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Leacy v Sunshine Coast Regional Council (No. 2)[2015] QLC 39

Leacy v Sunshine Coast Regional Council (No. 2)[2015] QLC 39

LAND COURT OF QUEENSLAND

CITATION:

Leacy v Sunshine Coast Regional Council (No. 2) [2015] QLC 39

PARTIES:

Edna Joyce Leacy as personal representative of the estate of Kenneth George Leacy and Edna Joyce Leacy

(applicants)

v

Sunshine Coast Regional Council

(respondent)

FILE NO:

AQL033-08

DIVISION:

General Division

PROCEEDING:

Application for costs and interest

DELIVERED ON:

6 November 2015

DELIVERED AT:

Brisbane

HEARD AT:

Written submissions

PRESIDENT:

CAC MacDonald

ORDERS:

  1. The respondent is ordered to pay to the claimants 80% of the claimants’ costs of and incidental to the hearing of the claim for compensation, such costs to be agreed between the parties.  If not agreed the costs are to be assessed on the standard basis. 
  2. The respondent is ordered to pay interest to the claimants at the rate of 5.25% per annum on the amount of Four Million, Five Hundred and Forty-Six Thousand, Four Hundred and Eighty-Three Dollars ($4,546,483) for the period commencing 18 February 2005 up to and including 14 July 2005.
  3. The respondent is ordered to pay interest to the claimants at the rate of 5.00% per annum on the amount of Two Million, Three Hundred and Forty-Six Thousand, Four Hundred and Eighty-Three Dollars ($2,346,483) for the period commencing 15 July 2005 up to and including 31 December 2014.
  4. The respondent is ordered to pay interest to the claimants at the average of the 2015 monthly rates shown on the interest rates table on the Land Court Interest Rates page of the Queensland Courts website, on the amount of Two Million, Three Hundred and Forty-Six Thousand, Four Hundred and Eighty-Three Dollars ($2,346,483) for the period commencing 1 January 2015 up to and including the day immediately preceding the day on which the respondent pays that amount to the claimants. 
  5. The respondent is ordered to pay interest to the claimants at the interest rate to be calculated by reference to the interest rates table in the Land Court Interest Rates page of the Queensland Courts Website, for each disturbance item allowed for the periods commencing on the dates on which the claimants paid each of these disturbance amounts, up to and including the day immediately preceding the date on which the respondent pays those amounts to the claimants. 

CATCHWORDS:

Costs – principles to be applied – s 27 Acquisition of Land Act 1967

Costs – factors governing the exercise of discretion – where applicant successful in claim – whether claimants’ conduct of case increased costs of litigation – partial award of costs

Interest – principles to be applied on award of interest on compensation monies – s 28 Acquisition of Land Act – interest awarded. 

Acquisition of Land Act 1967

Alex Gow Pty Ltd v Brisbane City Council (2001) 22 QLCR 292

Barns v Director-General, Department of Transport (1997-98) 18 QLCR 133

Cox v Water Resources Commission (1996-97) 16 QLCR 266

Leacy v Sunshine Coast Regional Council [2015] QLC 8

Small v Brisbane City Council (1968) 35 CLLR 239

Wyatt v Albert Shire Council (1987) 1 Qd R 486

Yalgan Investments Pty Ltd v Albert Shire Council (1997) 17 QLCR 401  

COUNSEL:

Mr GW Diehm QC with Mr S Ure of Counsel for the applicants

Mr DR Gore QC with Mr M Gynther of Counsel for the respondent

SOLICITORS:

Butler McDermott for the applicants

Garland Waddington for the respondent

Background

  1. [1]
    On 15 April 2015 I delivered judgment in this matter in which the claimants sought compensation for the compulsory acquisition of land by the respondent, under the Acquisition of Land Act 1967[1].  At the time there were some minor discrepancies as to the areas of land adopted by each party in their calculations of compensation.  I invited further submissions as to the areas of land to be adopted, costs and interest. 
  2. [2]
    After hearing from the parties, on 24 June 2015 I determined compensation for the resumption of Lot 606 on CG4306 on Title Reference 16099079 in the Parish of Bribie as follows:

  6.252 ha of developable land at $425,000 per ha  $2,657,100

  79.878 ha of rural flood prone land at 23,500 per ha  $1,877,133

  Improvements            $12,250

  Disturbance            $16,071

Total        $4,562,554

  1. [3]
    The claimants and the respondent have provided written submissions and supporting affidavits with respect to the award of costs and interest and I now deal with those two issues on the papers. 

