Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QLAC
  3. 2025
  4. Genamson Holdings Pty Ltd v Moreton Bay Regional Council - [2025] QLAC 2

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Genamson Holdings Pty Ltd v Moreton Bay Regional Council[2025] QLAC 2

Genamson Holdings Pty Ltd v Moreton Bay Regional Council[2025] QLAC 2

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Genamson Holdings Pty Ltd v Moreton Bay Regional Council [2025] QLAC 2

PARTIES:

Genamson Holdings Pty Ltd

ACN 053 174 271

(appellant)

v

Moreton Bay Regional Council

(respondent)

FILE NOs:

LAC No 001-25

Land Court No AQL037-23

PROCEEDING:

Appeal from the Land Court of Queensland

ORIGINATING COURT:

Land Court of Queensland

DELIVERED ON:

19 August 2025

DELIVERED AT:

Brisbane

HEARD ON:

9 June 2025

HEARD AT:

Brisbane

THE COURT:

Cooper J

PG Stilgoe OAM, President of the Land Court

ND Loos, Member of the Land Court

ORDER:

The appeal is allowed.  The preliminary question should be answered “no”.

CATCHWORDS:

STATUTES – INTERPRETATION – where the respondent issued two notices of intention to resume land owned by the appellant – where those notices were discontinued and the land was not resumed – where the appellant contended they were entitled to various heads of loss under s 16 of the Acquisition of Land Act 1967 (Qld) (“ALA”) allegedly suffered as a consequence of the respondent’s issuance of the notices of intention to resume – where a preliminary question was submitted to the Land Court of Queensland for determination – where that preliminary question concerned whether compensation claimed under s 16(1A) of the ALA was relevantly limited to costs and expenses of a legal, valuation or other professional nature which was reasonably incurred, reasonable in amount, and was incurred in connection with the consideration or preparation of a claim for compensation – where the Court, at first instance, answered that question affirmatively – where s 16(1C) of the ALA provided that the constructing authority may have costs and expenses taxed by an officer of the Supreme Court and that no person shall be entitled to compensation in excess of the value of his or her estate or interest in the land – where the Court relevantly concluded that compensation under s 16(1A) was limited by s 16(1C) – whether the Court erred in the conclusion that the preliminary question should be answered in the affirmative

Acquisition of Land Act 1967 (Qld) s 16, s 17, s 18, s 19, s 20

Acquisition of Land and Other Legislative Amendment Act 2009 (Qld) s 14(5)

Acts Interpretation Act 1954 (Qld) s 14A

Uniform Civil Procedure Rules 1999 (Qld) r 679, r 702, r 705, r 723, r 724

Deputy Federal Commissioner of Taxes (SA) v Elder’s Trustee & Executor Co Ltd (1936) 57 CLR 610, cited

Genamson Holdings Pty Ltd v Moreton Bay Regional Council (No 2) [2024] QLC 24, cited

Grain Elevators Board (Vict) v Dunmunkle Corporation (1946) 73 CLR 70, cited

Emanuel (No 14) Pty Ltd v Council of the Shire of Caboolture (1994-1995) 15 QLCR 130, considered

Hunter Resources Ltd v Melville (1988) 164 CLR 234, cited

Kettering Pty Ltd v Noosa Shire Council (2004) 78 ALJR 1022, considered

Logan City Shopping Centre Pty Ltd v Retail Shop Leases Tribunal [2007] 1 Qd R 246, cited

Mabo v State of Queensland (No 2) (1992) 175 CLR 1, cited

Marshall v Director-General, Department of Transport (2001) 205 CLR 603, considered

R v A2 (2019) 269 CLR 507, cited

Ridgehaven Retirement Village Pty Ltd v Caloundra City Council [2004] QPELR 439, considered

Roads and Maritime Services (NSW) v United Petroleum Pty Ltd (2019) 99 NSWLR 279, considered

SAS Trustee Corporation v Miles (2018) 265 CLR 137, cited

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, cited

Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531, cited

Weld v Gold Coast City Council (1979) 6 QLCR 8, considered

APPEARANCES:

RJ Anderson KC, with WDJ Macintosh (instructed by HWL Ebsworth) for the appellant

DR Gore KC, with DA Quayle (instructed by Moreton Bay Regional Council) for the respondent

  1. [1]
    THE COURT: In 2016 and 2017, Moreton Bay Regional Council issued two notices of intention to resume land at Morayfield Road, Caboolture South.  The notices were issued to Genamson Holdings Pty Ltd, the owner of the land.  The notices were discontinued.  The land was not resumed. 
  2. [2]
    In those circumstances, Genamson is entitled to claim compensation for “costs and expenses” under s 16(1A) of the Acquisition of Land Act 1967 (Qld) (“ALA”).  The parties disagree about the amount of compensation.  The primary area of dispute is whether s 16(1A) allows Genamson to recover losses which it says were occasioned by the service of both notices of intention to resume.
  3. [3]
    Genamson claims four broad heads of compensation:
    1. additional costs incurred to obtain a development approval over the subject land, which it says would not have been incurred if the notices of intention to resume had not been served;
    2. losses of rent, additional letting up costs, additional incentive costs, and fit-out contributions offered to tenants occupying its development on the subject land to address the impact which the notices of intention to resume had on tenant occupancy within the development;
    3. costs incurred by reason of the sterilisation of the development potential of the subject land caused by the notices of intention to resume; and
    4. reasonable legal, valuation and other professional costs incurred in responding to the notices of intention to resume and in preparing its claims for compensation.
  4. [4]
    The Council asserts that Genamson is only entitled to claim the fourth head of compensation under s 16(1A).
  5. [5]
    As a preliminary question, the Court below was asked:

