisions of treating nearness to the amount awarded as decisive, but does so with two changes.  One is that, in deciding the question, it is not the first amount but the “final” amount claimed by the claimant that is relevant;  the other is that it is not the amount of any offer made by the constructing authority but “the amount of the valuation finally put in evidence by the constructing authority” that matters.

Stated in general terms, what the court is now required to do in fixing the incidence of costs under this rule is look to the final positions taken up by the parties.  In the case of the claimant, it is the quantum of compensation last claimed.  Theoretically at least, its amount might not be known until the final address of counsel for the claimant.  In practice, however, s. 24(2A) furnishes a disincentive against conduct like that.  It does so by restricting the right to amend a claim once it has been filed in accordance with s. 24(2A) of the Act.  Thereafter an amendment may be allowed;  but on terms including payment of costs:  see s. 24(3).

On the other hand, there seems to be no comparable restriction preventing the constructing authority from deferring disclosure of its final position until a late stage of the proceedings. It will be discoverable only from "the amount of the valuation finally put in evidence by the constructing authority", which means that it cannot with confidence be known what the amount of it is until the constructing authority closes its case.”

  1. [39]
    That approach was adopted by the Land Appeal Court in Chief Executive, Department of Transport v Nadco Pty Ltd[16].  Similarly, in Murray Investments Pty Ltd v Chief Executive, Department of Main Roads[17], the then President said:

“Therefore, for the purposes of ascertaining which party would be entitled to be awarded costs under s 27(2) of the Act, the final position taken up by the claimant is the amount of compensation last claimed, be it the original claim, or a claim amended by leave under s 24(3).”

  1. [40]
    We turn now to consider the phrase “the amount of the valuation finally put in evidence by the respondent”.  The crux of the dispute between the parties as to the application of this phrase concerns the respondent’s response to the appellants’ disturbance claim.  The respondent submitted that the valuation finally put in evidence by the respondent was $50,000 to $80,000[18] plus disturbance agreed at $12,276.  For the purpose of this exercise, the lower amount, $50,000, plus disturbance, should be treated as the amount of the valuation finally put in evidence, the respondent said.  
  2. [41]
    The appellants submitted that, in considering s 27(2) of the Acquisition of Land Act, like should be compared with like.  In particular, on the basis that the appellants’ final “pleaded” position was $352,437.16, that should be compared with the respondent’s final pleaded position:
    1. (a)
      The respondent’s final “pleaded” position was compensation of $50,000 for loss of the business and the respondent did not include any amount for disturbance costs[19]. 
  1. (b)
    The respondent’s final written and oral submissions, consistent with the non-admission of disturbance costs in the Amended Defence were silent on disturbance costs or the quantum of same.
  1. (c)
    The concession concerning disturbance costs (less GST) was only made orally after the appellants’ oral submissions and at the behest of the Member who encouraged an appropriate concession given the invoices were in evidence.  Even then the transcript shows that initially the respondent was prepared to agree to Mr Wright’s invoice but not the GST component and that concession eventually evolved to Mr Vass’ affidavit.  As a consequence, the dispute became one concerning GST only, as the Member’s reasons for judgment make clear at [195] to [202].  The dispute concerning GST was not pleaded by the respondent (it in fact put all of the quantum in issue). 
  1. [42]
    The meaning of the phrase “the amount of the valuation finally put in evidence by the constructing authority” was discussed by all the members of the Court of Appeal in Commissioner for Railways v Buckler[20].  Fitzgerald P held that the “valuation” could only sensibly mean the constructing authority’s “valuation” of the compensation to which, in its view, the claimant is entitled[21].  Pincus JA rejected the possibility that s 27(2) required a comparison between the amount of compensation finally claimed by the claimant, on the one hand, and the constructing authority valuer’s valuation of the land taken on the other.  Where there are substantial factors in the assessment of compensation other than the value of the land taken, such as damage by severance, or enhancement, the two are not comparable and the comparison may become almost absurd[22].  His Honour concluded that “[a]lthough it involves a slight straining of language, the expression “the amount of the valuation” must be read as a reference to the valuation of the right to claim compensation, created by s 12(5) of the Act”[23].  McPherson JA said that compensation is to be assessed according to the value of the estate or interest taken, to which must be added the damage if any caused by severance from and injurious affection to other land of the claimant; from that total there must be deducted any enhancement of the value of the claimant’s interest in any land adjoining the land taken or severed by the carrying out of the works or purpose for which the land is taken[24].  His Honour said, “[m]y conclusion is that the expression “valuation” in s 27(2) refers to the constructing authority’s assessment of the compensation payable, which in the ordinary way will be contained in a valuation report put in evidence in the proceedings”[25].
  2. [43]
    The Court of Appeal in Buckler did not discuss whether a claim for disturbance losses is to be treated as part of the “amount finally claimed” by the claimant and/or “the amount of the valuation finally put in evidence” by the constructing authority.  Although at the date of acquisition of the subject land, the Acquisition of Land Act did not expressly provide in s 20 that disturbance losses were to be compensated[26], it has long been recognized that such losses are compensable, as part of the value to the dispossessed owner.  Thus in The Commonwealth v Milledge[27] Dixon CJ and Kitto J said:

“There remains the item of the plaintiff’s claim described as business disturbance.  Though it was considered convenient in this case, as it often is, to deal with this topic as a separate matter, it must always be remembered that disturbance is not a separate subject of compensation.”

  1. [44]
    In Horn v Sunderland Corporation[28], Greene MR said that disturbance is:

“not a separate head of compensation such as compensation for injurious affection, but merely one of the elements going to build up the purchase price to which the owner was fairly entitled in the circumstances of the case.”

  1. [45]
    It follows that for the purpose of determining the amount finally claimed by the appellants and the amount of the valuation put in evidence by the respondent, both the value of the business and the disturbance costs are relevant.
  2. [46]
    It is necessary for us to determine the amount of the valuation finally put into evidence by the respondent at the close of its case, not the amount contended for by the respondent in final submissions, if that is a different figure.  As McPherson JA noted in Buckler, the amount of the valuation finally put in evidence by the constructing authority means that it cannot with confidence be known what the amount of it is until the constructing authority closes its case[29].
  3. [47]
    The respondent’s Amended Points of Defence were filed on 15 November 2011, the second day of the hearing below[30].  Paragraphs 8 and 9 say –

“8. As at the date of acquisition:

  1. There was no intrinsic value to the applicant’s business save and except for a wage for the applicants;
  1. A prudent purchaser may have been prepared to pay a price of $50,000 to acquire the business Allure Salons and obtain a wage for himself or herself;
  1. The value of the business was approximately $50,000.

9. As to paragraph 15:

  1. the respondent admits the applicants are entitled to disturbance comprising for valuation and legal costs;
  1. cannot and does not admit the quantum of such disturbance claim until such claim is fully particularised by the applicants and the respondent has completed all reasonable investigations and enquiries as to such claim.”
  1. [48]
    It is not in dispute that the evidence called by the respondent, given by Mr Calabro, supported the valuation of the business at $50,000. 
  2. [49]
    The disturbance claims were verified by an affidavit of Mr James Vass filed on 15 June 2011.  Exhibit JV 17 thereto shows:

Amount GST   Total

Valuation fees (Mr Wright)   $7,500  $750   $8,050

Legal fees (Hopgood Gamin)   $4,212.33 $421.23   $4,633.56

Further legal fees (Hopgood Gamin)    $563.67   $56.37     $620.14

  1. [50]
    The question of disturbance was raised by the Land Court on Day 1 of the hearing.  Counsel for the respondent, Mr Morzone, said that agreement had not been reached because the respondent had not seen any itemised invoices.  This is surprising as Mr Vass’ affidavit, with copies of the relevant invoices exhibited at JV 17, had been filed on 15 June 2011. 
  2. [51]
    Mr Morzone submitted to this Court that on Day 3 of the hearing below he had informed the Land Court of an agreement of a figure for disturbance having “only lately occurred … today some time”.  Mr Morzone went on to submit to us that “agreement was reached, during the course of the third day of trial and that the agreed amount fairly should be considered to be included in the respondent’s amount of valuation finally put in evidence”[31].
  3. [52]
    We do not consider that the exchange which took place on the third day of the hearing below is properly reflected in those submissions.  The transcript shows that on Day 3 of the hearing the issue of Mr Wright’s fees was raised by Mr Hackett in the course of cross-examining Mr Calabro[32].  No other disturbance item was referred to at that time.  Mr Morzone’s response was “that that figure for disturbance had been agreed”.  Given the context, we consider that the only construction to be put upon what was said was that it was Mr Wright’s fees alone that were conceded. 
  4. [53]
    Subsequently, after the parties had completed their final submissions, the Member below enquired as to the position of the disturbance items.  Mr Morzone responded that there was an agreement as to Mr Wright’s account of $7,500 but not the GST.  When the Member enquired as to the other items, Mr Morzone said they were all similar – they were agreed without the GST component[33].
  5. [54]
    The best that can be said about the respondent’s “valuation finally put in evidence” was that, at the close of its case, the respondent’s evidence was that the value of the business was $50,000 and the respondent               had conceded $7,500 for Mr Wright’s fees.  That is, the amount of the valuation finally put in evidence by the respondent was $57,500.  The remaining disturbance claims were not dealt with in evidence and the respondent’s position with respect to them was only clarified in submissions, after its case was closed.
  6. [55]
    For the purposes of s 27(2), the amount finally claimed by the appellants was $352,437.66.  The amount of the valuation finally put in evidence by the constructing authority was $57,500.  The judgment of this Court was that compensation was payable in the sum of $206,276.  The appellants’ final claim was closer to the Court’s determination than the respondent’s.  Accordingly the appellants are eligible for an award of costs under s 27(2). 
  7. [56]
    The respondent did not submit that the appellants should be deprived of their costs if, as has occurred, the final amount claimed by the appellants was nearer to the compensation determination than the valuation finally put in evidence by the constructing authority.  Accordingly, we consider that the respondent should pay the appellants’ costs of and incidental to the proceedings in the Land Court as the appellants were successful in their claim for compensation.

Costs of appeal to Land Appeal Court

  1. [57]
    The appellants have sought an order that the respondent pay the appellants’ costs of the appeal to the Land Appeal Court. 
  2. [58]
    Section 27(3) of the Acquisition of Land Act provides that s 27(2) does not apply to any appeal in respect of the decision of the Land Court.  Accordingly s 34 of the Land Court Act applies by virtue of the operation of s 72 of that Act. 
  3. [59]
    The effect of s 34(1) is that this Court has complete discretion as to the award of the costs of the appeal.  That discretion is to be exercised judicially, that is for reasons that are not arbitrary and can be justified[34].  One factor to be taken into account is the outcome of the litigation.  Thus in Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq)(No. 2) [35], the Land Appeal Court said:

“Hence the Land Appeal Court may order costs “as it considers appropriate”.  The discretion to award costs is unfettered.  However the rule often followed, and the rule incorporated in r 689 of the Uniform Civil Procedure Rules 1999, is that costs follow the event.  That rule, while it does not govern the exercise of the discretion here, nonetheless informs it, as there is justice in that approach.  It protects those put to unnecessary and substantial expense at the behest of others.  There is no reason here why costs should not follow the event in the usual way.” 

  1. [60]
    The appellants succeeded in the appeal to this Court.  However, the respondent submitted that the success of the appellants in the Land Appeal Court was counter-balanced by the success of the respondent in resisting that part of the appeal concerning the relocation costs.  In monetary terms, the appellants obtained an additional award of $114,000 in the Land Appeal Court, for loss of profits and loss of the beauty business.  The respondent successfully resisted a claim for an additional $136,800 (being the full award of relocation costs of $216,800 less the business value of $80,000 awarded in the Land Court).  Accordingly, the respondent submitted, the success of each party was best reflected by each party bearing their own costs with no orders made as to the costs of the appeal to the Land Appeal Court.  Alternatively, as the appellants were only partially successful in the appeal, any costs ordered should be proportional to the extent of that success, namely approximately one third.
  2. [61]
    There is authority that the Land Appeal Court, in the exercise of its discretion under s 34, may order less than full costs to a successful appellant landowner in a compulsory acquisition case.  For example, in Mio Art v Brisbane City Council (No. 3)[36] the Land Appeal Court ordered the respondent to pay 75% of the successful appellant’s costs.  The Court took into account the fact that the appellant was justified in pursuing its claim as it resulted in an increased award of $1,400,000, and the relative success of the parties[37].
  3. [62]
    In this matter we consider that it is also relevant to take into account the fact that these proceedings concern compensation for the compulsory acquisition of land although that was not a matter expressly referred to in Mio Art, which was also a compulsory acquisition case.  In Barns v Director-General, Department of Transport[38], the Land Appeal Court said: 

"This Court has an unfettered discretion as to the costs of and incidental to an appeal before it.  An unfettered discretion is not an unprincipled one, and on ordinary principles, costs in circumstances such as these would follow the event.  The general rule that costs will usually follow the event is one which is deeply embedded in our law.  …

