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  4. Mahoney v Chief Executive, Department of Transport and Main Roads (No. 4) - [2016] QLC 18

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Mahoney v Chief Executive, Department of Transport and Main Roads (No. 4)[2016] QLC 18

Mahoney v Chief Executive, Department of Transport and Main Roads (No. 4)[2016] QLC 18

LAND COURT OF QUEENSLAND

CITATION:

Mahoney & Ors v Chief Executive, Department of Transport and Main Roads (No. 4) [2016] QLC 18

PARTIES:

John Mahoney, Kathryn Mahoney and the estate of Austin Mahoney

(applicants)

 

v

 

Chief Executive, Department of Transport and Main Roads

(respondent)

FILE NO:

AQL289-11

DIVISION:

General Division

PROCEEDING:

General Applications (two)

DELIVERED ON:

9 March 2016

DELIVERED AT:

Brisbane 

HEARD ON:

2 December 2015

HEARD AT:

Brisbane

MEMBER:

WA Isdale

ORDER:

1. On or about 10 August 2012 the applicants and the respondent agreed that, in the events which have happened, the amount of compensation under the Acquisition of Land Act 1967, save for the item of disturbance, payable to the applicants is $275,000.

2. Compensation is determined in the amount of $275,000.

3. The applicants’ general application filed on 3 September 2015 is dismissed.

4. Written submissions in support of an application for costs by the respondent in relation to the hearing in 2012, and the hearing of these general applications, are to be filed and served within 15 business days, and any written submissions in reply by the applicants are to be filed and served within 10 business days of receipt of the respondent’s written submissions.

5. The parties are to reach agreement on orders relating to disturbance items and interest within 25 business days of the date of publication of these reasons.

6. The proceeding is adjourned for review and directions on a date to be set by the Court.

CATCHWORDS:

General applications – valuation – before and after method – agreement by the parties

Acquisition of Land Act 1967

Civil Proceedings Act 2011, s 48

Uniform Civil Procedure Rules, r 329

Chief Executive, Department of Transport and Main Roads v Cidneo Pty Ltd [2015] QCA 96

Department of Transport and Main Roads v Mahoney [2014] QLAC 1

Housing Commission of New South Wales v San Sebastian Pty Ltd (1978) 140 CLR 196

Mahoney & Ors v Chief Executive, Department of Transport and Main Roads (No. 3) [2013] QLC 11

Mahoney & Ors v Chief Executive, Department of Transport and Main Roads [2014] QCA 356

APPEARANCES:

Ms K Mahoney for the applicants

Mr DR Gore QC for the respondent

SOLICITORS:

Clayton Utz for the respondent

Background

  1. [1]
    The history and background in this matter are usefully summarised in the General Application filed on behalf of the respondent on 28 August 2015:

“1. Prior to the resumption stated below, the Applicants were the owners of Lot 229 on RP 202963 (Land).