Costs

  1. [4]
    The claimants seek an order that the respondent pay their costs of the proceedings. 
  2. [5]
    The respondent submits that only a partial order for costs is fairly open and, in the circumstances of this case, the respondent should not be required to pay more than 35% of the claimants’ costs. 

Statutory Framework

  1. [6]
    Section 34 Land Court Act 2000 (LCA) 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. [7]
    Section 27 Acquisition of Land Act 1967 (ALA) 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)."
  1. [8]
    Section 27 ALA is a provision to the contrary of s 34 LCA and prevails over s 34 for the purposes of determining costs in these proceeding.
  2. [9]
    In terms of s 27(2) ALA the claimants’ final claim, excluding disturbance items, was $6,351,800[2], while the respondent’s valuation finally put in evidence was $2,570,000 excluding disturbance[3].  Compensation was determined in the amount of $4,562,554 including disturbance.  As the compensation awarded is closer to the claimants’ final claim than the respondent’s final valuation put in evidence, the operation of s 27(2) ALA means that costs if any, can only be awarded to the claimants.

Legal Principles

  1. [10]
    In exercising the discretion to award or not to award costs in compulsory acquisition of land cases, the following principles should be considered:
  1. (a)
    The discretion is to be exercised judicially, that is for reasons that are not arbitrary, and may be justified by reference to relevant considerations.[4]
  2. (b)
    Compulsory acquisition cases are different from ordinary claims in the significant respect that the claimant, unlike the ordinary plaintiff, has no choice whether to make a claim or not. The mere acquisition by a compulsory process gives the claimant a claim to compensation which he or she could hardly be expected to renounce.

In Barns v Director-General, Department of Transport[5] 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.  Although it has attracted some criticism in recent years, there was no attempt by the legislature to modify it when the practice of this Court was given attention in the Land Act 1994.  It is a general rule which prima facie should be applied in this case.

The respondent submitted that the rule is not always applied by Courts exercising jurisdiction in land compensations 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.  These 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 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 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. (c)
    The conduct of the parties and the relative success of their claims are relevant to informing the discretion with respect to costs.  The Land Appeal Court said in Yalgan[6], in respect of the Land Court’s power to award costs in compulsory acquisition costs:

“In essence the relevant considerations in relation to an award of costs in this matter are as follows:

  1. (a)
    The claimant had a claim for compensation which it had to have determined by the Land Court.
  2. (b)
    The claim for compensation was not exorbitant.
  3. (c)
    The claimant was not “wholly successful” in the litigation.
  4. (d)
    Whatever method is used to calculate the median sum, the amount of compensation as determined was nearer to the amount finally claimed by the claimant than to the amount of the valuation finally put in evidence by the constructing authority.
  5. (e)
    Although the Land Court did not accept the valuation or the method for calculating the amount of compensation advanced by the claimant, the Court did not accept the totality of the evidence of the constructing authority on those matters.
  6. (f)
    In the absence of special circumstances, the claimant ought to have received its reasonable costs of obtaining the compensation that is its due.
  7. (g)
    Neither party criticizes the conduct of the other in the presentation of its case before the Land Court. In particular, there was no suggestion that the claimant had pursued a vexatious, dishonest or grossly exaggerated claim or had presented its case in such a way as to impose unnecessary burdens on the constructing authority or the Land Court.
  8. (h)
    Given that:
    1. Neither party put its case on the same basis as that on which the judgment was made;  and
    2. Even if before the hearing one party had adopted the approach taken by the Court, the parties would have been apart by a significant amount,

 it should not be assumed that the matter would have been settled.

  1. (i)
    The matter was complex and was an appropriate matter to be heard and determined by the Land Court.”