The respondent submitted that the rule is not always applied by Courts exercising jurisdiction in land compensation matters.  He cited Moyses v. Townsville City Council, Theo v. Brisbane City Council, Minister for the Environment v. Florence and Banno v. Commonwealth of Australia.  Those cases show that in compensation cases, the Land Court must take into account the fact that an appeal to that court is the only way in which a dispossessed owner can obtain an independent determination of the value of the land taken.  As Wilcox J said in Banno:

‘The acquisition left the applicants in the position of either accepting the Commonwealth’s assessment of the proper compensation or of having the Court rule on its adequacy.  Perhaps people in that position should be allowed access to the Court, to present an arguable and well organized case, without being deterred by the prospect of being ordered to pay the Commonwealth’s costs if their case proves unpersuasive.  I distinguish the case of resumees who pursue a vexatious, dishonest or grossly exaggerated claim or present their case in such a way as to impose unnecessary burdens on the Commonwealth or the Court.’

Those cases justify some flexibility in the application of the general rule against a dispossessed owner.  They contain no support for a departure from the rule as against a resuming authority in circumstances where the rule would ordinarily be applied.”

  1. [63]
    We consider that this is a case where our discretion should be exercised in favour of the appellants such that the respondent should be ordered to pay the appellants’ costs of the appeal. 
  2. [64]
    In coming to that conclusion we have taken into account that, although the appellants in this matter were not completely successful in the appeal, there is no suggestion that they pursued a vexatious, dishonest or grossly exaggerated claim.  Further this is a compulsory acquisition case and the only way in which the appellants obtained an additional award of $114,000 was by pursuing this appeal.  It is true that the appellants failed in their claim for an additional $136,800 for relocation costs but in the circumstances of this appeal we do not consider that pursuit of that claim added significantly to the costs of the appeal.  Although the appeal hearing extended into a second day, it appears that the principal reason for that was an unsuccessful application by the respondent for leave to admit new evidence on the hearing of the appeal, which occupied a substantial part of the first morning of the hearing.  Little time was spent at the appeal hearing by either Counsel addressing the issue of the relocation costs as Counsel were content to rely on their written outlines in this regard. 

ORDERS

  1. Leave is given to amend the names of the appellants to James Vass, Tammy Renee Pty Ltd (ACN 112 651 171) as trustee for the TRP Discretionary Trust and Tammy Renee Lambert.
  1. Compensation is determined in the sum of $206,276.
  1. The respondent is ordered to pay the unpaid compensation as follows:
  1. (a)
    $23,192 to Tammy Renee Pty Ltd as trustee for the TRP Discretionary Trust;
  1. (b)
    $61,808 to Tammy Renee Lambert and James Vass;
  1. (c)
    $29,000 to Tammy Renee Lambert and James Vass.
  1. The respondent is ordered to pay the appellant Tammy Renee Pty Ltd as trustee for the TRP Discretionary Trust interest on the sum of $23,192 at the rate of 4.5% from and including the date of resumption up to and including 31 December 2014 and at the rate of 2.64% on and from 1 January 2015 up to and including the day immediately preceding the date on which compensation is paid.
  1. The respondent is ordered to pay the appellants Tammy Renee Lambert and James Vass interest on the sum of $90,808 at the rate of 4.5% from and including the date of resumption up to and including 31 December 2014 and at the rate of 2.64% on and from 1 January 2015 up to and including the day immediately preceding the date on which compensation is paid.
  1. The respondent is ordered to pay the appellants’ costs of and incidental to the proceedings in the Land Court, to be assessed on the standard basis.
  1. The respondent is ordered to pay the appellants’ costs of and incidental to the appeal to the Land Appeal Court, to be assessed on the standard basis.

PETER LYONS J

CAC MacDONALD

PRESIDENT OF THE LAND COURT

WA ISDALE

MEMBER OF THE LAND COURT

Footnotes

[1]  Respondent’s submission filed 5 December 2014, [10].

[2]  Published on the Land Court website.

[3]  [2014] QLAC 7.

[4]  [2014] QLAC 11.

[5]  MacDonald P and Member Evans;  Henry J dissenting as to reasons.

[6]  At [35]–[40].

[7]  At [41].

[8]  [2014] QLAC 7.

[9]Gallo v Department of Environment and Resource Management [2014] QLAC 11 at [41], [52].

[10]  At [77], [83], [84].

[11]  At [148]-[152].

[12]  Ex 34.  R 6/1230.

