Sunshine Coast Regional Council v Leacy (No. 2)
[2016] QLAC 5
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- Sunshine Coast Regional Council v Leacy (No. 2)[2016] QLAC 5
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Sunshine Coast Regional Council v Leacy (No. 2)[2016] QLAC 5
Sunshine Coast Regional Council v Leacy (No. 2)[2016] QLAC 5
LAND APPEAL COURT OF QUEENSLAND
CITATION: | Sunshine Coast Regional Council v Leacy (No. 2) [2016] QLAC 5 |
PARTIES: | SUNSHINE COAST REGIONAL COUNCIL (appellant) v EDNA JOYCE LEACY AS PERSONAL REPRESENTATIVE OF THE ESTATE OF KENNETH GEORGE LEACY AND EDNA JOYCE LEACY (respondent) |
FILE NOS: | LAC No.002-15 Land Court No. AQL033-08 |
DIVISION: | Land Appeal Court of Queensland |
PROCEEDING: | Application for costs and interest |
ORIGINATING COURT: | Land Court at Brisbane |
DELIVERED ON: | 24 June 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Submissions on the papers |
JUDGE: | Peter Lyons J W.L. Cochrane (Member) W.A. Isdale (Member) |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – COSTS – Land Court – s 27 Acquisition of Land Act 1967 – party who can claim – position closer to compensation determined – Court to act judicially – relevant considerations – established principles – substantial success on claim – contested issues – correct conclusion – no order for costs. PROCEDURE – COSTS – Land Appeal Court – success on single issue – failure on other issues – balancing outcomes – respondent pay two thirds on standard basis. Banno v Commonwealth (1993) 45 FCR 32 Commissioner for Railways v Buckler [1996] 1 Qd R 18 JT and LJ Barnes v Director-General Department of Transport (1987) 18 QLCR 133 Leacy v Sunshine Coast Regional Council (No 2) [2015] QLC 39 Minister for Environment v Florence (1979) 21 SASR 108 North Albury Shopping Centre Pty Ltd v Albury Municipal Council (1983) 49 LGRA 215 Acquisition of Land Act 1967 Land Court Act 2000 |
COUNSEL: | D.R. Gore QC and M. Gynther for the applicant G.W. Diehm QC and S.M. Ure for the respondent |
SOLICITORS: | Garland Waddington for the applicant Butler McDermott Lawyers for the respondent |
THE COURT
- [1]On 21 June 2016 this Court delivered reasons in which compensation for the resumption of the respondent’s land was assessed at $3,428,321. The result, therefore, is that the appellant has successfully appealed against the determination of the Land Court of compensation in an amount of $4,562,544.
- [2]The appellant now seeks costs orders. It seeks an order that the respondent pay the appellant’s costs of, and incidental to, the appeal on the standard basis. It also seeks an order that the respondent pay 80 per cent of the appellant’s costs of the hearing in the Land Court, to be assessed on the standard basis.
Submissions
- [3]For the appellant, reliance was placed upon the substantial difference between the amount claimed by the respondent, and the ultimate determination of compensation[1]. The respondent had claimed $6,351,800 for compensation, with an additional amount for disturbance; while the appellant’s valuation finally put in evidence (and not including disturbance) was $2,570,000. Disturbance was fixed in the Land Court at $16,071, and was not in issue in this Court. The appellant submitted that the difference between the amount claimed and the amount awarded was a factor supporting its application for costs of the hearing in the Land Court.
- [4]The appellant also relied upon its advance made on 15 July 2005 in an amount of $2,200,000, contending that the difference between the award and the amount of the advance is much less substantial than the difference between the amount claimed and the compensation ultimately determined by this Court. It relied upon statements of the learned President in the Land Court, referring to the respondent’s changes in the claim, and its persistence in putting forward three alternative claims, as adding unnecessarily to the costs of the proceedings, making them more complex than otherwise they would have been. It submitted that the difference between the positions of the parties made it inevitable that the appellant would be required to resist the respondent’s claim. It also relied on the general rule that a successful party should expect its costs. However it accepted that an award of costs in its favour in the Land Court should be reduced because the respondent succeeded on its contention that part of the resumed land could be developed for residential purposes; and because courts recognise that, in compensation cases, there is some flexibility in the application of the general rule against the dispossessed land owner.