On the proper construction of section 16(1A) of the Acquisition of Land Act 1967 (Qld) (ALA), is a claim for compensation pursuant to that provision limited to:

a. out of pocket costs and expenses in the nature of legal, valuation and other professional fees:

  1. reasonably incurred;
  1. themselves reasonable; and
  1. which are incurred in connection with the consideration of and/or in the preparation of a claim for compensation following the resumption of land foreshadowed by the notice of intention to resume; and

b. any actual damage done to the land by the construction authority.

  1. [6]
    The court answered this question, “yes”.  Genamson has appealed, contending that the answer should be “no”.
  2. [7]
    Much of the argument on the appeal was directed to Genamson’s contention that, on the proper construction of s 16(1A), a claim for compensation for “costs and expenses” could include financial losses.[1] 
  3. [8]
    Although Genamson’s written submissions alleged five material errors by the Court below, its oral submissions focused on three propositions:[2]
    1. the Court below failed to consider the ordinary meaning of “costs and expenses” (appeal ground 1);
    2. the Court below failed to properly construe the extent of the right to compensation, particularly in light of High Court authority confirming that Courts should take a liberal approach to the construction of compensation statutes (appeal grounds 2 and 7); and
    3. Section 16(1C) ought not be construed to limit the amount recoverable under s 16(1A) (appeal ground 3).
  4. [9]
    We propose to consider the second proposition first.

Did the Court below fail to properly construe the extent of the right to compensation?

  1. [10]
    Both parties acknowledge that the principles which apply to the task of statutory construction are well settled. Perhaps the best articulation of those principles is provided by Gageler J (as the Chief Justice then was) in SAS Trustee Corporation v Miles:

“Statutory construction is the process by which meaning is attributed to statutory text.  In a doubtful case, it involves constructional choice.  The statutory text must be considered from the outset in context and attribution of meaning to the text in context must be guided so far as possible by statutory purpose on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means.” [3]

  1. [11]
    His Honour reiterated those principles in SZTAL v Minister for Immigration and Border Protection,[4] and R v A2.[5]  Section 14A(1) of the Acts Interpretation Act 1954 (Qld) echoes that approach: the interpretation that will best achieve the purpose of the ALA is to be preferred over any other interpretation.
  2. [12]
    The ALA does not state its purposes or objectives.  Genamson submits that the purpose of the ALA is to compensate a person who is affected by the taking of land. The Council submits that it is to resume land, not to protect the dispossessed landowner.  In our view, the purpose of the ALA is twofold: to provide a regime for the taking of land by constructing authorities, while providing compensation for a party whose land is taken.
  3. [13]
    The ALA contemplates three resumption scenarios, which, listed from most impactful on the landowner to least, are:
  1. a complete compulsory acquisition (ss 18–20) – title in the land is transferred to the constructing authority.  The claimant is entitled to be compensated for the value of the land taken plus “costs attributable to disturbance”, as defined in s 20(5).  These disturbance costs include an amount reasonably attributed to the “loss of profits” resulting from interruption to the claimant’s business that is a direct and natural consequence of the taking of the land (s 20(5)(f)) and “other economic losses and costs” reasonably incurred by the claimant that are a direct and natural consequence of the taking of the land (s 20(5)(g));
  1. an acquisition which is revoked before the amount of compensation payable in respect of the taking of the land has been determined (s 17) – title in the land transfers to the constructing authority but is later revested in the claimant.  The claimant is entitled to compensation for “the loss or damage and (if any) costs or expenses” incurred by the claimant in consequence of the taking of the land prior to its revesting (s 17(4));
  1. discontinuance of resumption before the publication of the gazette resumption notice (s 16) – the resumption is discontinued before title to the land is transferred to the constructing authority.  The claimant is entitled to “costs and expenses” and any actual damage done to the land by the constructing authority (s 16(1A)). 
  1. [14]
    It is logical that a person whose land is permanently taken is given the greatest right to compensation.  A person whose land is taken and then given back is given a lesser right to compensation, but more than simply “costs or expenses”.  A person who simply lives under a threat of land being taken – but which is not ultimately taken – is limited, in terms of financial costs, to a claim for “costs and expenses”.
  2. [15]
    This last point is made clear by the text of s 16(1A) which provides that:

… no person shall have any claim for compensation or other right or remedy whatsoever against the constructing authority for any loss or damage alleged to have been occasioned (directly or indirectly) by the service of the notice of intention to resume or the discontinuance of the resumption except a claim for compensation for costs and expenses incurred by the person who was served with the notice and any actual damage done to the land concerned by the constructing authority. 