  1. On 24 March 2006, the Respondent resumed part of the Land for the purposes of the South West Transport Corridor Project.
  2. At the time of the resumption, the Land was zoned Rural under the Ipswich City Council planning scheme.
  3. An amended taking of land notice was published in the Government Gazette on 20 April 2007 to identify the resumed area as Lot 22 on SP193446.
  4. On 15 August 2011, the Applicants filed an Originating Application to refer their claim for compensation to the Land Court.
  5. On 7 November 2011, the Land Court held a directions hearing, in the course of which the prospect of determining a preliminary point (‘the San Sebastian point’) was discussed, and the Court indicated to the effect that it would only determine the San Sebastian point in a preliminary way if the parties had otherwise agreed on the amount of compensation payable.
  6. On 29 February 2012, the Applicants filed an Amended Originating Application and attached Points of Claim, in which they effectively asserted that the San Sebastian point should be determined on the basis that the Land was zoned Future Urban (rather than Rural) at the time of the resumption.
  7. On 7 August 2012, the parties participated in a Land Court mediation before Mr Barry O'Connor.
  8. On 9 August 2012, the parties’ valuers, using a before and after methodology, agreed that the assessed loss for Scenario 1 (which assumed that the Land was zoned Rural) was $275,000 and that the assessed loss for Scenario 2 (which assumed that the Land was zoned Future Urban) was $1,707,500.
  9. On 10 August 2012, the Applicants advised the Respondent’s solicitors to the effect that they accepted that the accepted loss for Scenario 1 was $275,000 that the accepted loss for Scenario 2 was $1,707,500, that the Land Court hearing should be restricted to the San Sebastian point, and that the valuers were not required to give evidence.
  10. On 10 December 2012, the Land Court commenced a hearing of the San Sebastian point, having been informed by both parties to the effect that, save for disturbance, compensation had been agreed.
  11. On 20 March 2013, the Land Court determined the San Sebastian point in favour of the Applicants (that is, in favour of Scenario 2), and ordered that compensation be determined in the amount of $1,707,500.
  12. On 21 March 2014, the Land Appeal Court allowed an appeal by the Respondent against the orders made on 20 March 2013, and determined the San Sebastian point in favour of the Respondent (that is, in favour of Scenario 1).
  13. On 19 December 2014, the Court of Appeal refused an application by the Applicants for leave to appeal.
  14. Following the decisions in the Land Appeal Court and the Court of Appeal, the matter has been remitted to the Land Court for the determination of compensation in accordance with Scenario 1.
  15. On 14 February 2015, in correspondence to the Respondent’s solicitors, the Applicants contended for the first time that the values agreed in August 2012 did not include an assessment of severance damage.
  16. By correspondence and other exchanges between 17 February 2015 and 7 August 2015, the Respondent, by its solicitors, has attempted to obtain confirmation by the Applicants that they are bound by the agreement made in August 2012, and by their conduct in three separate Court proceedings since then, but such attempts have been unsuccessful.
  17. It is in the interests of justice, and of saving costs and time (including Court time), and consistent with principle, that the orders set out below be made.”

The orders sought by the respondent

  1. [2]
    The respondent’s application sought the following orders:

“1. An order that the Court determine the issue whether the parties (and their respective valuers) have already agreed on the amount of compensation (save for the item of disturbance) payable to the Applicants, following the determination by the Land Appeal Court on 21 March 2014 that compensation should be assessed on the basis that the Land was zoned Rural at the time of the resumption.

  1. A determination that the parties (and their valuers) have already agreed that the amount of compensation (save for the item of disturbance) payable to the Applicants is $275,000.
  1. An order that the Applicants pay the Respondent’s costs of and incidental to this general application.”
  1. [3]
    The grounds upon which the respondent sought these orders were the following:

“1. The Applicants and the Applicants’ valuer have already agreed that the amount of compensation (save for the item of disturbance) payable to the Applicants is $275,000 (given that the San Sebastian point has been determined in favour of Scenario 1).

  1. The parties have participated in proceedings in three separate Courts on the basis that the determination of the San Sebastian point would determine the amount of compensation payable, in the light of the parties prior agreement in that regard.
  1. It is in the interests of justice, and of saving costs and time (including Court time), and consistent with principle, that the Applicants should be bound by their agreement.”
  1. [4]
    The applicants filed a general application on 3 September 2015. It sought the following orders:

“1. An order that the Court determine whether the valuers agreed on the injurious affection and severance loss for which the Applicants should be compensated under the Rural Scenario in the Mediation Exercise.

  1. An order that the Court determine whether depreciation in the value of the remnant land as a consequence of injurious affection and severance loss was calculated in the Mediation Exercise.
  1. An order that the Court determine whether the Respondent had regard to both the value of the land taken and severance damage in settling compensation.
  1. A determination that it was reasonable in the circumstances for the Applicants to agree to compensation in the sum of $275,000 for loss of the land taken only.”
  1. [5]
    The grounds upon which these orders were sought are:

“1. The Applicants agreed to participate in the Mediation Exercise on the basis that the valuers agreed on the value of the land taken and the quantum of severance loss. Information from the Respondent on these key issues is inconsistent with the advice of the Applicants’ valuer which suggests that the valuers did not reach an agreed position.