- [5]The appellant submitted that its success on the appeal was substantial, and accordingly the usual order for costs should be made in its favour.
- [6]For the respondent it was submitted that no order should be made for the costs of the proceedings in the Land Court[2]. In the result, she has an award of compensation which substantially exceeded the amount of the valuation finally put in evidence by the appellant, which she could only recover by litigation in the Land Court. In addition, the appellant relied upon a multiplicity of issues on which it was ultimately unsuccessful.
- [7]The respondent submitted that it would be appropriate that she be ordered to pay 25 per cent of the costs of the appellant of the appeal, on the standard basis. The respondent submitted that this Court has recognised that its power to award costs (found in s 34 of the Land Court Act 2000 (Qld) (LC Act)) is flexible, the submission relying on JT and LJ Barnes v Director-General Department of Transport (Barnes)[3]. The appellant was unsuccessful on many issues in the appeal, a number of which were described as being without merit. The appellant’s valuation had been rejected in the Land Court; and the error in the Land Court’s decision was not induced by the respondent.
Statutory provisions
- [8]The power of the Land Court to make an award for costs of proceedings before it, in a case like the present one, is found in s 27 of the Acquisition of Land Act 1967 (AL Act). It has not been suggested that an award of costs of those proceedings by this Court should be made, other than by reference to this section. Relevantly, the section includes the following:
“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 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.
- (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).”
- [9]The provisions of s 34 of the LC Act should also be noted, as follows
“34 Costs
- (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.
- (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.”
- [10]Section 34 is made applicable “with necessary changes” to this Court, with references in it to the Land Court to be taken as references to this Court[4].
Costs ofLand Court proceedings
- [11]Section 27(2) of the AL Act has the consequence that the only party who can claim costs is the party whose position (as identified in that section) “finally” is closer to the amount of compensation determined by the Land Court than is the other party’s. An application for an order for costs by such a party nevertheless is to be determined in the exercise of the unfettered discretion found in s 27(1) of the AL Act. So much appears from the language and structure of the section. In exercising that discretion, the Court is to act judicially, by reference to relevant considerations, and in accordance with established principle.
- [12]It is apparent that the section was intended to avoid the general application of the rule that costs follow the event, which would almost always result in an award in favour of a dispossessed owner[5]. Moreover, it is well recognised that litigation for compensation for the resumption of land has features which may be of significance in the proper exercise of the discretion.
- [13]
“Upon a claim for compensation for land compulsory acquired, it is not, generally speaking, appropriate to speak of one party has having won; compensation is awarded to one who has 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 results of its exercise may be in certain sorts of cases.”
- [14]
“The Court has a general discretion as to costs, but the discretion must be exercised on principled grounds. The Commonwealth has succeeded on all issues. It would therefore seem difficult to justify ordering it to pay the applicant’s costs. Moreover, if this was ordinary litigation, the Commonwealth might reasonably expect to obtain an order that the applicants pay its costs. But this is not ordinary litigation. The relationship between the parties giving rise to the litigation did not arise out of their mutual desire; it arose because of a unilateral decision of the Commonwealth to acquire the applicants’ land in order to satisfy perceived public need. 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 organised case, without being deterred by the prospect of being ordered to pay the Commonwealth’s costs if their case proves unpersuasive. I distinguish the situation 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.”
- [15]
“The resumption of land is a serious matter. It is not apparent to me why a person who has had his land taken by a government or some other statutory authority should, in addition to losing his land, bear his own costs of seeking what in fact turns out to be just compensation. …”
- [16]While these statements were made in other jurisdictions, where the power to award costs is a product of different legislation, nevertheless they identify matters relevant to the context in which the discretion conferred by s 27 of the AL Act is to be exercised.
- [17]
“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. … Those cases justify some flexibility in the application of the general rule (that costs follow the event) against a dispossessed owner.”
- [18]In the result, the respondent in the appeal has succeeded in her claim for compensation, though not to an extent which would enable an order for costs to be made in her favour. Nor was the appellant successful in having compensation determined in the amount for which it contended. While the amount of an advance may, in some circumstances, be of relevance, in the present case the award substantially exceeded it, and accordingly it is of no present significance. In the Land Court, while the appellant succeeded on some issues, the respondent succeeded on many, maintaining most of that success in this Court.