  1. [16]
    Section 16 stands apart from the compensation provisions which address the first two resumption scenarios for two reasons. 
  2. [17]
    First, it addresses a situation where title in the land never changes hands.  In that respect, Genamson contends that the Court below erred in concluding that the broader scope of compensation provided for in s 17(4) means that s 16(1A) should be construed more narrowly.[6]  It submits that the entitlement to claim compensation for “loss or damage” under s 17(4) is explained by the land having been taken, albeit temporarily, whereas under the scenario addressed by s 16(1A) the land is not taken.  That both sections permit recovery of the same head of compensation – “costs or expenses” under s 17(4) and “costs and expenses” under s 16(1A) – is explained on the basis that a claimant might incur the same type of “costs and expenses” under either scenario.
  3. [18]
    We cannot see how the matters upon which Genamson relies impugn the conclusion of the Court below.  As Genamson identifies, “the loss” referred to in s 17(4) is a loss incurred by the claimant because of the taking of the land.  That loss is not the value of the land (which is ultimately revested in the claimant) but some other form of financial loss.  The use of the word “loss” to describe such compensable financial loss, and to separately confer an express entitlement to claim compensation for “costs or expenses”, being a similar compound phrase to that used in s 16(1A), suggests the legislature has drawn a distinction between financial loss in the broader sense and “costs and expenses”.  Only the latter is compensable under s 16(1A).
  4. [19]
    Secondly, s 16(1A) starts with a blanket prohibition (stated in the words extracted in paragraph [15] up to and including the word “resumption”) and then provides an exception to that blanket prohibition (stated in the words extracted in paragraph [15] commencing with the word “except”).
  5. [20]
    As to this, Genamson submits that the Court below erroneously applied the reasoning of the High Court in Kettering Pty Ltd v Noosa Shire Council[7] by finding that the correct approach to the construction of s 16(1A) was “to identify the extent to which the ‘very expansive denial’ [to compensation] is reduced by the narrow exception of costs and expenses”.[8]  It submits that Kettering is authority for the broad principle that a right ought not be construed by reference to the restrictions on that right; that the correct approach is to commence by determining what the right of compensation is, not by determining how the right to compensation is diminished, whether by way of exception or other restriction.
  6. [21]
    The High Court in Kettering considered a right to compensation under very different legislation.  The broad principle identified by Genamson provides little assistance in this case, where s 16(1A) commences with a denial of the entitlement to claim compensation.  Kettering is not authority for the converse principle identified by Genamson: that a prohibition on compensation should be construed by a broad reading of a right that forms an exception to that prohibition.  That approach would ignore the structure of the provision. 
  7. [22]
    Genamson further argues that, based on the decision in Marshall v Director-General, Department of Transport,[9]  the fact the land was not taken is of no relevance.  It relied on the comments of McHugh J:

“… In the case of legislation dealing with the compensation to be awarded in respect of the compulsory acquisition of land, however, a different presumption operates.  The legislation is intended to ensure that the person whose land has been taken is justly compensated.  Such legislation should be construed with the presumption that the legislature intended the claimant to be liberally compensated.  That being so, it would be wrong to construe a provision such as s 20(1)(b) [of the ALA] as conferring compensation only for damage that results from an act that is “the very thing, or an integral part of or step in the very thing, which the provisions of the Act” gave the constructing authority power to carry out.  Whenever the constructing authority takes steps to achieve any purpose or carry out any function that is incidental to the purpose for which part of the land was acquired, it should be regarded as the exercise of a statutory power within the meaning of s 20(1)(b).” [10]

  1. [23]
    To similar effect, Genamson referred to the following statement of Gaudron J:

“Although the rule that legislative provisions are to be construed according to their natural and ordinary meaning is a rule of general application, it is particularly important that it be given its full effect when, to do otherwise, would limit or impair individual rights, particularly property rights.  The right to compensation for injurious affection following upon the resumption of land is an important right of that kind and statutory provisions conferring such a right should be construed with all the generality that their words permit.  Certainly, such provisions should not be construed on the basis that the right to compensation is subject to limitations or qualifications which are not found in the terms of the statute.” [11]