The Court went on to say[7]:

  “We have also concluded that, given the complexity of the case and the fact that the claimant was not wholly successful in gaining the amount claimed or in convincing the Court to adopt the claimant’s methodology for calculating compensation, it is appropriate to make a partial award of costs.”

Submissions as to costs

  1. [11]
    The respondent submitted that:
  • the claimants’ final claim ($6,351,800) was exorbitant[8], only just closer to the midpoint than the respondent’s valuation, and was repeatedly amended with the final amendment from $10,800,000 only occurring on the first day of the hearing.  The respondent thereby incurred unnecessary costs; 
  • hearing dates were vacated on six different occasions due to the changing nature of the claimants’ claim;
  • at the hearing the claimants failed on many of the issues needed to support the final claim.  In particular the court did not accept most of the evidence provided by their valuer Mr Henderson[9].
  1. [12]
    The claimants submitted that
  • the final claim was not exorbitant.  Further, the respondent’s position was in error and the final award was nearly $2 million more than the amount the respondent was prepared to pay. 
  • the claims were always based on the highest and best use of the land, that is that part of the land was capable of subdivision.  The higher sum claimed was based on an alternate case which contained a larger development area of 14.2 ha, rather than the 6.252 ha found by the court as being capable of development.  The claimants’ final claim featured as an alternative case for many years before the hearing.  The three alternative claims were all based on the fact that development was possible and involved the same issues, the same witnesses and in the main, the same evidence.
  • the respondent’s case was always based on a complete denial of the development potential of the land.  There was no evidence that the respondent’s position changed when the final claim was made, which was consistent with it having a fixed view as to the lack of development potential.  The respondent was wholly unsuccessful with respect to its position that the land did not have development potential.
  • the claimants submitted that they were successful with respect to most of the significant issues in the trial such as traffic and access, civil engineering, need and town planning.

Evidence

  1. [13]
    The subject land was resumed by the respondent on 18 February 2005.
  2. [14]
    The claimants submitted a compensation claim of $6,500,000 plus improvements of $13,732 and disturbance costs of $30,000 on 16 May 2005[10]. 
  3. [15]
    An advance payment was made by the respondent on 15 July 2005 in the sum of $2,200,000[11]. 
  4. [16]
    On 9 May 2008 (nearly three years after the acquisition) the claimants filed a compensation claim in the Land Court claiming $11,300,000 based on the potential development of 111 lots.
  5. [17]
    On 30 July 2010 the respondent became aware that the claimants were changing the potential development lots to 151, although no compensation figure was communicated to them[12].
  6. [18]
    On 3 December 2010 a second joint expert report was prepared based on 145 lots, not 151 lots[13].
  7. [19]
    On 15 September 2011 the claimants’ Amended Statement of Facts was received by the respondent in which the claimants particularized compensation at $7,635,500 based on the development of 145 lots[14]. 
  8. [20]
    On 2 April 2012 the claimants’ filed and served their Further Amended Statement of Facts claiming:
  1. (a)
    $7,635,500 based on 145 lots
  1. (b)
    $6,418,300 based on 69 lots
  1. (c)
    $5,236,750 based on 43 lots
  1. [21]
    On 29 May 2013 the respondent received Mr Henderson’s valuation report which effectively put the compensation claim at $10,800,000 plus disturbance costs.[15]
  2. [22]
    At the commencement of the hearing, the claimants identified their final claim as $6,351,800 based on 66 lots.  However neither the smaller or larger development proposals were abandoned by the claimants. 