- [19]In the Land Court, the learned President noted that the respondent’s case and the quantum of the claim had varied considerably over the time that elapsed since the land was resumed. Her Honour considered that the changes in the claim added unnecessarily to the costs of the proceedings. Her Honour also considered that the respondent’s persistence in putting forward three alternative claims added unnecessarily to the costs. That resulted in an award of costs in the Land Court to the respondent, reduced by 20 per cent[11].
- [20]There has been no challenge to the statements of the learned President about the manner in which the respondent’s claim was advanced in the Land Court. Nevertheless, some further observations may be made about them. A major issue in the case was whether residential development might be expected on any part of the resumed land. On that issue the respondent succeeded. The alternative claims, and alternative development proposals, put forward by the respondent represented varying extents to which such development might have been anticipated by the hypothetical purchaser. While the respondent’s success on one development proposal might demonstrate that it was unnecessary to advance any other, it does not inevitably follow that the making of a claim on alternative bases should be a dominant consideration. Of perhaps more significance is the fact that the respondent advanced one alternative development proposal, which she did not directly rely on for the assessment of compensation. But this is no more than one of a number of matters to be weighed in the balance. It might also be noted that the location and features of the land made it inevitable that there would be considerable complexity in determining its value, something which is by no means uncommon when land is compulsorily acquired.
- [21]It summary, the respondent has had substantial success on its claim litigated in the Land Court. It received an award of compensation which is significantly greater than the position for which the appellant contended, and the amount of the advance. The respondent had success on many of the contested issues, which were important to the ultimate determination of compensation. The respondent was unsuccessful on some issues; and it might reasonably have at a much earlier stage reduced the number of alternative proposals on which it relied. Given the view of the learned President, who inevitably had a greater familiarity with the case, it seems appropriate to regard the number of proposals advanced, and the changes in the claim as weighing against the respondent, in the determination of costs. While a number of matters referred to could well justify a reduction in the award of costs to a claimant, the present question is whether the respondent should be awarded all or a part of its costs in the Land Court where, in truth, it was unsuccessful. On balance, the correct conclusion is that no order should be made for costs in the Land Court.
Costs inthe appeal
- [22]A factor of great significance is the appellant’s ultimate success in the appeal. Nevertheless, it succeeded on a single issue, of relatively narrow compass.
- [23]The appellant pursued many other issues in the appeal, on nearly all of which it failed, and some of which were considered to be without merit. In the way in which the appeal proceeded, it may be said that they did not unduly prolong the hearing. Nevertheless, they were relied upon by the appellant, and inevitably required substantial preparation on the part of the respondent to be able to deal with them.
- [24]Balancing the appellant’s success in the appeal with its substantial lack of success in many of the issues, and bearing in mind the way the hearing proceeded, it seems appropriate to order that the respondent pay two-thirds of the appellant’s costs of the appeal to be assessed on the standard basis.
Conclusion
- [25]The orders of the Court in respect of costs are as follows:-
- (a)The order for costs made in the Land Court is set aside, and there is to be no order for costs;
- (b)The respondent is to pay two-thirds of the appellant’s costs of the appeal, to be assessed on the standard basis.
ORDERS:
- The order for costs made in the Land Court is set aside, and there is to be no order for costs.
- The respondent is to pay two-thirds of the appellant’s costs of the appeal, to be assessed on the standard basis.
PETER LYONS J
WL COCHRANE
MEMBER OF THE LAND COURT
WA ISDALE
MEMBER OF THE LAND COURT
Footnotes
[1] Appellant’s outline of argument on costs, filed 22 June 2016.
[2] Outline of submissions in response with respect to costs on behalf of the respondent, Edna Joyce Leacy, filed 23 June 2016.
[3] (1987) 18 QLCR 133, 135.
[4] See s 72 of the LC Act.
[5] See Commissioner for Railways v Buckler [1996] 1 Qd R 18 at 23 per McPherson JA.
[6] (1979) 21 SASR 108, 134-135.
[7] (1993) 45 FCR 32, 51.
[8] (1983) 49 LGRA 215, 221.
[9] (1997) 18 QLCR 133, 136.
[10] At 135-136.
[11] Leacy v Sunshine Coast Regional Council (No 2) [2015] QLC 39 at [26]-[28].