  1. [24]
    As those passages confirm, this liberal interpretation of compensation legislation applies in circumstances where the land was taken.  There is no basis in Marshall, however, to suggest that the same approach must be adopted in every circumstance where a party interacts with a constructing authority, regardless of whether the land was actually taken.  That is, there is nothing which tells against a narrowing of the right to compensation as the impact of the resumption decreases in the manner described at [13] to [18] above.
  2. [25]
    It should also be remembered that, as was the case in Kettering, the provision construed in Marshall differed from s 16(1A) in material ways.  The provisions considered in those authorities began by conferring a right to compensation and then imposing a limitation on the scope of that right.  As we have already noted, s 16(1A) does the opposite: it starts with the prohibition on claims for compensation for “any loss or damage” and then provides a limited exception.  Providing a limited right to recover costs and expenses cannot reinstate an entitlement to claim compensation that has been expressly excluded.
  3. [26]
    Genamson submits that service of a notice of intention to resume amounts to an interference with property rights because, while extant, it operates as an effective bar to the ability of a landowner to transfer the land or to otherwise grant an interest in it.  It says that those are rights that the landowner would otherwise have as a matter of practicality.  It relies on the observation of the Planning and Environment Court in Ridgehaven Retirement Village Pty Ltd v Caloundra City Council that the use of land earmarked for resumption is “sterilised”.[12]
  4. [27]
    Ridgehaven involved an application for a material change of use as a retirement village.  The land was potentially affected by a transport corridor to accommodate a rail link between the North Coast rail line and Maroochydore.  The Caloundra City Council approved the application subject to a condition that the development be redesigned to incorporate the future transport corridor.
  5. [28]
    The Court’s acknowledgement that the transport corridor land was sterilised included an acknowledgement that when the land was resumed Ridgehaven would be entitled to compensation at market value.  Once again, the case, and the principle extracted from it, can be distinguished both on its facts and the legislative regime from which the right to compensation derives.
  6. [29]
    Genamson also urges us to interpret compensation legislation liberally in accordance with the general rule of statutory interpretation that clear language must be used in order to impute a legislative intention that valuable property rights are to be appropriated or extinguished without fair compensation.[13]  Again, that principle does not assist Genamson in this case where no property rights were expropriated or extinguished.  In any case, the words used in s 16(1A) are clear.  Those words deny “any claim for compensation … whatsoever … for any loss or damage”, subject only to the exceptions of a claim for costs and expenses or actual damage done to the land by the constructing authority.  The application of the general rule does not permit this Court to ignore such clear words simply to assuage a sense of unfairness.
  7. [30]
    For these reasons, the Court below did not err in identifying the correct approach to the construction of s 16(1A).

Did the Court below fail to consider the natural and ordinary meaning of “costs and expenses”?

  1. [31]
    Genamson contends that the Court below failed to consider the natural and ordinary meaning of “costs”, which includes “a sacrifice, loss or penalty”.  Of course, that is only one of the natural meanings of the word.  As the Court below identified, there are two natural meanings.  The other is “the price paid to acquire, produce, accomplish or maintain anything”.[14]  Having regard to what we have said above in addressing Genamson’s second proposition, and taking the ALA as a whole, we consider that to be the more logical natural meaning to be applied when construing s 16(1A).
  2. [32]
    Genamson submits that s 16(1A) gives it a right to compensation that is, arguably, wider than the right to costs attributable to disturbance under s 20(5).  That cannot be correct.  Such an interpretation ignores the wide-ranging prohibition at the start of s 16(1A).  As the Council points out, such an interpretation gives no weight to the words “any claim for compensation or other right or remedy whatsoever … for any loss or damage (directly or indirectly)” (emphasis added).
  3. [33]
    Both parties made submissions about the effect of Roads and Maritime Services (NSW) v United Petroleum Pty Ltd,[15] which is noteworthy because it is a decision of the New South Wales Court of Appeal constituted by five judges.  Genamson relies on statements by Sackville AJA (with whom Payne JA agreed) and Preston CJ of the New South Wales Land and Environment Court, to the effect that the word “costs” is capable of bearing a wide meaning and can include losses.[16]  Given the differences between s 16(1A) and the statutory provision considered in United Petroleum, the debate about that authority was ultimately not determinative of the question here.  The best that can be taken from the case is that the interpretation of a provision in legislation depends upon context.  For the reasons already set out above, we consider that the context of the ALA supports a construction whereby the words “costs” and “loss” are used to refer to different concepts.
  4. [34]
    Genamson can take no comfort from earlier decisions of this Court that equate “costs and expenses” with the common law concept of disturbance costs.[17]  Those cases were concerned with different facts.  Costs of the type Genamson claims under its fourth head of compensation were found to be compensable, whereas the costs of contesting a notice to resume were found not to be.[18]  The important distinction is that none of those cases considered whether losses of the type claimed by Genamson under its first three heads of compensation could be recovered on a claim under s 16(1A).
  5. [35]
    In any event, we consider “costs and expenses” in the context of s 16(1A) and common law disturbance costs to be separate and distinct concepts.  Consequently, we do not accept Genamson’s contention that the Court below erred in concluding that the common law test for disturbance costs does not apply to a claim for compensation under s 16(1A).[19]  Section 20(5) now sets out what can be claimed under the head of disturbance costs in some detail.  That provision was inserted into the ALA when s 20 was amended in 2009.[20]  The effect of that amendment was to define the phrase “costs attributable to disturbance” in relation to the taking of land, and thereby exhaustively prescribe what comprises such costs and displace the common law concept of disturbance costs.
  6. [36]
    In that context, Genamson’s argument about the continued application of the common law test for disturbance costs on a claim under s 16(1A) proceeds as follows:
    1. the authorities which have stated that the costs or expenses provided for in s 16(1A) are disturbance items to which the common law test applies, were decided prior to the 2009 amendments;[21]
    2. this explains the statements that the same common law test for disturbance would apply to claims under both s 16 and 20 of the ALA;
    3. the enactment of s 20(5) has prescribed limits as to what constitutes costs that are attributable to disturbance for the purposes of a claim under s 20 (albeit in a manner which Genamson contends is consistent with the common law test);
    4. as no such definition has been enacted for the purposes of s 16(1A), the common law test for disturbance has not been displaced by any amendment or other enactment and ought to continue to apply to claims made under that section.
  7. [37]
    We cannot accept that argument.  It fails to take account of a second important feature of the 2009 amendments.  Prior to those amendments, the ALA (like other compulsory acquisition statutes in Australia and the United Kingdom) did not make specific provision for disturbance costs as a separate head of compensation.  Nevertheless, these costs were accepted as compensable by the Courts.  By the 2009 amendments, s 20(1)(b) was inserted to expressly provide that, in assessing a claim for compensation under a completed compulsory acquisition scenario, regard should be had to the owner’s costs attributable to disturbance.  The insertion of s 20(1)(b) thus clarified and confirmed the entitlement to claim disturbance costs under s 20.  There was no similar equivalent clarification or confirmation regarding a claim under s 16(1A). 
  8. [38]
    In some circumstances, a court is entitled to examine a later statute to interpret an earlier version of it.[22]  Where the interpretation of a statute is ambiguous, or readily capable of more than one interpretation, light may be thrown on the correct construction by the aims and provisions of a subsequent statute.[23]  There are limits to this approach.  It is not permissible to construe an unambiguous phrase in an earlier statute by an erroneous assumption of its effect contained in a later statute which did not purport to amend or alter the earlier statute.[24]
  9. [39]
    We do not consider that such a limitation applies here.  The legislature amended s 20 to confirm, by the insertion of s 20(1)(b), the entitlement to claim costs attributable to disturbance and at the same time to prescribe, by the insertion of s 20(5), what those costs were.  That the legislature did not amend s 16(1A) to confirm the existence of an entitlement to claim costs attributable to disturbance or to prescribe what those costs were is a strong indication that, as we have already observed, the legislature has treated “costs and expenses” in the context of s 16(1A) and disturbance costs as separate and distinct concepts.
  10. [40]
    Finally, we note that the phrase “costs and expenses” occurs in only two sections of the Act, the other being s 14(3):