Costs determination

  1. [23]
    Although the claimants’ claim has varied over the last 10 years, it was consistently argued on the basis that there was residential development potential over part of the resumed land.  This was always rejected by the respondent Council. 
  2. [24]
    The claimants have succeeded in their claim for compensation, the final award being nearly $2,000,000 more than the advance paid by the respondent.  It was therefore necessary for the claimants to pursue this litigation to a final hearing.  Further, I do not consider that the final claim of $6,351,800 based on a development area of 6.252 ha was vexatious, dishonest or grossly exaggerated. 
  3. [25]
    Those are all factors which point to an award of costs in favour of the claimants. 
  4. [26]
    However, to be weighed against those matters is the fact that the claimants’ case and the quantum of compensation claimed varied considerably over the 8.5 years that elapsed between the acquisition of the land and the hearing.  While it is recognized that the case was complex, I consider that the changes in the claim added unnecessarily to the costs of the proceedings.  Further, the claimants’ persistence in putting forward three alternative claims also added unnecessarily to the costs.  It was only at the commencement of the hearing that the claimants identified their final claim and, even at that point, the other two development scenarios were not abandoned.  If the claimants’ position had been clarified and simplified earlier in the proceedings, the case the respondent was required to meet and the assessment of compensation would have been less complex. 
  5. [27]
    The respondent submitted that the trial dates were vacated on six occasions usually because the claimants amended their claim.  The evidence shows that the trial dates were vacated due to the conduct of both parties at different times.  I note the affidavit of Mr P Boyce filed 8 July 2015 and the affidavit of Mr B Bathersby filed 19 June 2015.  The evidence contained in these affidavits does not show that the claimants were more to blame with respect to delays than the respondent.  I particularly note and rely upon paragraphs 217-221 of the affidavit of Mr P Boyce in coming to this conclusion.
  6. [28]
    Having considered the evidence in this matter I have determined that the claimants should be awarded 80% of their costs of the proceedings.  My reasons for this are as follows:
  1. (a)
    The claimants were the successful party in the proceedings.  It was necessary for the claim for compensation to be litigated for the claimants to receive approximately $2 million more than the advance paid by the respondent.
  1. (b)
    This is a compulsory acquisition case and this feature distinguishes it from other litigation, in that the claimant was virtually compelled to make a claim for compensation.
  1. (c)
    The succession of amounts claimed by the claimant were not exorbitant, vexatious, dishonest or grossly exaggerated.  They were all based on the same premise that part of the resumed land could be developed for residential allotments.  The respondent at all times contested this important fact regardless of the amounts claimed.
  1. (d)
    The claimants were not wholly to blame for the delays experienced in this case and on my view of the evidence, I do not accept that the claimants were more to blame for these delays than the respondent.
  1. (e)
    Although I did not accept the method for calculating the amount of compensation advanced by the claimants’ expert Mr Henderson, neither did I accept the totality of the evidence of the respondent’s valuer or other experts. 
  1. (f)
    In the absence of special circumstances the claimant would be entitled to its costs of obtaining the compensation it is due.  However, as discussed above, the conduct of the claimants’ case was unnecessarily complicated by their proposing and pursuing 3 development scenarios and the multiple changes to those proposals.  This added unnecessarily to the costs of the litigation. 

Interest

  1. [29]
    The claimants seek interest from the date the land was resumed on 18 February 2005 until payment of compensation, subject to an allowance for the advance payment of $2,200,000 that was made on 15 July 2005.
  2. [30]
    The respondent submitted that this matter had progressed very slowly and, in fact, had taken more than 10 years to resolve.  The respondent said that the slow progression of this case was due to the claimants’ delay and lack of focus.  Taking a broad brush approach, the respondent submitted that interest should only be awarded for the periods 18 February 2005 to 16 May 2005 and 8 February 2009 to 8 February 2013 to the day payment is made. 

Legal Principles

  1. [31]
    Section 28 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. [32]
    It has long been the practice of this Court to order that interest be paid on compensation as from the date of resumption until compensation has been paid.
  2. [33]
    The Land Appeal Court said in Small v Brisbane City Council[16]:

“We think it would be most unfair and contrary to equitable principles to deny a dispossessed owner interest on his compensation monies in cases where he has lost possession of his property, its enjoyment and/or productivity.  To deny interest is to deny him the earning power of the money into which the law provides his interest in the resumed land is ultimately to be converted.  It would be a normal incidence of bargaining in the business and commercial world for a purchaser to pay interest on outstanding purchase money after he had obtained possession of the land the subject of his purchase and we fail to see why a resuming authority should be placed in a more favourable position than a hypothetical purchaser.”

