Caseldan Pty Ltd v Moreton Bay Regional Council (No. 2)
[2015] QLC 7
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- Unreported Judgment
- Appeal Determined (QCA)
- Caseldan Pty Ltd v Moreton Bay Regional Council (No. 2)[2015] QLC 7
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Caseldan Pty Ltd v Moreton Bay Regional Council (No. 2)[2015] QLC 7
Caseldan Pty Ltd v Moreton Bay Regional Council (No. 2)[2015] QLC 7
LAND COURT OF QUEENSLAND
CITATION: | Caseldan Pty Ltd v Moreton Bay Regional Council (No. 2) [2015] QLC 7 |
PARTIES: | Caseldan Pty Ltd (applicant) |
| v |
| Moreton Bay Regional Council (respondent) |
FILE NO: | AQL809-12 |
DIVISION: | General Division |
PROCEEDING: | Application for costs |
DELIVERED ON: | 26 March 2015 |
DELIVERED AT: | Brisbane |
HEARD ON: | 10 March 2015 |
HEARD AT: | Brisbane |
MEMBER: | WA Isdale |
ORDER: | The applicant pay the respondent’s costs of and incidental to the hearing and determination of the claim for compensation and this General Application. Such costs are to be agreed or, failing agreement, are to be assessed on the standard basis. |
CATCHWORDS: | COSTS – COMPULSORY ACQUISITION – s 27 Acquisition of Land Act 1967 – where the constructing authority was successful on all issues – whether costs should be awarded to the constructing authority – factors governing the exercise of discretion – Calderbank offer – whether costs should be awarded on the indemnity basis Acquisition of Land Act 1967 Land Court Act 2000 Uniform Civil Procedure Rules 1999 Agreedto Pty Ltd v Chief Executive, Department of Natural Resources and Mines (No. 2) (2012) 33 QLCR 479 Barns v Director-General, Department of Transport (1997-1998) 18 QLCR 133 Calderbank v Calderbank [1976] Fam 93 Caseldan Pty Ltd v Moreton Bay Regional Council [2014] QLC 53 Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 Denlay v Commissioner of Taxation (No. 2) (2013) 302 ALR 237 Emanuel Management Pty Ltd (In Liquidation) & Ors v Foster’s Brewing Group Ltd & Ors [2003] QSC 299 Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No. 2) [2005] VSCA 298 Hadgelias Holdings Pty Ltd and Waight v Seirlis & Ors [2014] QCA 325 Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liquidation) & Ors (2012) 33 QLCR 43 Ostroco v Department of Transport and Main Roads (No. 3) [2014] QLAC 7 PT Limited & Westfield Limited v Department of Natural Resources and Mines (2007) 28 QLCR 295 Stewart (in his capacity as liquidator of Newtronics Pty Ltd (in liq)) & Anor v Atco Controls Pty Ltd (in liq) (2014) 311 ALR 351 Tector v FAI General Insurance Company Limited [2001] 2 Qd R 463 Vass and Lambert v Coordinator-General (No. 2) [2015] QLAC 2 Wyatt v Albert Shire Council [1987] 1 Qd R 486 |
APPEARANCES: | D O'Brien QC instructed by Corrs Chambers Westgarth for the applicant C Hughes QC and N Kefford instructed by Legal Services, Moreton Bay Regional Council for the respondent |
Background
- [1]The applicant’s 10.1 ha of land, used as a golf course, was acquired under the Acquisition of Land Act 1967 by the respondent. As the parties were not able to reach agreement in relation to the compensation due to the applicant it commenced proceedings in this Court for the matter to be determined. When proceedings were commenced on 23 October 2012 the value of the land was claimed to be $8,629,500. At the hearing the applicant contended for a value of $5,555,000 on the basis that the land had potential for a mixed-use development. In the alternative, the value was said to be $3,535,000 if the land’s potential was limited to use as playing fields. The respondent contended that the value was $1,800,000 as land suitable for sport and recreation purposes. This Court heard the matter over eight days commencing on 19 May 2014 and decided that the value of the land for the purpose of compensation to the dispossessed owner was $1,800,000.[1]
- [2]On 30 January 2015, a General Application was filed on behalf of the successful party, the respondent, for orders that the applicant pay its costs of and incidental to the hearing and determination of the claim for compensation. It is contended that the costs should be assessed on the indemnity basis.