The costs and expenses in connection with the recording or registration of documents rendered necessary by the taking of the land shall be borne by the constructing authority.

  1. [41]
    That further demonstrates that the legislature’s use of “costs and expenses” in both provisions was a deliberate choice and is clearly different from the concept of loss or damage.
  2. [42]
    For these reasons, we do not accept Genamson’s argument that the Court below erred in not having regard to the ordinary meaning of “costs and expenses”.

The effect of s 16(1C)

  1. [43]
    The question remains, however, whether the “costs and expenses” compensable under s 16(1A) should be limited to amounts recoverable under the costs assessment regime provided for in the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”).
  2. [44]
    The Council contends this is the proper construction because of s 16(1C) of the ALA which states:

(1C)However, the constructing authority may have such costs and expenses taxed by the proper officer of the Supreme Court under the rules of that court and that no person shall be entitled to compensation in excess of the value of his or her estate or interest in the land.

  1. [45]
    Genamson contends that this cannot be the intention of the legislature.  It points out that s 20(5)(a) and (b)(iii) specifically refer to “legal costs” so it would have been an easy drafting exercise to repeat that phrase in s 16(1A).  This reasoning is not persuasive.  If correct, it would apply equally to Genamson’s proposition that “costs and expenses” should be construed to include financial costs (based on the statements in United Petroleum discussed earlier); s 20(5)(b)(ii) and (e) specifically refer to financial costs.  If the legislature intended “costs and expenses” to mean financial costs there was also a simple way to achieve that.
  2. [46]
    Genamson further submits that the Council’s construction of s 16(1A) ignores the legislature’s failure to update the ALA to harmonise it with the UCPR.
  3. [47]
    It is true that the assessment of costs regime in the UCPR sits somewhat uneasily with the right to recover costs and expenses under s 16(1A).  As Genamson points out, the UCPR ordinarily limits a party to recover standard costs which, typically, do not fully compensate a person involved in litigation.  The UCPR also refers to scales of costs and s 16(1A) does not articulate which scale is appropriate.
  4. [48]
    The latter point can be dealt with easily.  The Land Court routinely orders costs by nominating the scale that should apply.  Often, the scale is linked to the value of the subject matter.  There is no reason why a costs assessor could not undertake the same exercise in assessing an entitlement under s 16(1A).
  5. [49]
    Although standard costs usually apply, there is the ability to seek the assessment of costs on a fixed or indemnity basis.  Even in cases where costs are to be assessed on the standard basis, under r 702(2) a costs assessor must allow all costs necessary or proper for the attainment of justice.
  6. [50]
    Genamson also submits that there is an important difference in the language used in s 16(1C) – which refers to having “costs and expenses” taxed – and in the UCPR, which on Genamson’s argument provides for the assessment of “costs” but not “expenses”.  On that basis, Genamson argues that if (as was found by the Court below)[25] “costs” and “expenses” are linked but have different meanings then, in circumstances where only “costs” can be assessed under the UCPR, there is no work for the word “expenses” to do under s 16(1C). 
  7. [51]
    We do not accept this argument.  As the Council submits, the inclusion of the word “expenses” in s 16(1C) is consistent with the language used to deal with the taxation of costs in the Supreme Court Rules which preceded the UCPR and were in force at the time the ALA was enacted.  Those earlier rules provided for the taxation of both costs and expenses (with expenses including various professional fees).  Since the introduction of the UCPR, the rules dealing with assessment address costs and disbursements.  In r 679, the words “assessed costs” are defined for the purposes of chapter 17A of the UCPR to mean “costs and disbursements” assessed under that chapter.  By r 705(2)(b), a costs statement served by a party entitled to be paid costs must, if practicable, have attached to it copies of all invoices for the disbursements claimed in that costs statement.[26]  From this, it seems tolerably clear to us that an “expense” referred to in s 16(1C) could be assessed as a disbursement under chapter 17A of the UCPR. 
  8. [52]
    Notwithstanding that conclusion, we consider the Court below erred in accepting the Council’s submission that, having regard to the operation of s 16(1C), the “costs and expenses” which can be claimed under s 16(1A) are limited to amounts recoverable upon an assessment under chapter 17A of the UCPR. 
  9. [53]
    In reaching that conclusion, the Court below stated that the words of s 16(1C) operate harmoniously with s 16(1A) when they are understood as permitting the constructing authority to have the whole of a claim for costs and expenses under s 16(1A) taxed (now assessed) and, consequently, that those “costs and expenses” are to be understood as being limited to out of pocket costs and expenses in the nature of legal, valuation and other professional fees.[27] 
  10. [54]