  1. The Respondent argues that the Applicants’ loss was calculated in a ‘rolled up exercise’ without need for specificity but on three occasions advised the Applicants that the Respondent agreed to specific compensation of $200,000 for loss of separate title and $75,000 for the land taken.
  1. The Applicants’ valuer has not stated that severance loss was taken into account in the Mediation Exercise.”
  1. [6]
    Both applications were heard together. The present dispute relates to land at Yamanto which the applicants purchased in 1982. On 24 March 2006 part of the land was compulsorily acquired by the respondent pursuant to the Acquisition of Land Act 1967 (the Act). The land was taken for the South-West Transport Corridor.
  2. [7]
    The applicants’ claim for compensation was decided by this Court after the dispute in relation to it was brought to the Court in August 2011.[1] The respondent, the unsuccessful party in this Court, appealed to the Land Appeal Court, where it was successful.[2] The Land Appeal Court remitted the matter to this Court to determine compensation and any interest payable. The applicants sought leave to appeal to the Court of Appeal which refused to grant leave.[3]
  3. [8]
    The respondent claims that only disturbance remains to be determined under the Act while the applicants contend that the only head of compensation which has been assessed is the value of the land taken.
  4. [9]
    When the matter came before this Court in December 2012, the question which the parties put before it for decision was whether a change in zoning of the land prior to the acquisition, a change from Future Urban to Rural zoning, was a step in the acquisition process which should be disregarded so that the value of the land taken was not reduced by the re-zoning.[4] The valuers for the parties had considered the value of the loss on two bases, first as if zoned Future Urban before acquisition and, second, as zoned Rural before acquisition. The before and after method of valuation was used and the valuers agreed that the loss was $1,707,500 if zoned Future Urban and $275,000 if zoned Rural. This Court found that the higher figure was applicable, which finding was reversed on appeal.
  5. [10]
    The concept of before-and-after valuation methodology is used extensively in situations where compensation is to be assessed after the compulsory acquisition of part of a site, as was the case here.[5] Its use was introduced to the case by the applicants in their signed compensation claim documents sent to the respondent by their solicitors FG Forde Knapp and Johnson under cover of the solicitors’ letter dated 9 January 2007.[6] The particulars of the claim showed that it was for land, “Based on total land holding with amount assessed on a before-and-after methodology”. There was nothing claimed for improvements and under the category “other” there was “professional fees but excluding consequential losses including interest which are to be assessed”.[7]
  6. [11]
    Under cover of a letter dated 23 June 2008 signed by Kathryn Mahoney, revised claim forms were submitted. With a revised figure relating to land, the hand-printed particulars of claim were again stated to be “Based on total land holding with amount assessed on a before-and-after methodology”.[8]
  7. [12]
    In this Court’s decision in relation to compensation, which was reserved on 27 February 2013 when submissions were received and delivered on 20 March 2013, the Court, under the heading “Some agreement” referred to the agreement that had been reached that “the value of the land taken” was either $275,000 or $1,707,500 depending on the answer to the question concerning whether the zoning change ought to be disregarded. The claimants now agitate the view that they understood this to be limited to the loss in regard only to the land. This semantic argument is weakened by their own claims which have already been referred to which use the word land, introduce the before-and-after valuation basis and do not make the additional claims now urged for injurious affection and severance. Additionally, this Court’s consideration of its task was explained in the very next sentence to the one which the applicants draw attention to. The Court said:

“[5] The Court must ascertain the true value of what the applicants lost.”[9]

  1. [13]
    This Court, in its decision on 20 March 2013, said, at [48]:

“I am accordingly satisfied that compensation should be assessed …”

and ordered that “compensation is determined in the amount of …”. This language makes clear that what was meant was not limited in the way suggested by the applicants.

  1. [14]
    At the hearing on 10 December 2012, counsel for the applicants announced his appearance on a direct brief from Kathryn Mahoney, “who is a solicitor”.[10] Counsel for the respondent told the Court that Ms Mahoney accepted the values worked out by the valuers and, once the legal point was decided, saw no need for any further trial apart, possibly, from issues relating to disturbance or costs.[11] Counsel for the applicants supported that.[12] The Court was hearing the same position from both sides.[13]
  2. [15]
    When the matter came before the Court for review and directions on 13 August 2012, Ms Mahoney appeared for the applicants and told the court that the parties had meant to have the matter mediated on 7 August. “The matter was not mediated”[14] but the “parties have agreed to the loss of value figures under the two scenarios”.[15]
  3. [16]
    The joint report of the valuers[16] was prepared in July 2012. Mr McEvoy, for the applicants, and Mr Varitimos, for the respondent, make clear that they were valuing “the loss”.[17]