  1. [34]
    However, the long held practice of paying interest in compulsory acquisition matters is subject to two exceptions, as discussed in Cox v Water Resources Commission[17]:
–
where there has been unreasonable delay in lodging the claim for compensation and/or in pursuing the claim;
–
where a dispossessed owner remains in possession of the land.
  1. [35]
    The Land Appeal Court in Alex Gow Pty Ltd v Brisbane City Council[18]examined the legal principles relevant to awarding interest in compulsory acquisition cases.  The Court referred to decisions relevant to interest in other jurisdictions such as Serisier Investments Pty Ltd v English[19] and Bennett v Jones[20] and determined that:
  1. (a)
    Interest should be awarded unless there are good reasons for not awarding it.  This is especially so in compulsory acquisition cases where the constructing authority has the property to the exclusion of the claimant from the date of the resumption.
  1. (b)
    One of the reasons for not awarding interest is where there has been unreasonable delay.  Mere delay would not be sufficient for withholding interest.
  1. (c)
    Whether delay is reasonable or not will depend on the circumstances of each case.
  1. (d)
    The purpose of an award of interest is compensatory, not punitive. It is to compensate a claimant for the loss of enjoyment and earning power of his land from the date of resumption.

Submissions

  1. [36]
    The respondent submitted that, during the 3 year period between the date the land was resumed (18 February 2005) and the claim was filed (9 May 2008), there was no meaningful activity by the claimants[21].
  2. [37]
    The respondent also submitted that for 5 years after the claim was filed until the matter was finally listed for hearing, the claimants caused considerable delay because of their multiple changes of position with respect to their claim.  The fact that the claimants abandoned their highest claim highlighted that time was wasted during this 5 years through fault on the claimants’ part. 
  3. [38]
    The claimants submitted that Mr Boyce’s evidence[22] established that the principal cause of any delay was not the fault of the claimants.  Even if it were, having regard to the legal principles established in the Alex Gow case, delay of itself would not be a sufficient reason to deprive the claimants of interest. 
  4. [39]
    The claimants also submitted there was no question of any economic disadvantage to the respondent which had been in possession of the land since resumption, while the claimants have not had any recompense except the advance.  In real terms, it was submitted, the claimants have not had the land or the money during the last ten years and interest is the appropriate way to properly compensate them for that. 

Evidence

  1. [40]
    The respondent says that in the first 3 years after the land was resumed, there was only limited activity by the claimants in pursuit of their claim.[23]
  2. [41]
    Mr Boyce’s affidavit provided evidence that there was a deal of work undertaken during these first 3 years, as follows[24]:
–
Waiting for and reviewing the Land Court and Land Appeal Court decision in the matter of McPherson. The McPherson land was near the claimants’ land and the courts’ compensation decisions were relevant to the claimants’ claim for compensation.
–
Experts were engaged such as Mr Henderson (valuer), Mr Ryter (town planner), Dr Johnson and Mr Della (civil engineers). Ground survey work was undertaken by JG Goodwin Midson & Partners.
–
A copy of the respondent’s valuer’s report (Mr Carrick), was obtained.
  1. [42]
    Three years between resumption and filing a claim is a long time.  However there is no doubt this has been a complex matter from day one.  In reviewing the available evidence, it would appear that the claimants may have contributed to the delay but I do not believe they have been guilty of unreasonable delay during this period.  It was necessary for the claimants to assess their claim properly before filing.  Waiting for the McPherson decisions, engaging experts to prepare reports and obtaining the respondent’s valuer’s report were reasonable actions.
  2. [43]
    It would also appear that the claimants had some difficulty obtaining a copy of the valuation report from the respondent.  In particular I note that the claimants’ solicitors requested information about Mr Carrick’s report in October 2006 but were not forwarded a copy of his report until over one year later on 6 November 2007, despite the report being dated 12 June 2006.[25]  Therefore some of the delay of these first 3 years must lie at the feet of the respondent.
  3. [44]
    A further 5 years elapsed between the filing of the claim in May 2008 and its final listing for hearing in February 2013.
  4. [45]
    The claimants, through evidence provided in Mr Boyce’s affidavit, summarised the reasons for delay over this period as follows[26]:
–
The extraordinary lengths the claimants had to go to, to obtain flood information from the respondent.  This should have been a relatively simple process.
–
The delay between Dr Johnson and the respondent’s expert Mr McAnany. The delay was largely caused by Mr McAnany.
–
The illness suffered by Mr Ryter meant he could not continue with his work on the claimants’ behalf and it was necessary for a new town planner (Mr Brown) to come up to speed from 6 December 2010.
–
The issue of disclosure became a major issue between the parties.
–
There were some delays in the delivery of the valuers’ joint report.
–
There were further delays in respect of the delivery of the final experts’ reports by both sides.
–
The trial dates were vacated for various reasons including the need of both parties to finalise expert reports, the respondent not providing flood study information, the claimants not delivering their amended points of claim, Counsel for the claimants not being available, and the respondent’s expert Mr McAnany not being available.
  1. [46]
    Mr Bathersby’s affidavit (filed 19 June 2015) contains no real evidence contrary to Mr Boyce’s affidavit.  Mr Bathersby focuses on the differing and alternate claims made by the claimants throughout these 5 years.  I note that I have already dealt with the alternate claims issue and determined that it was a basis for the claimants to be denied 20% of their costs of the proceedings.