- [3]The respondent provided an affidavit by Angus James Conaghan, its lawyer with carriage of the matter. The affidavit was filed on 30 January 2015. Exhibited to it is the agreement for the taking of the land, from page 30, and the valuation report dated 16 November 2011 (from page 1) showing a value of $1,800,000 for which it has relevantly always contended. The agreement, at page 30 of the exhibit, records an advance of $2,000,000. At page 44 a remittance advice shows that sum paid on 25 July 2012. At pages 62 to 64 inclusive there is an exchange of letters. Firstly, by letter dated 12 February 2014, expressed to be “without prejudice except as to costs”, the respondent rejects the applicant’s indication at a mediation that the matter could be settled for $4,300,000. It went on as follows:
“However, in the interests of resolving the matter in a timely and cost effective way, and avoiding the costs and delay associated with litigation, the Council would be willing to settle the litigation for the sum of $2.8million together with disturbance items and interest (as agreed or as determined by the Court).
Please note that if this Calderbank offer is not accepted, Council proposes to rely on the terms of this letter on the question of costs in the event the matter proceeds to hearing.”
- [4]It is not in dispute that this was an offer of the sort characterised as a Calderbank offer,[2] that is, one made “without prejudice except as to costs”. The respondent, by its letter, declared its position on the matter of costs. I observe that the letter did not specifically refer to costs on the indemnity basis but to costs more generally.
- [5]
- [6]The parties made written submissions on the matter of costs and oral submissions were heard on 10 March 2015.
- [7]The respondent points out that on 12 February 2015 the Court made orders dealing with stamp duty and interest. The only remaining issue is its application for costs. The applicant submits that the respondent has failed to discharge the onus on it of establishing why a costs order should be made against it at all and why there should be an order on the indemnity basis.
The statutory framework for costs
- [8]Section 34 of the Land Court Act 2000 provides that:
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.
- [9]Section 27 of the Acquisition of Land Act 1967 is a provision to the contrary and it prevails over s 34 for the purposes of determining costs of the proceedings. Section 27 provides that:
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).
- [10]In the facts of the present case, the operation of s 27(2) will have the result that costs, if any, shall be awarded to the constructing authority.
The discretion
- [11]Section 27(1) provides that, within the bounds set by s 27(2), costs are in the discretion of the Court. The discretion is to be exercised judicially, that is for reasons that are not arbitrary and can be justified.[5] One of the factors to be taken into account is the outcome of the case. In Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liquidation) & Ors[6] the Land Appeal Court, considering s 34, pointed out that while the rule in r 689 of the Uniform Civil Procedure Rules 1999 that the costs follow the event, does not govern the exercise of the discretion in cases such as the present, it does nevertheless inform it as there is justice in that approach. It protects those put to expense by others.[7] The Court should not be bound by any presumptive rule or principle in exercising its discretion[8] but must consider all of the facts and circumstances of the case.
- [12]It is relevant to take into account that the matter concerned compensation for the compulsory acquisition of land. In Barns v Director-General, Department of Transport[9] 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 compensation matters. He cited Moyses v. Townsville City Council, Theo v. Brisbane City Council, Minister for the Environment v. Florence and Banno v. Commonwealth of Australia. 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.”[10]
Indemnity costs
- [13]Indemnity costs were considered in Colgate Palmolive Co and Another v Cussons Pty Ltd.[11] Sheppard J considered that the court would not ordinarily depart from making a costs order on what is now described as the standard basis unless there was some special or unusual feature of the case such that justice would require it. Recognising that the categories in which the discretion may be exercised are not closed and that there was a discretion, His Honour considered that circumstances which have been thought to warrant the exercise of the discretion included:
- (a)the making of allegations of fraud knowing them to be false, and the making or irrelevant allegations of fraud;
- (b)evidence of particular misconduct that causes loss of time to the court and the other parties;
- (c)the fact that the proceedings were commenced for some ulterior motive;
- (d)the fact that the proceedings were commenced in wilful disregard of known facts or clearly established law;
- (e)the making of allegations that ought never to have been made or the undue prolongation of a case by groundless contentions;
- (f)an imprudent refusal of an offer to compromise;
- (g)an award of costs on an indemnity basis against a contemnor.