The general application by the applicants and their outline of argument

  1. [17]
    The general application filed on 3 September 2015 and the outline of argument filed on 3 November 2015 were objected to by Queen’s Counsel for the respondent. Ms Kathryn Mahoney signed the outline and appeared for the applicants. As already noted, she is a solicitor. The objection to paragraph 5 of the outline, a statement regarding a call option agreement stated to have been executed on 29 May 2009, was that there was simply no evidence about it and on that basis the objection is allowed. The objection to paragraph 18(c), which relates to the mediation which took place, and to paragraphs 46 to 54 of the outline, was on the basis that these did not relate to the general application which the applicants made. This objection is allowed on the basis upon which it was made. It seeks to introduce material beyond the scope of the general application, the presently relevant parts of which have already been set out.

The witnesses

Majella Pollard, solicitor

  1. [18]
    At the hearing of the general applications, witnesses were called so that they might be cross-examined. The solicitor for the respondent, Majella Mary Pollard, is a partner at Clayton Utz. The report on the joint meeting of valuers states that the applicants’ valuer proceeded on the basis that the area taken severed the land, leaving the eastern 2.714 ha with difficulties in access, which had a significant effect on the value, Ipswich City Council not having consented to a separate title for the eastern portion.[18] It was the case, however, that on 1 April 2011 approval was obtained to reconfigure the land into two lots.[19] Mr McEvoy had assessed the “after” value on the basis of a single title.[20]
  2. [19]
    In her affidavit filed on 15 October 2015,[21] Ms Pollard exhibited her contemporaneous notes of the mediation. These show that Mr McEvoy worked on the basis of one title.[22] The mediator’s certificate shows that Ms Mahoney, a solicitor, conducted the case for the claimants (applicants). Attending were Ms Mahoney, Mr J Mahoney, Mr S Richards – town planner and Mr J McAvoy (sic) – valuer. Attending for the respondent were Ms M Pollard and Ms K Duce, solicitors, Mr D Perkins – town planner, Mr S Varitmos (sic) – valuer and Mr R Litchke (sic), an officer of the respondent. The mediation certificate records that it started at 10am on 7 August 2012 and concluded at 3.15pm and that agreement was not reached.[23] The mediation ended without agreement but it was recorded that it was likely that agreement would be reached on “alternative valuations and that will leave only the San Sebastian issue to be argued (with supporting witnesses) at the Court hearing”.[24]
  3. [20]
    This affidavit discloses that from 12.05pm to 1.05pm the parties’ valuers discussed valuation issues and relevant comparable sales in front of all participants,[25] that on the basis of there being one title, which, as I have noted, was not then factually correct, there was considerable severance, which had a severe impact.[26] The valuers left the room at 1.05pm to meet separately. At 1.50pm Ms Mahoney and Mr Mahoney left the room to meet separately with their valuer. Mr Varitimos advised that the valuers had agreed on the amounts for each scenario and at 2.40pm the mediation resumed.[27] As already noted, it ended at 3.15pm.
  4. [21]
    The extent and depth of involvement of the two claimants in the mediation is clear, as is the significant time which they had with their valuer, including privately, which occupied considerable time, a period which Ms Mahoney attempted to minimise at the hearing.
  5. [22]
    On 8 August 2012 Ms Mahoney sent an e-mail to Ms Pollard arguing that there was a legal error in the valuation process and that the value of the retained land must be assessed on the basis of rural zoning in both scenarios.[28] This demonstrates her close attention to the process and an understanding of it sufficient to challenge the thinking of other participants and correct an error.
  6. [23]
    An exchange of e-mails by the valuers on 9 August 2012 led to them agreeing on the value for the two scenarios, at $275,000 or $1,707,500.[29]
  7. [24]
    Ms Pollard was cross-examined regarding non-compliance with s 48 of the Civil Proceedings Act 2011 which states the following:

48 Mediated resolution agreement

  1. (1)
    If, at a mediation, the parties agree on a resolution of their dispute or part of it, the agreement must be written down and signed by or for each party and by the mediator.
  1. (2)
    The agreement has effect as a compromise.
  1. [25]
    Since this agreement came after the conclusion of the mediation, as Ms Pollard pointed out, s 48 has no application.
  2. [26]
    Ms Pollard was directed to her letter of 3 April 2013 which, in the third paragraph, refers to “the value of the resumed land”. This was done in support of the applicants’ contentions. Ms Pollard explained that this was a shorthand form of expression that did not support such a conclusion. Indeed, it is only necessary to read the whole of the sentence to see that what remains is said to be disturbance costs. This is fully consistent with the respondent’s position. The weakness of these last two points urged on behalf of the applicants is noteworthy. The Court of Appeal, it was also pointed out, referred to the value of the resumed land.[30] This Court does not accept that the Court of Appeal proceeded upon the limited basis urged by the applicants. There is simply no support for such a conclusion. It relies on semantics only and is contrary to all the evidence.
  3. [27]
    The evidence of Ms Pollard was of no benefit at all to the applicants. The Court observed the demeanour of the witness and noted the consistency of her oral evidence both internally and with the exhibits in the case and is satisfied that she is a witness whose evidence is able to be relied upon.

John McEvoy

  1. [28]
    Mr McEvoy, the applicants’ valuer, was interposed for his convenience. He is now retired and appeared under subpoena. He was a registered valuer since 1983 and a specialist in resumption and residential development matters. He explained that at the mediation the valuers were a fair way apart. In his opinion a purchaser would pay something for the eastern severance, which he considered to be worth a nominal $25,000, if part of the remaining land, the western portion of which was more valuable and a house could be put on it. He explained how he arrived at the $275,000 in his e-mail of 29 June 2015.[31] He said that that amount was the loss in value. When taken to his e-mail of 24 June 2015 to Mr Varitimos in which he refers to “your threat” he said that Mr Varitimos did not stand over him at the mediation. The “threat” appears to be Mr Varitimos’ e-mail of 24 June 2015.[32] The e-mails speak for themselves and relate to Mr Varitimos’ opinion that the eastern severance has commercial development potential and a statement that Mr McEvoy will be subpoenaed by the respondent unless he gives a statement confirming that he considered severance loss when assessing compensation.
  2. [29]
    Mr McEvoy was closely observed by the Court when he gave evidence. He was calm in demeanour and gave responsive answers to questions. He assured the Court that the presence of Mr Varitimos in Court would not be a difficulty for him and this Court accepts that it was not. He was clearly unaffected by that presence and his evidence confirmed that in his dealings with the undoubtedly robust Mr Varitimos, his own professionalism was undiminished. His evidence-in-chief did not assist the applicants.
  3. [30]
    When cross-examined by Queen’s Counsel for the respondent, Mr McEvoy was taken to the applicants’ originating application filed on 29 February 2012.[33] In their annexure “A” to it, at page 20 thereof, the following paragraphs appear and Mr McEvoy was taken to them:

“171. The ‘before and after’ method of valuation is used to determine the loss in value of the original land before acquisition and the remaining land after acquisition with due consideration of all the elements of damage and benefit relating to access to the western remnant portion of the site, severance and injurious affection.

  1. The implications of resumption make it difficult to differentiate between Loss of Value and Injurious Affection and for this reason the heads of claim are particularised under Loss in Value.”
  1. [31]
    Mr McEvoy confirmed that he agreed with what was written in those two paragraphs. Taken to the report on the joint meeting of valuers, he was directed to his statement there that the fact that the land was severed by the taking and a separate title has not been consented to has a significant effect on the value.[34] He confirmed this.
  2. [32]
    When taken to exhibit 4, Mr McEvoy confirmed that Mr Varitimos’ after-value figure of $740,000 was incorrect and that the correct figure of $230,000 was shown in exhibit 3. Ms Mahoney had informed Mr McEvoy that once the point which she had raised in relation to this error was addressed:

“she is happy to agree with loss in value numbers in both scenarios to expedite the process”.[35]

The assessed loss for scenario 2 was agreed the next day, 9 August 2012, at $1,707,500. Mr McEvoy said that he had a telephone conversation with Ms Mahoney about the figures in question.