Determination of interest 

  1. [47]
    Having considered all the evidence in this matter, I have determined that interest from the date of resumption to the date of payment should be awarded to the claimants.  My reasons for this are as follows: 
  1. (a)
    This case has taken a very long time to resolve (8.5 years from resumption to court hearing), however on a careful review of all the available evidence, I am not convinced that the delay lies solely at the feet of the claimants, as has been submitted by the respondent.  In seeking to have interest reduced, the respondent has pointed to the delays in this matter.  There have been delays with trial dates being set aside on six occasions.  However, the evidence when viewed as a whole shows delay and lack of focus on both sides, such that on a global view the parties appear to be as much to blame as each other for the delays.
  1. (b)
    The evidence of Mr Boyce establishes that the claimants were actively pursuing their claim during the three years between the date of resumption and filing their claim.  The claimants may have been tardy during this period but I am not convinced that their actions amounted to unreasonable delay, as they had to assess their claim properly in a complex matter.  I also note during this period that the respondent delayed for over a year in providing a copy of their valuer’s report (Mr Carrick) to the claimants.
  1. (c)
    From the evidence of Mr Boyce (largely uncontradicted by Mr Bathersby), the delay of five years between the claimants filing their claim and the matter being finally set down for hearing by the Land Court was due to a variety of factors that could globally be put at the feet of both parties.  In other words, I am not convinced by the evidence that the claimants were more to blame for the delay than the respondent.
  1. (d)
    Interest should be awarded in compulsory acquisition cases unless there are good reasons for not awarding it.  This is especially so where the constructing authority has had the use of the property to the exclusion of the claimant from the date of the resumption. I am not persuaded that there are good reasons for the Court not to make a full award of interest.

ORDERS

  1. The respondent is ordered to pay to the claimants 80% of the claimants’ costs of and incidental to the hearing of the claim for compensation, such costs to be agreed between the parties.  If not agreed the costs are to be assessed on the standard basis. 
  1. The respondent is ordered to pay interest to the claimants at the rate of 5.25% per annum on the amount of Four Million, Five Hundred and Forty-Six Thousand, Four Hundred and Eighty-Three Dollars ($4,546,483) for the period commencing 18 February 2005 up to and including 14 July 2005.
  1. The respondent is ordered to pay interest to the claimants at the rate of 5.00% per annum on the amount of Two Million, Three Hundred and Forty-Six Thousand, Four Hundred and Eighty-Three Dollars ($2,346,483) for the period commencing 15 July 2005 up to and including 31 December 2014.
  1. The respondent is ordered to pay interest to the claimants at the average of the 2015 monthly rates shown on the interest rates table on the Land Court Interest Rates page of the Queensland Courts website, on the amount of Two Million, Three Hundred and Forty-Six Thousand, Four Hundred and Eighty-Three Dollars ($2,346,483) for the period commencing 1 January 2015 up to and including the day immediately preceding the day on which the respondent pays that amount to the claimants. 
  1. The respondent is ordered to pay interest to the claimants at the interest rate to be calculated by reference to the interest rates table in the Land Court Interest Rates page of the Queensland Courts Website, for each disturbance item allowed for the periods commencing on the dates on which the claimants paid each of these disturbance amounts, up to and including the day immediately preceding the date on which the respondent pays those amounts to the claimants.