- [14]In Stewart (in his capacity as liquidator of Newtronics Pty Ltd (in liq)) & Anor v Atco Controls Pty Ltd (in liq) (No. 2)[12] the High Court constituted by five Justices who delivered a joint judgment said:
“[4] This court has a general discretion as to costs. The non-acceptance of a Calderbank offer is a factor, in some cases a strong factor, to be taken into account on an application for indemnity costs. The respondent submits that its rejection of the offer was not unreasonable. If that be the test, it would appear to require at the least that the respondent point to a reason for not accepting the offer beyond the usual prospects of being successful in litigation.”
- [15]In that case the High Court found that in view of one of its decisions on the point litigated, not accepting the offer made was not reasonable and an order for indemnity costs was made for the appeal to the Court of Appeal, the hearing of which occurred after the offer.[13] The Court noted that there was no offer on foot prior to the time of the appeal to the High Court. Their Honours said:
“There is consequently no failure on the part of the respondent that could found an order for indemnity costs.”[14]
- [16]The High Court noted that the appellants had been substantially successful on the application before it and allowed costs on the usual, that is the standard, basis.
- [17]In Denlay v Commissioner of Taxation (No. 2)[15] Logan J made an award of indemnity costs where the Commissioner had actually conducted litigation fairly but it was in the circumstances a continuation of a decision which was unreasonable in the sense of being “Wednesbury unreasonable”, that is so unreasonable that no decision maker, acting reasonably, could have so decided. His Honour had noted that the conduct of a party as litigant is what is relevant but their knowledge may be itself relevant to assessing their conduct as a litigant.[16]
- [18]The Land Appeal Court considered an application for indemnity costs in Ostroco v Department of Transport and Main Roads (No 3).[17] The Land Appeal Court said:
“[38] The law relating to indemnity costs was conveniently summarised by Chesterman J (as he then was) in Emanuel Management Pty Ltd (in Liquidation) & Ors v Foster’s Brewing Group Ltd & Ors and Coopers & Lybrand & Ors. His Honour had this to say:
‘[17] The authority to which attention is usually directed is Colgate-Palmolive Co. v Cussons Pty Ltd (1993) FCA 536; (1993) 46 FCR 225 in which Sheppard J identified a number of circumstances in which it may be appropriate to make an order for indemnity costs. They include:
- (i)Making allegations of fraud knowing them to be false or making irrelevant allegations of fraud.
- (ii)Misconduct that causes loss of time to the court and the opponent.
- (iii)Commencing or continuing proceedings for some ulterior motive or in wilful disregard of known facts or clear law.
- (iv)Making groundless allegations.
- (v)An imprudent refusal of an offer to compromise.
‘The question must always be whether the particular facts and circumstances … warrant the making of an order for payment of costs other than on a party into (sic) party basis.’
[18] Rosniak v Government Insurance Office (1997) 41 NSWLR 608 (at 616) has perhaps taken the position furthest in deciding that it is not necessary for the party seeking the protection of indemnity costs to establish ethical or moral delinquency by its opponent. It is enough to show ‘unreasonable conduct’ of some sort. That case itself demonstrates that the inexactness of such a test can give rise to difficulty in its application.’ ”
- [19]In Ostroco the Land Appeal Court went on to say:
“[56] This review of the cases would suggest that an offer, and in particular a Calderbank offer, made outside the rules may well be a significant matter in determining whether to award costs on the indemnity basis; and that there are strong policy reasons for making such an award, even when there is not a marked difference between the offer and the ultimate result. However, the making of an order for indemnity costs is discretionary; and there is no fixed rule that in certain circumstances, it should be made.
…
[61] … There is a difference between contesting a matter on a basis which fails; and contesting a matter on a basis which is groundless or without substance. The appellant has not demonstrated that any of the matters on which it relies fall into the latter category. In those circumstances, the fact that the respondent made no offer to settle and paid no advance in respect of compensation could hardly be said to justify an order for indemnity costs for the whole of the proceedings.”
The Land Appeal Court refused to order that the appellant have its costs in the Land Court on an indemnity basis. It was awarded indemnity costs from the time at which it made an offer to settle the Land Appeal Court proceedings. If the offer had been accepted, the respondent would have been in a better position.
- [20]
“[31] I have said enough to indicate that in my opinion there was a degree of irresponsibility in the plaintiffs’ bringing and prosecuting their action against the first defendants. It is significant that extravagant claims of dishonesty, corruption and gross impropriety were made in support of which not the slightest evidence was called. It is a case in which it is right to regard to (sic) the defendants as having been vexed. It is therefore an appropriate case in which to order an order of indemnity costs.”
