The Trust Company Limited v Valuer-General
[2017] QLC 29
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- The Trust Company Limited v Valuer-General[2017] QLC 29
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The Trust Company Limited v Valuer-General[2017] QLC 29
The Trust Company Limited v Valuer-General[2017] QLC 29
LAND COURT OF QUEENSLAND
CITATION: | The Trust Company Limited v Valuer-General [2017] QLC 29 |
PARTIES: | The Trust Company Limited (appellant) |
| v |
| Valuer-General (respondent) |
FILE NO/s: | LVA580-15 |
DIVISION: | General division |
PROCEEDING: | Application for costs |
DELIVERED ON: | 16 June 2017 |
DELIVERED AT: | Brisbane |
HEARD ON: | Submissions closed 8 August 2016 |
HEARD AT: | Heard on the papers |
MEMBER: | WL Cochrane |
ORDER/S: | The respondent’s application for costs is refused. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – DISCONTINUANCE OF PROCEEDINGS – where proceedings are discontinued after a joint expert conference – where parties bear their own costs in the usual course – whether the proceedings were frivolous or vexatious – where the costs should be awarded to the respondent. Land Court Act 2000, s 7, s 34 Land Court Rules 2000, r 18, r 24B Land Valuation Act 2010, s 171 Uniform Civil Procedure Rules 1999, r 5 Chief Executive, Department of Natural Resources and Mines v Sabina Three Gorges Corporation Ltd [2001] QLC 26 Moreton Bay Regional Council v Mekpine Pty Ltd & Anor (No. 2) [2014] QLAC 5 H.A. Bachrach (Nom) Pty Ltd v Valuer-General [2016] QLC 66 Permanent Trustee Australia Ltd as Trustee and Anor v Department of Natural Resources and Mines [2002] QLC 93 |
APPEARANCES: | N Murphy, as agent – Savills Pty Ltd for the appellant B Cramer, Senior Lawyer, Crown Law for the respondent |
- [1]The issue for determination in this decision is whether the respondent Valuer-General ought have an order for the standard basis costs made in its favour following the appellant filing a notice of discontinuance which notice was not consented to by the respondent.
- [2]The respondent submits that the appellants conduct in the appeal has:
“(a) forced the respondent to unreasonable, unnecessarily and unjustified trouble (sic) to prepare and respond in the proceeding’s and
(b) resulted in the inappropriate and inefficient use of the Court resources;
(c) which could have been avoided had the appellant withdrawn the appeal at the conclusion of the court supervised preliminary conference.”
- [3]Each party had the opportunity to deliver submissions in writing and any affidavit material upon which they chose to rely.
- [4]The respondent delivered to the Court a set of submissions on costs together with an affidavit of Ben Cramer the lawyer with responsibility for the conduct of the matter for the respondent and a set of submissions in reply.
- [5]For its part the appellant delivered a set of submissions.
- [6]In its submissions the respondent points out that it relies upon the discretionary powers of the Court to award costs pursuant to s 34 of the Land Court Act 2000, r 18 of the Land Court Rules 2000 and s 171 of the Land Valuation Act 2010.
- [7]Although it does not emerge early in the respondent’s submissions in support of its application for costs, later in its submissions it becomes clear that the respondent relies upon an argument that the conduct of the appellant in bringing the appeal, participating in interlocutory steps and then seeking to withdraw the appeal constituted it harming acted either in a frivolous or in a vexatious matter. Frivolous proceedings and vexatious proceedings are not the same thing. A proceeding is frivolous if it’s brought without any real prospect of success where as a proceeding is vexatious if it is brought with the purpose of embarrassing or prejudicing another party to the proceeding.
- [8]There is no material before me which would satisfy me that the appeal being against a Valuer-General’s valuation was frivolous that is to say doomed to failure before it was even started.
- [9]Nor is there any material before me which would satisfy me that the bringing of this appeal was in some way intended to prejudice or embarrass the respondent Valuer-General and so vexatious.