[13]  R 6/1239[56]. 

[14]  [1996] 1 Qd R 18.

[15]  At 23, 24.

[16]  (1997-98) 18 QLCR 408 at 417.

[17]  Unreported, Land Court of Queensland, 27 October 2000, at 3. 

[18]  Valuation of Mr Calabro, Ex 26, R6/1045. 

[19]  Amended Defence, [9], Ex 35, R6/1090.

[20]  [1996] 1 Qd R 18. 

[21]  At 19. 

[22]  At 21. 

[23]  At 23.

[24]  At 24.

[25]  At 25.

[26]  The relevant Reprint is 5A. 

[27]  (1953-1954) 90 CLR 157 at 164.

[28]  [1941] 2 KB 26 at 33.

[29]  [1996] 1 Qd R 18 at 24.  See also Ostroco Pty Ltd v Chief Executive, Department of Transport and Main Roads (No. 3) [2014] QLAC 7 at [26], [27].

[30]  Ex 35, R6/1087. 

[31]  Respondent’s Reply Submissions filed 10 December 2014 at [4][b] and [c]. 

[32]  T3- 98,99.  These pages of the transcript were not included in the Appeal Record Book.

[33]  T4- 98-100.  These pages were also not included in the Appeal Record Book.

[34]Wyatt v Albert Shire Council [1987] 1 Qd R 486 at 489. 

[35]  (2013) 33 QLCR 43 at [4] (citations omitted).

[36]  (2013) 34 QLCR 222.

[37]  See [25] – [31].

[38]  (1997) 18 QLCR 133 at 135, 136.

Close

Editorial Notes

  • Published Case Name:

    Vass and Lambert v Coordinator-General (No. 2)

  • Shortened Case Name:

    Vass v Coordinator-General (No. 2)

  • MNC:

    [2015] QLAC 2

  • Court:

    QLAC

  • Judge(s):

    Lyons J, MacDonald P, Member Isdale

  • Date:

    06 Mar 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Barns v Director General, Department of Transport (1997) 18 QLCR 133
1 citation
Jump To
Cite 1 - (1997) 18 QLCR 133
Commissioner for Railways v Buckler [1996] 1 Qd R 18
4 citations
Jump To
Cite 1 - [1996] 1 Qd R 18
Cite 2 - [1996] 1 Qd R 18
Cite 3 - [1996] 1 Qd R 18
Cite 4 - [1996] 1 Qd R 18
Gallo v Department of Environment and Resource Management (No. 2) [2014] QLAC 11
3 citations
Jump To
Cite 1 - [2014] QLAC 11
Cite 2 - [2014] QLAC 11
Cite 3 - [2014] QLAC 11
Horn v Sunderland Corporation (1941) 2 KB 26
1 citation
Jump To
Cite 1 - (1941) 2 KB 26
Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq)(No. 2) (2013) 33 QLCR 43
2 citations
Jump To
Cite 1 - (2013) 33 QLCR 43
Cite 2 - (2013) 33 QLCR 43
Mio Art Pty Ltd v Brisbane City Council (No 3) (2013) 34 QLCR 222
1 citation
Jump To
Cite 1 - (2013) 34 QLCR 222
Ostroco v Department of Transport and Main Roads (No. 3) [2014] QLAC 7
4 citations
Jump To
Cite 1 - [2014] QLAC 7
Cite 2 - [2014] QLAC 7
Cite 3 - [2014] QLAC 7
Cite 4 - [2014] QLAC 7
Wyatt v Albert Shire Council [1987] 1 Qd R 486
2 citations
Jump To
Cite 1 - [1987] 1 Qd R 486
Cite 2 - [1987] 1 Qd R 486

Cases Citing

Case NameFull CitationFrequency
Caseldan Pty Ltd v Moreton Bay Regional Council (No. 2) [2015] QLC 73 citations
Desbois v Chief Executive, Department of Transport and Main Roads (No 2) [2022] QLC 13 citations
ERO Georgetown Gold Operations Pty Ltd v Henry (No. 2) [2016] QLAC 31 citation
Mahoney v Chief Executive, Department of Transport and Main Roads (No. 5) [2016] QLC 363 citations
McDonald v Chief Executive, Department of Transport and Main Roads (No 2) [2016] QLC 82 citations
McDonald v Department of Transport & Main Roads [2015] QLC 282 citations
Zacsam Pty Ltd v Moreton Bay Regional Council (No. 2) [2016] QLC 314 citations
1

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