The respondent’s submissions
- [21]The respondent correctly submits that ordinarily costs are not awarded to punish the unsuccessful party but are intended to be compensatory to indemnify the successful party against the expense to which they have been put by reason of the litigation. The respondent submits that its attempts to resolve the matter without a contested hearing are particularly important.
- [22]Concerning the exercise of the discretion and indemnity costs, reference was made to the decision of the Court of Appeal of Victoria in Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No. 2)[19] where that Court accepted that the unreasonable refusal of an offer of compromise was, by itself, a proper ground for an order for indemnity costs.
- [23]The respondent points out that the amount of compensation determined by this Court on 9 December 2014 was the amount for which it contended and was the amount of the valuation which it had originally obtained. It was less than the advance paid and less than that offered in the Calderbank offer. The applicant had obtained the valuation on 25 March 2013, in the disclosure process.[20] The amounts claimed by the applicant, in contrast, had, it was submitted, been both variable and excessive, based on the flawed assumption that the respondent had withdrawn its support for a loop road as part of a scheme to resume the land when in fact it had never supported such a road, something which the disclosed material and the applicant’s own knowledge made clear.[21] The respondent submits that the fact that the applicant’s case was supported by its expert witnesses does not detract from the flaw in its case, which underlies their opinions.
- [24]The respondent draws attention to what it submits was unreasonable conduct of the applicant’s case by personal and professional attacks on each of the respondent’s expert witnesses, which attacks were all both unwarranted and unsuccessful. The six passages which are pointed to are in the applicant’s trial submissions. They are as follows:
“76. It is noted that despite the strong advocacy by Mr Douglas for the Southern Loop Road in the Comiskey Appeal, in giving evidence in these proceedings, he was unduly reluctant to accept that was the case. He was evasive in answering even simple questions about the position that he had taken in the Comiskey Appeal and attempted to suggest that the Southern Loop Road was no more than a possible option worth exploring.
- Mr Douglas’s clear statements of support for the Southern Loop Road in the Comiskey Appeal speak for themselves. There can be no doubt that his true opinion as to what the appropriate traffic engineering solution is that stated in his evidence in the Comiskey Appeal. His late and unconvincing attempts to introduce caveats and qualifications to that opinion was a transparent attempt to extricate himself from the obvious difficulty that he found himself in in giving evidence for the Respondent Council in these proceedings. The Respondent and Mr Douglas, readily understand that the only substantial hurdle to the Land being developed for the type of purposes contemplated by the Ovenden Plan was the resolution of appropriate traffic arrangements and access. The Southern Loop Road provided that opportunity. Mr Douglas’ continued advocacy in these proceedings for the Southern Loop Road would have called into question (rightly) why it was that the Respondent took the Southern Loop Road off the table as a traffic solution in the Comiskey Appeal when it, and its expert, as well as the expert of the other traffic agency, DTMR, had advocated for such a loop road.
…
- Mr Douglas’ evidence was also unsatisfactory in other ways. In addition to the inconsistences identified above, he made a number of unjustified statements which reflected poorly on his impartiality and credibility. Mr Douglas eliminated completely the notion that either Comiskey or DTMR would support a Southern Loop Road. Mr Douglas’ evidence in relation to a lack of support by DTMR for the Southern Loop Road was embarrassing. When questioned in relation to his statement in his individual report that ‘realistically, such an arrangement is extremely unlikely, in my view, to be supported by … DTMR’, he conceded that he could not point to any evidence at all to support that statement. The following exchange under cross examination reveals Mr Douglas being found out in this regard:
‘Stop giving the speech, Mr Douglas. Mr Douglas, the reality is you cannot point this court to a single piece of paper that would ever suggest that the Department of Main Roads did not advocate for a loop road – for a southern loop road? No. I probably can’t but I’m not saying that in the absence of me not being able to point to that means that Main Roads are supportive.’
…
- Before turning to the question of value, comment should be made of Mr Gillespie’s evidence. Unlike Mr Rabbit, Mr Gillespie’s evidence was confused and confusing. He was not able to answer simple questions and could not explain, in an intelligible way, his valuation approach. His explanation as to how he had applied a 50% discount when valuing the highest and best used based on the Ovenden Plan was typical of his evidence:
‘What I’m interested in is that’s a substantial reduction, 50 per cent?---Yes. Could you please explain to the court how you arrived at the 50 per cent?---Yes. As I was saying it’s – the maximum – when you look at the risk and your deductions because of the risk – and this is what I tried to identify here – is that because there’s a great risk and the risk is greater than a probability and a probability is about 50 per – 35 where probability meets possibility, it was 50 per cent, so that the maximum – the – the risk that I – and I put it at that figure because that’s where probability meets possibility. And so if you’re going to look at a possible intersection there, 50 per cent is the minimum figure.’