  1. [33]
    Mr McEvoy stated that his ill-health commenced in November 2014. The Court accepts the evidence of Mr McEvoy who presented as a competent and experienced professional who was frank with and helpful to the Court.

Russell David Leschke

  1. [34]
    The respondent called Mr Russell David Leschke, an area manager in Property Acquisitions and Disposals, Department of Transport and Main Roads. Mr Leschke confirmed his affidavit and was cross-examined. The Court observed Mr Leschke carefully when he gave evidence and found him to be responsive to questions and to appear open and forthright in his answers. His evidence was helpful to the Court and he showed impressive recall as well as objectivity. The Court accepts Mr Leschke as a witness of truth.
  2. [35]
    Mr Leschke pointed out that the before-and-after method was consistently used by the applicants in this case to address compensation.[36]
  3. [36]
    He was taken to the applicants’ originating application filed on 29 February 2012, particularly to paragraphs 171 and 172 which refer to the before-and-after method of valuation, where there is reference to “due consideration of all the elements of damage and benefit”, including “severance and injurious affection.[37]
  4. [37]
    Mr Leschke referred to an offer made to the applicants in 2008. It was of $480,000, including disturbance and interest. He said that it is not unusual for the amount offered first to be the highest offer, as doubts which may favour the dispossessed owner may later be resolved such that compensation is lower. He was of the view that the before-and-after method is a good and fair measure of loss and that it can be very difficult to break compensation up into categories.

Savos Varitimos

  1. [38]
    Mr Savos Varitimos, registered valuer, was also called by the respondent. He told the Court that he had inspected all of the sales that he and Mr McEvoy considered. He had little regard to several sales used by Mr McEvoy which he found to be improved. Mr Varitimos pointed out that the assumption used in assessing compensation, that there was a single title in the after case, resulted in there being more compensation payable. The ability to obtain two titles would increase the value in the after case. If compensation was assessed on the basis that there were two titles in the after case, then the compensation would be $75,000, in his opinion. He said that injurious affection and severance were not separated out and that $275,000 was for all heads of compensation. In his affidavit of 17 June 2015 he stated that he telephoned Mr McEvoy on 13 May 2015 and during that conversation Mr McEvoy acknowledged that he had dealt with severance loss in arriving at the agreed assessment of $275,000.[38] Mr Varitimos was now of the view that the $480,000 offer was excessive.
  2. [39]
    The Court observed Mr Varitimos with care when he gave evidence. Mr Varitimos impressed the Court as an efficient professional with a clear recollection of the facts. The Court accepts Mr Varitimos as a witness of truth.
  3. [40]
    In regard to each of the witnesses whose evidence has been considered so far, in no case did their evidence provide any support for the case advanced on behalf of the applicants.

Kathryn Mary Mahoney

  1. [41]
    Queen’s Counsel for the respondent required Ms Mahoney for cross-examination. Ms Mahoney was directed to the e-mail from Mr McEvoy to Mr Varitimos on 11 May 2015. It relevantly states that:

“Ms Mahoney advised the issue for her is not that Severance (sic) was addressed, but rather it was not addressed appropriately.”[39]

  1. [42]
    Ms Mahoney agreed that she prepared the originating application filed on 29 February 2012. She prepared some of Annexure A to it and read it before filing it. She was also involved in preparing Annexure B and read the points of claim before it was filed. She was taken to page 20, paragraphs 171 and 172 of the points of claim.[40] She had pointed out, after the mediation, that Mr McEvoy had used the incorrect value figure that has already been discussed and had ensured that this was corrected.
  2. [43]
    It was pointed out that she had not raised the present issues until after the decision of the Court of Appeal in December 2014. Her attention was also drawn to the transcript of 13 August 2012 where she told this Court:[41]

“APPLICANT K. MAHONEY:  Your Honour, the parties meant to have the matter mediated on the 7th August. The matter was not mediated, and so at this point, what has happened – we have – parties have agreed to the loss of value figures under the two scenarios, that’s the rural values, all the values under the San Sebastian principle. Both values have been settled, but the important point, that is, the application of the San Sebastian principle still in issue.”

Ms Mahoney maintained that injurious affection and severance were still to be addressed. She agreed that she was present at the hearing in the Land Court. Queen’s Counsel for the respondent directly put to Ms Mahoney that she was not telling the truth. She disputed this and it was further put to her that she first raised the present claims in February 2015, after she was aware of the decision of the Court of Appeal.