    In support of the conclusion reached below, the Council submits the legislature intended that the process of taxation (now assessment) provided for in s 16(1C) would finally determine the total compensation payable under s 16(1A).  It relies on two matters in support of that argument.  First, the process of taxation provided for in s 16(1C) should be understood as providing an alternative (available only to the constructing authority) to either of the processes referred to in s 16(1B); namely that the constructing authority and the claimant may agree upon the amount of the compensation to be paid under s 16(1A) or, upon reference by either party, the amount of compensation may be determined by the Land Court.  Second, that the proviso at the end of s 16(1C), that “no person shall be entitled to compensation in excess of the value of his or her estate or interest in the land”, can only be meaningful if the taxation process finally determines the total compensation payable under s 16(1A).
  11. [55]
    Plainly, s 16(1C) confers a right on the constructing authority which the claimant does not have.  If the parties do not agree the amount of compensation payable under s 16(1A), then either of them may refer the dispute for determination by the Land Court.  It is important to note, however, that the dispute might not be limited to the amount of “costs and expenses” incurred by the claimant after being served with the notice of intention to resume.  It might also include a dispute about the amount of compensation payable in relation to actual damage done to the subject land by the constructing authority.  In such a case, even if the constructing authority elects to engage the taxation process under s 16(1C), taxation of the costs and expenses would not finally determine the total amount of compensation payable pursuant to s 16(1A).  The amount of compensation payable for the damage done to the subject land would have to be determined by the Land Court.  That outcome is not consistent with a legislative intention that the taxation process in s 16(1C) should finally determine the total compensation payable under s 16(1A).
  12. [56]
    We also cannot accept that the proviso at the end of s 16(1C) necessarily evidences such an intention.  There is no reason to think that, in circumstances where a claim for compensation under s 16(1A) involves damage done to the subject land in addition to costs and expenses, the proviso could not operate.  If, in that event, the constructing authority has the costs and expenses taxed, with the Land Court left to determine the amount of compensation payable for the damage done to the subject land, then the proviso would operate on the aggregate amount of compensation assessed by those separate determinations.  Again, that the legislation allows for separate determinations of different aspects of the compensation claim is not consistent with an intention that the taxation process should finally determine the total compensation.
  13. [57]
    In the absence of the legislative intention relied on by the Council, we consider that s 16(1A) should be construed as allowing a claim for “costs and expenses” which includes costs or expenses that are not amenable to assessment under chapter 17A of the UCPR.  This does not mean we accept that “costs and expenses” includes all forms of financial loss.  The reasons set out above in addressing Genamson’s first two propositions explain why.  But the rejection of those propositions does not mean that the limitation proposed by the Council is the proper construction.  As the Court below acknowledged,[28] the owner’s right to be compensated for the effect of the service of the notice of intention to resume or the discontinuance of the resumption should be protected to the fullest extent allowed under the ALA.  Put another way, the exception to the prohibition on claims for compensation should not be construed more narrowly than is necessary.  We agree that is the correct approach.  Unlike the Court below, however, we consider that the construction of s 16(1A) which the Council advances, reflected in the wording of the preliminary question, would unduly restrict the owner’s right to claim compensation. 
  14. [58]
    For the reasons set out above, we consider that s 16(1A) evinces a legislative intention that the right to claim compensation for costs and expenses could include something more than legal costs and disbursements, but still less than the rights of a claimant under a completed acquisition scenario (ss 18–20) or a claimant under a revoked acquisition scenario (s 17).  In this regard, we agree with the observation of the Court below that the scope of compensation for disturbance costs under s 20(5) should not be narrower than the right to compensation under s 16(1A).[29]  However, that assessment requires a comparison of the right to compensation under s 16(1A) with the full scope of compensation for disturbance costs under s 20(5), not simply one category of such costs.
  15. [59]
    In that regard, we note that the preliminary question, as framed for determination by the Court below, interposed language which does not appear in s 16(1A).  Neither party submits that we should read words into the legislation.  There is authority cautioning against inserting words into legislation.[30]  Neither party submits that the circumstances exist here to permit that to occur.
  16. [60]
    As the Court below identified,[31] the language included in the preliminary question broadly reflects that which appears in s 20(5)(a) – “legal costs and valuation or other professional fees reasonably incurred by the claimant in relation to the preparation and filing of the claimant’s claim for compensation”.  Those words have been used in s 20(5)(a) to describe one of the categories of disturbance costs which can be claimed under a completed acquisition scenario.  We have explained, at [34] to [39] above, our reasons for concluding that “costs and expenses” compensable under s 16(1A) and disturbance costs should be treated as separate and distinct concepts.  Just as we do not accept Genamson’s argument that “costs and expenses” under s 16(1A) should be interpreted broadly because they are to be treated as disturbance costs, we also do not accept that it is appropriate to read those words down by reference to a single category of disturbance cost.