- This answer is unintelligible.
- An opinion as to value that cannot be adequately explained is an opinion that should be viewed with much caution. Mr Gillespie’s opinion is such an opinion.”
- [25]The respondent submits that it was successful on all of the issues in contest and that nothing in its conduct would disqualify it from a costs order in its favour. It did at least all that was reasonable to try to avoid a hearing being necessary, made an advance well in excess of the valuation it had and made a generous Calderbank offer months before the hearing.
The applicant’s submissions
- [26]The applicant submits that the respondent has failed to discharge the onus on it for establishing that a costs order should be made in its favour. It points out that in Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No. 2)[22] the Victorian Court of Appeal held that there was no presumption that the party rejecting a Calderbank offer should pay the offeror’s costs on an indemnity basis if the offeree received a less favourable result. The rejection of the offer was a matter to have regard to, the critical question being whether rejecting the offer was unreasonable in the circumstances.
- [27]Attention was directed to Tector v FAI General Insurance Company Limited[23] where the Court of Appeal held that the ordinary rule that costs, when ordered, are to be recovered on the standard basis should only be departed from where the conduct of the party against whom the order is sought is “plainly unreasonable”.[24] The decision of the Court of Appeal in Hadgelias Holdings and Waight v Seirlis & Ors[25] was also referred to. Holmes JA, with whose reasons Gotterson and Morrison JJA agreed, referred to the decision of the High Court in Stewart v Atco Controls Pty Ltd (in liq) (No. 2) which has been referred to earlier in these reasons. Her Honour was of the view that the appellants had more reason than the “usual prospects of being successful” to refuse the offer. The bringing of the appeal was rational and unremarkable and the compromise offer was “not significant”.[26] Her Honour did not think that the appellants acted unreasonably in rejecting the offer which offered “very little”, in fact $2,000 more than the status quo judgment amount and there were reasonable arguments to be made on the effect of the apportionment legislation. Costs were ordered on the standard basis.
- [28]The applicant contends that the circumstances do not suggest that the refusal of the offer was plainly unreasonable as:
- The hearing arose out of a compulsory acquisition of the land by the respondent, in contrast to cases more akin to private litigation such as a determination for the purposes of freeholding.[27]
- The applicant acted reasonably and in good faith, efficiently pursuing its claim with reference to the real issues in dispute.
- Its case was supported by its expert witnesses and consistent with offers made for the land.
- There were other bases for its case besides the one said by the respondent to be flawed, namely that access would have been reasonably assumed to have been going to be provided to the land by the respondent requiring this of itself as a condition of it approving its application to itself to expand its sports complex. Also, the use of the land as sporting fields was a use where the existing access was agreed to be appropriate.
- [29]It is submitted that the respondent does not deal with the fact of the applicant’s expert witnesses expressing detailed opinions regarding the alternative uses of the land or with the offers that were made for it. Specifically, whether in light of the offers, it was reasonable to reject the offer of compromise.
- [30]It is not accepted by the applicant that there were personal attacks on the respondent’s expert witnesses. The criticisms were, it is submitted, directed to professional opinions only and the respondent had attacked the conduct of the applicant’s traffic engineer.
- [31]It is submitted that the case involved complex issues of fact and law. Lack of success, it is argued, cannot be indicative of a fundamental flaw in the applicant’s case which did have real prospects of success. It is also submitted that equity and good conscience suggests that there should be no order as to costs.
Exercising the discretion
Should there be no order as to costs?
- [32]The discretion is to be exercised in view of all of the facts and circumstances of this case. Costs are for the purpose of compensating the successful party for the expense to which it has been put in respect of the claim which was made against it. The conduct of the respondent was a correct, timely and proportionate response to the litigation which the applicant commenced. It did not delay or protract the proceedings and conducted them in a professional and efficient manner. It has been fully successful and the value of the land taken has been found to be the value for which it contended from the outset. It did not call any unnecessary witnesses and the criticisms of its witnesses made by the applicant and considered in the decision delivered on 9 December 2014 were not well founded. The criticisms referred to by the respondent in its submissions in the present application have been set out and while there was liberal criticism of the witnesses called by the respondent, are not beyond the bounds of permissible dealing with the opinion which the witness held and of the basis for the opinion. The opinions of those witnesses, after being tested in cross-examination, were found to be reliable evidence upon which the Court made its decision. The decisions made by the respondent to call those witnesses and rely on their evidence were shown to be proper.