  1. [44]
    When Ms Mahoney was directed to the evidence in her cross-examination, she attempted to explain away her position, as recorded, in favour of the position now adopted, on the basis of lack of understanding of the subject matter, while also asserting that she had been misled by the respondent’s solicitors. However, she was able to promptly correct the valuation error which surfaced at the mediation. This is inconsistent with her assertion that the mediation did not properly engage her, such that she did not correctly understand it. She also sought to portray the mediation as brief when the record is to the contrary. The evidence in relation to the valuation exercise agreed upon is clear and the Court must reject Ms Mahoney’s evidence to the contrary.

Discussion

  1. [45]
    The letter dated 11 April 2013 from Ms Pollard to Ms Mahoney confirms that the claim then in issue for the cost of reconfiguring the remaining land into two lots would not be paid by the respondent and that, if the valuers had proceeded on the basis of two lots, then the compensation payable would have been $200,000 less. This letter does not offer any support for the applicants’ contentions now made, that only land value was considered, as, like all of the evidence, it must be understood in its context, particularly in the light of the before-and-after method employed, which is what the applicants wanted.
  2. [46]
    As has already been discussed, the applicants’ reference to s 48 of the Civil Proceedings Act 2011 does nothing to assist them. It applies where there was an agreement at a mediation. Here the agreement was reached after the mediation had concluded without that agreement, which was made later. Rule 329 of the Uniform Civil Procedure Rules 1999 applies to agreements reached at mediation so has no application to the present matter.
  3. [47]
    The evidence simply does not support that the figures agreed were for compensation limited to the land aspect only. Rather, it is all the other way. The parties have conducted litigation on a basis which was clearly and unequivocally chosen and which has been resolved by the Courts, up to and including the Court of Appeal. The method used by the parties was agreed to and it is not now open to one party to seek to depart from it. The applicants did not, until after the decision of the Court of Appeal, contend for some other method.[42]
  4. [48]
    The applicants’ submissions criticising the mediation are unhelpful and irrelevant since the mediation did not resolve the dispute. The attempt by Ms Mahoney to convey that she was confused and ill-informed about the mediation is contradicted by her presence there and her ability to correct the valuation error afterwards. The submission that the agreement reached after the mediation was a mediated resolution agreement is contradicted by the mediator’s certificate, which shows that the mediation had concluded without agreement.[43]
  5. [49]
    The dispute which, by their general application, the applicants seek resolution of was not one which existed up until the decision of the Court of Appeal.

Conclusion

  1. [50]
    For the reasons that have been given, the Court accepts the submissions on behalf of the respondent and does not accept the submissions made on behalf of the applicants.

Orders

  1. On or about 10 August 2012 the applicants and the respondent agreed that, in the events which have happened, the amount of compensation under the Acquisition of Land Act 1967, save for the item of disturbance, payable to the applicants is $275,000.
  1. Compensation is determined in the amount of $275,000.
  1. The applicants’ general application filed on 3 September 2015 is dismissed.
  1. Written submissions in support of an application for costs by the respondent in relation to the hearing in 2012, and the hearing of these general applications, are to be filed and served within 15 business days, and any written submissions in reply by the applicants are to be filed and served within 10 business days of receipt of the respondent’s written submissions.
  1. The parties are to reach agreement on orders relating to disturbance items and interest within 25 business days of the date of publication of these reasons.
  1. The proceeding is adjourned for review and directions on a date to be set by the Court.

WA ISDALE

MEMBER OF THE LAND COURT

Footnotes

[1] Mahoney & Ors v Chief Executive, Department of Transport and Main Roads (No. 3) [2013] QLC 11.

[2] Department of Transport and Main Roads v Mahoney [2014] QLAC 1.

[3] Mahoney & Ors v Chief Executive, Department of Transport and Main Roads [2014] QCA 356.

[4] Housing Commission of New South Wales v San Sebastian Pty Ltd (1978) 140 CLR 196.

[5] The Law Affecting Valuation of Land in Australia, 5th edn 2014, The Federation Press, Alan A Hyam p 164.