Conclusion

  1. [61]
    The answer to the preliminary question should be “no”.  That is because the phrase “costs and expenses” in s 16(1A) should not be construed as limiting a claim for compensation to the recovery of legal costs and disbursements.  It is, however, clear that the words give Genamson no right to claim loss or damage.  What Genamson can claim as costs and expenses will be a question for the hearing member.
  2. [62]
    The appeal should be allowed.  The answer to the question posed is “no”.
  3. [63]
    The matter is remitted to the Land Court for further determination according to law.

Footnotes

[1]  T1-7:11-21; T1-22:17-44.

[2]  In addition to these three primary propositions, Genamson’s written submissions addressed two further arguments: the Court below erred (i) in concluding that the common law test for disturbance costs does not apply to a claim for compensation under s 16(1A) of the ALA (appeal grounds 4 and 6); and (ii), in concluding that the broader scope of compensation provided for in s 17(4) of the ALA means that s 16(1A) should be construed more narrowly (appeal ground 5).  Given the overlap between these further arguments and the three primary propositions, we have addressed the further arguments in our consideration of those primary propositions.

[3]  (2018) 265 CLR 137, 157 [41] (citations omitted).

[4]  (2017) 262 CLR 362, 374–377 [35]–[43].

[5]  (2019) 269 CLR 507, 520–522 [32]–[37].

[6]  Appeal ground 5.

[7]  (2004) 78 ALJR 1022.

[8] Genamson Holdings Pty Ltd v Moreton Bay Regional Council (No 2) [2024] QLC 24 [35].

[9]  (2001) 205 CLR 603.

[10]  (2001) 205 CLR 603, 627 [48] (citations omitted).

[11]  (2001) 205 CLR 603, 623 [38].

[12]  [2004] QPELR 439, 446 [44].

[13]  See, eg, Mabo v State of Queensland (No 2) (1992) 175 CLR 1, 111.

[14] Genamson Holdings Pty Ltd v Moreton Bay Regional Council (No 2) [2024] QLC 24 [19].

[15]  (2019) 99 NSWLR 279.

[16]  (2019) 99 NSWLR 279, 301 [94], 310 [135].

[17]  See, eg, Weld v Gold Coast City Council (1979) 6 QLCR 8; Emanuel (No 14) Pty Ltd v Council of the Shire of Caboolture (1994-1995) 15 QLCR 130.

[18]  See, eg, Emanuel (No 14) Pty Ltd v Council of the Shire of Caboolture (1994-1995) 15 QLCR 130, 139.

[19]  Grounds 4 and 6.

[20]  See Acquisition of Land and Other Legislation Amendment Act 2009 (Qld) s 14(5).

[21]  See, eg, Emanuel (No 14) Pty Ltd v Council of the Shire of Caboolture (1994-1995) 15 QLCR 130, 139–140.

[22] Grain Elevators Board (Vict) v Dunmunkle Corporation (1946) 73 CLR 70, 86; Logan City Shopping Centre Pty Ltd v Retail Shop Leases Tribunal [2007] 1 Qd R 246, 251 [20].

[23] Deputy Federal Commissioner of Taxes (SA) v Elder’s Trustee & Executor Co Ltd (1936) 57 CLR 610, 625–626.

[24] Hunter Resources Ltd v Melville (1988) 164 CLR 234, 255.

[25] Genamson Holdings Pty Ltd v Moreton Bay Regional Council (No 2) [2024] QLC 24 [21].

[26]  See also r 723(1), which provides that if a party’s costs statement includes an account that has not been paid the party may claim the amount as a disbursement, and r 724(3), which provides that if a costs statement includes a charge for work done by a lawyer practising outside Queensland, the charge may be shown as a disbursement.