- [33]The respondent was brought to this Court by the applicant for a substantial hearing after it had paid an advance of $2,000,000 very soon after the acquisition and it had also made an offer of compromise over three months before the hearing commenced. The offer was for $2,800,000 and the amount contended for by the respondent and found by the Court to be the value of the land was $1,000,000 less than the amount offered and rejected.
- [34]For the Court to make no order as to costs, the fully successful litigant would have to bear the expense of its successful response to the case in full. This would be unjust and inequitable and would not be an outcome that could be allowed in good conscience. In all of the circumstances of this case the Court will not make no order as to costs.
Should there be an indemnity costs order?
- [35]An imprudent refusal of an offer to compromise is a relevant and significant matter. The decision to reject the offer, although resulting in a less beneficial outcome for the applicant, must be considered in the light of the nature of the proceedings. The applicant’s property had been compulsorily acquired. This feature of the litigation distinguishes it from private litigation. The applicant did vary its claim from the sum originally claimed but did not do so in an untimely manner. It presented two alternative levels of value but there was expert support for both. It proceeded efficiently in Court. The manner of dealing with the respondent’s witnesses has been considered and was not such as to be improper. There were no improper or groundless accusations or disregard of facts or law. There was a difference of expert opinion and the opinions upon which the applicant relied were not accepted by the Court. The applicant has shown that its reason for not accepting the offer for compromise was more than its assessment of its prospects of success with its highest claim. It rested also on its claim in relation to the value of the land for playing field use, a less contentious though still unsuccessful claim which was for a value of $3,535,000, well above the offer. In view of all of the circumstances of this case, the Court is not satisfied that a sufficient basis has been shown for making an order for indemnity costs.
Should there be an order for costs on the standard basis?
- [36]For the reasons given in considering whether there should be no order for costs, there should be an order that the applicant pay the respondent’s costs of and incidental to the hearing and determination of the claim for compensation and this General Application. Such costs are to be agreed or, failing agreement, are to be assessed on the standard basis.
Order
The applicant pay the respondent’s costs of and incidental to the hearing and determination of the claim for compensation and this General Application. Such costs are to be agreed or, failing agreement, are to be assessed on the standard basis.
WA ISDALE
MEMBER OF THE LAND COURT
Footnotes
[1] Caseldan Pty Ltd v Moreton Bay Regional Council [2014] QLC 53.
[2] Calderbank v Calderbank [1976] Fam 93.
[3] Affidavit of Angus James Conaghan filed 30 January 2015, exhibited at page 63.
[4] Ibid page 64.
[5] Wyatt v Albert Shire Council [1987] 1 Qd R 486 at 489.
[6] (2012) 33 QLCR 43 at [4].
[7] Vass and Lambert v Coordinator-General (No. 2) [2015] QLAC 2 at [59].
[8] PT Limited & Westfield Limited v Department of Natural Resources and Mines (2007) 28 QLCR 295 at [20] where the Valuation of Land Act 1944 was applicable.
[9] (1997-1998) 18 QLCR 133.
[10] Ibid at 135, 136. Followed in Vass and Lambert v Coordinator-General (No. 2) [2015] QLAC 2 at [62].
[11] (1993) 118 ALR 248 at 256, 257.
[12] (2014) 311 ALR 351.
[13] Ibid at [3].
[14] Ibid at [7].
[15] (2013) 302 ALR 237.
[16] Ibid at [21] in the passage quoted by Logan J.
[17] [2014] QLAC 7 at [38].
[18] [2003] QSC 299.
[19] [2005] VSCA 298 at [28].
[20] Exhibit 2, item 7.
[21] Affidavit of Angus James Conoghan filed 30 January 2015. Pages 46-61 of the exhibit.
[22] (2005) 13 VR 435; [2005] VSCA 298.
[23] [2001] 2 Qd R 463.
[24] Ibid at 464 line 30.
[25] [2014] QCA 325.
[26] Ibid at [14].
[27] Agreedto Pty Ltd v Chief Executive, Department of Natural Resources and Mines (No. 2) (2012) 33 QLCR 479.