[6]  Exhibit 1 Tab 8 [14] RDL-2 p 6.

[7]  Exhibit 1 Tab 8 RDL-2 p 7, 10.

[8]  Exhibit 1 Tab 8 [15] RDL-3 p 13, 14, 16.

[9]  Exhibit 2 Tab 28 [4], [5].

[10]  Exhibit 2 Tab 25 1-2 L 7.

[11]  Exhibit 2 Tab 25 1-3 L 10-53.

[12]  Exhibit 2 Tab 25 1-4 L 14-23.

[13]  Exhibit 2 Tab 25 1-4 L 35-38.

[14]  Exhibit 2 Tab 24 1-2 L 26-31.

[15]  Exhibit 2 Tab 24 1-2 L 28-29.

[16]  Exhibit 1 Tab 3 p 22-37.

[17]  Exhibit 1 Tab 3 p 31 2.1.4 Loss.

[18]  Exhibit 1 Tab 3 p 24.

[19]  Exhibit 1 Tab 3 p 25(f).

[20]  Exhibit 1 Tab 3 p 31 2.1.3.

[21]  Exhibit 1 Tab 5.

[22]  Exhibit 1 Tab 5 p 8.

[23]  Exhibit 1 Tab 5 p 18.

[24]  Exhibit 1 Tab 5 p 18.

[25]  Exhibit 1 Tab 5 p 2.

[26]  Exhibit 1 Tab 5 p 2.

[27]  Exhibit 1 Tab 5 p 2.

[28]  Exhibit 1 Tab 3 p 41-42.

[29]  Exhibit 1 Tab 13 p 9.

[30]  Exhibit 2 Tab 35 [9].

[31]  Exhibit 1 Tab 13 p 25.

[32]  Exhibit 1 Tab 13 p 23.

[33]  Exhibit 2 Tab 21.

[34]  Exhibit 1 Tab 3 p 24 JMC states that:  (c).

[35]  Exhibit 1 Tab 3 p 40 e-mail 8 August 2012.

[36]  Exhibit 1 Tab 8 p 7, 10, 14, 16.

[37]  Exhibit 2 Tab 21 p 20.

[38]  Exhibit 1 Tab 11 para 11(a).

[39]  Exhibit 1 Tab 11 p 5.

[40]  Exhibit 2 Tab 21 p 20 paras 171, 172.

[41]  Exhibit 2 Tab 24 1-2 L 26-31.

[42] Chief Executive, Department of Transport and Main Roads v Cidneo Pty Ltd [2015] QCA 96 [57], [58], [60].

[43]  Exhibit 1 Tab 5 p 18.

Close

Editorial Notes

  • Published Case Name:

    Mahoney & Ors v Chief Executive, Department of Transport and Main Roads (No. 4)

  • Shortened Case Name:

    Mahoney v Chief Executive, Department of Transport and Main Roads (No. 4)

  • MNC:

    [2016] QLC 18

  • Court:

    QLC

  • Judge(s):

    Member Isdale

  • Date:

    09 Mar 2016

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
Chief Executive, Department of Transport and Main Roads v Cidneo Pty Ltd [2015] QCA 96
2 citations
Jump To
Cite 1 - [2015] QCA 96
Cite 2 - [2015] QCA 96
Department of Transport and Main Roads v Mahoney [2014] QLAC 1
2 citations
Jump To
Cite 1 - [2014] QLAC 1
Cite 2 - [2014] QLAC 1
Housing Commission of NSW v San Sebastian Pty Ltd (1978) 140 CLR 196
2 citations
Jump To
Cite 1 - (1978) 140 CLR 196
Cite 2 - (1978) 140 CLR 196
Mahoney v Chief Executive, Department of Transport and Main Roads [2014] QCA 356
2 citations
Jump To
Cite 1 - [2014] QCA 356
Cite 2 - [2014] QCA 356
Mahoney v Chief Executive, Department of Transport and Main Roads (No. 3) [2013] QLC 11
2 citations
Jump To
Cite 1 - [2013] QLC 11
Cite 2 - [2013] QLC 11

Cases Citing

Case NameFull CitationFrequency
Mahoney v Chief Executive, Department of Transport and Main Roads (No. 5) [2016] QLC 365 citations
1

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