[27] Genamson Holdings Pty Ltd v Moreton Bay Regional Council (No 2) [2024] QLC 24 [46].

[28] Genamson Holdings Pty Ltd v Moreton Bay Regional Council (No 2) [2024] QLC 24 [85].

[29] Genamson Holdings Pty Ltd v Moreton Bay Regional Council (No 2) [2024] QLC 24 [81].

[30] Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531, 547–549 [35]–[40].

[31] Genamson Holdings Pty Ltd v Moreton Bay Regional Council (No 2) [2024] QLC 24 [81].

Close

Editorial Notes

  • Published Case Name:

    Genamson Holdings Pty Ltd v Moreton Bay Regional Council

  • Shortened Case Name:

    Genamson Holdings Pty Ltd v Moreton Bay Regional Council

  • MNC:

    [2025] QLAC 2

  • Court:

    QLAC

  • Judge(s):

    Cooper J

  • Date:

    19 Aug 2025

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
Emanuel (No 14) Pty Ltd v Council of the Shire of Caboolture (1994-1995) 15 QLCR 130
4 citations
Jump To
Cite 1 - (1994-1995) 15 QLCR 130
Cite 2 - (1994-1995) 15 QLCR 130
Cite 3 - (1994-1995) 15 QLCR 130
Cite 4 - (1994-1995) 15 QLCR 130
Genamson Holdings Pty Ltd v Moreton Bay Regional Council (No 2) [2024] QLC 24
8 citations
Jump To
Cite 1 - [2024] QLC 24
Cite 2 - [2024] QLC 24
Cite 3 - [2024] QLC 24
Cite 4 - [2024] QLC 24
Cite 5 - [2024] QLC 24
Cite 6 - [2024] QLC 24
Cite 7 - [2024] QLC 24
Cite 8 - [2024] QLC 24
Grain Elevators Board (Victoria) v Dunmunkle Corporation (1946) 73 CLR 70
2 citations
Jump To
Cite 1 - (1946) 73 CLR 70
Cite 2 - (1946) 73 CLR 70
Hunter Resources Ltd v Melville (1988) 164 CLR 234
2 citations
Jump To
Cite 1 - (1988) 164 CLR 234
Cite 2 - (1988) 164 CLR 234
Kettering Pty Ltd v Noosa Shire Council (2004) 78 ALJR 1022
2 citations
Jump To
Cite 1 - (2004) 78 ALJR 1022
Cite 2 - (2004) 78 ALJR 1022
Logan City Shopping Centre Pty Ltd v Retail Shop Leases Tribunal[2007] 1 Qd R 246; [2006] QSC 172
2 citations
Jump To
Cite 1 - [2007] 1 Qd R 246
Cite 2 - [2007] 1 Qd R 246
Mabo v Queensland [No. 2] (1992) 175 CLR 1
2 citations
Jump To
Cite 1 - (1992) 175 CLR 1
Cite 2 - (1992) 175 CLR 1
Marshall v Director General Department of Transport (2001) 205 CLR 603
4 citations
Jump To
Cite 1 - (2001) 205 CLR 603
Cite 2 - (2001) 205 CLR 603
Cite 3 - (2001) 205 CLR 603
Cite 4 - (2001) 205 CLR 603
R v A2 (2019) 269 CLR 507
2 citations
Jump To
Cite 1 - (2019) 269 CLR 507
Cite 2 - (2019) 269 CLR 507
Ridgehaven Retirement Village Pty Ltd v Caloundra City Council [2004] QPELR 439
2 citations
Jump To
Cite 1 - [2004] QPELR 439
Cite 2 - [2004] QPELR 439
Roads and Maritime Services v United Petroleum Pty Ltd (2019) 99 NSWLR 279
3 citations
Jump To
Cite 1 - (2019) 99 NSWLR 279
Cite 2 - (2019) 99 NSWLR 279
Cite 3 - (2019) 99 NSWLR 279
SAS Trustee Corporation v Miles (2018) 265 CLR 137
2 citations
Jump To
Cite 1 - (2018) 265 CLR 137
Cite 2 - (2018) 265 CLR 137
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
2 citations
Jump To
Cite 1 - (2017) 262 CLR 362
Cite 2 - (2017) 262 CLR 362
Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531
2 citations
Jump To
Cite 1 - (2014) 253 CLR 531
Cite 2 - (2014) 253 CLR 531
The Deputy Federal Commissioner of Taxes (South Australia) v Elder's Trustee and Executor Company Ltd (1936) 57 CLR 610
2 citations
Jump To
Cite 1 - (1936) 57 CLR 610
Cite 2 - (1936) 57 CLR 610
Weld v Gold Coast City Council (1979) 6 QLCR 8
2 citations
Jump To
Cite 1 - (1979) 6 QLCR 8
Cite 2 - (1979) 6 QLCR 8

Cases Citing

Case NameFull CitationFrequency
Genamson Holdings Pty Ltd v Moreton Bay Regional Council (No 2) [2025] QLAC 41 citation
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.