CAC MacDONALD

PRESIDENT OF THE LAND COURT

Footnotes

[1] Leacy v Sunshine Coast Regional Council [2015] QLC 8.

[2]  At [4]. 

[3]  At [5]. 

[4] Wyatt v Albert Shire Council (1987) 1 Qd R 486 at 489;  Yalgan Investments Pty Ltd v Albert Shire Council (1997) 17 QLCR 401

[5]  (1997-98) 18 QLCR 133 at 135,136 (citations omitted).

[6]  At 416, 417. 

[7]  At 417. 

[8]  The claimants’ final claim was significantly above the award – 40% or $1,817,567.

[9]  Para 6 of the respondent’s submissions particularises the evidence of Mr Henderson the court rejected.

[10]  Affidavit of Brendan Bathersby filed 19 June 2015 (BB), [4]/71.  Two affidavits by Mr Bathersby were filed on 19 June 2015, one containing 71 paragraphs, the other 20 paragraphs.  Only the 71 paragraph affidavit is referred to in this decision.   

[11]  Affidavit of Peter Boyce filed 8 July 2015 (PB) [8].

[12]  BB [31].

[13]  BB [34]. 

[14]  BB [46]. 

[15]  BB [55]. 

[16]  (1968) 35 CLLR 239 at 248.

[17]  (1996-97) 16 QLCR 266 at 273.

[18]  (2001) 22 QLCR 292 from [69]. 

[19]  (1989) 1 Qd R 678.

[20]  (1977) 2 NSWLR 355.

[21]  BB [7]. 

[22]  Affidavit of PB filed 8 July 2015.

[23]  BB [7]. 

[24]  PB [9]. 

[25]  PB [26], [32], [33] and [35].

[26]  PB [217] – [219].

Close

Editorial Notes

  • Published Case Name:

    Leacy v Sunshine Coast Regional Council (No. 2)

  • Shortened Case Name:

    Leacy v Sunshine Coast Regional Council (No. 2)

  • MNC:

    [2015] QLC 39

  • Court:

    QLC

  • Judge(s):

    MacDonald P

  • Date:

    06 Nov 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
Alex Gow Pty Ltd v Brisbane City Council (2001) 22 QLCR 292
2 citations
Jump To
Cite 1 - (2001) 22 QLCR 292
Cite 2 - (2001) 22 QLCR 292
Barns v Director-General (1998) 18 QLCR 133
2 citations
Jump To
Cite 1 - (1998) 18 QLCR 133
Cite 2 - (1998) 18 QLCR 133
Bennett v Jones (1977) 2 N.S.W. L.R. 355
1 citation
Jump To
Cite 1 - (1977) 2 N.S.W. L.R. 355
Cox v Water Resources Commission (1997) 16 QLCR 266
2 citations
Jump To
Cite 1 - (1997) 16 QLCR 266
Cite 2 - (1997) 16 QLCR 266
I Small and Another v Brisbane City Council (1968) 35 CLR 239
2 citations
Jump To
Cite 1 - (1968) 35 CLR 239
Cite 2 - (1968) 35 CLR 239
Leacy v Sunshine Coast Regional Council [2015] QLC 8
4 citations
Jump To
Cite 1 - [2015] QLC 8
Cite 2 - [2015] QLC 8
Cite 3 - [2015] QLC 8
Cite 4 - [2015] QLC 8
Serisier Investments Pty Ltd v English [1989] 1 Qd R 678
1 citation
Jump To
Cite 1 - [1989] 1 Qd R 678
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
Yalgan Investments Pty Ltd v Shire of Albert (1997) 17 QLCR 401
4 citations
Jump To
Cite 1 - (1997) 17 QLCR 401
Cite 2 - (1997) 17 QLCR 401
Cite 3 - (1997) 17 QLCR 401
Cite 4 - (1997) 17 QLCR 401

Cases Citing

Case NameFull CitationFrequency
Sunshine Coast Regional Council v Leacy (No. 2) [2016] QLAC 51 citation
1

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