- [10]The temporal elements of the conduct of this case can be reduced to a number of relevant dates:
- (a)The Notice of Appeal was filed in this court on the 7 December 2015;
- (b)Just over two months later on 11 March 2016 the parties attended a preliminary conference before the Judicial Registrar but were unable to reach a resolution;
- (c)A month later on 14 April 2016 the matter was listed for a directions hearing at which orders for interlocutory steps were made by myself;
- (d)Within less than a month after that date 6 May 2016 the parties exchanged lists of documents and on the 13 May 2016 the appellant served its particulars of grounds of appeal;
- (e)On 27 May 2016 the respondent filed and served its statement of facts, matters and contentions;
- (f)The names of respective expert witnesses were exchanged between the 2 and 8 of June 2016 and the matter was listed for further review before me on 10 June 2016;
- (g)A consent order was made requiring, inter alia, a meeting of experts to occur by 24 June 2016 which was to produce a joint report by 8 July 2016;
- (h)A meeting of experts was held on 23 June 2016;
- (i)On 29 June 2016 the appellant forwarded a notice of withdrawal of discontinuance to the respondent and sought the respondents consent to the discontinuance.
- [11]The respondent did not consent to the proposed discontinuance save that it would do so on the basis that the appellant pay its costs of the proceeding to the date of discontinuance. That proposition was not accepted by the appellant and accordingly on 21 July 2016 I made orders regarding the application for costs including the exchange of the submissions to which I refer in this decision.
- [12]The basic provision with respect to this Court’s power to award costs is set out in s 34 of the Land Court Act 2000 which provides:
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.
- [13]That paragraph is supported by r 18 of the Land Court Rules 2000 which provides:
18 Costs
If an applicant or appellant discontinues or withdraws, the court may order the applicant or appellant to pay—
- (a)the costs of the party to whom the discontinuance or withdrawal relates up to the date of the discontinuance or withdrawal, if the party has not consented to the discontinuance or withdrawal; and
- (b)the costs of another party or parties caused by the discontinuance or withdrawal.
- [14]The Land Court Rules 2000 themselves are subordinate legislation which must, accordingly, be construed having regard to the parent act the Land Court Act 2000.
- [15]On numerous occasions it has been explained by this Court that the power to award costs pursuant to s 34 of the Land Court Act 2000 is an unfettered discretion but one which must be exercised judicially in so far as the reasons for an award of costs must be explained and substantiated.[1]
- [16]Power to award costs is not a power to punish. It is compensatory in so far as it seeks to award a successful party some cover against the expenses to which they have been put by reason of legal proceeding.
- [17]The engagement of an expert and the attendance by that expert at a meeting with an expert engaged by the opposing party seems to me to be evidence of serious commitment to the appeal.
- [18]One can only speculate about what happened on the four business days between 23 June and 29 June at which time the appellant forwarded the notice of discontinuance as required by r 15 and r 16 of the Land Court Rules 2000.
- [19]On any fair view of the matter the decision to discontinue was promptly taken i.e. within four business days of the meeting of the experts.
- [20]It is difficult to criticise a party who having embarked upon a legal proceeding and engaged an appropriate expert who then, upon proper consideration of its position and presumably better informed by virtue of the outcome of the joint meeting, decides to discontinue the proceeding.
- [21]As the respondent fairly points out in its submissions in dealing with applications for costs made pursuant to the predecessor statute to the LVA namely the Valuation of Land Act the Land Court and the Land Appeal Court have generally adopted a restrained attitude, emphasising the desirability of easy access to the Land Court to air grievances and to have valuations reviewed.
- [22]The respondent points to a number of cases in which it has been said that such access should be available without fear of costs being awarded to either party except in special cases.[2]
- [23]Something must be mentioned about the position of the Valuer-General who has a statutory obligation to respond to appeals against valuations issued by it.
- [24]The respondent also however draws the Court’s attention to two decisions namely Permanent Trustee Australia Ltd as Trustee and Anor v Department of Natural Resources and Mines[3] and Chief Executive, Department of Natural Resources and Mines v Sabina Three Gorges Corporation Ltd[4]. In each of those cases a costs order was made.
- [25]The Sabina Three Gorges case turned, for the decision to award costs, on the conduct of an appellant where it had failed to comply with orders of the Court and where its withdrawal of some appeals was, in part, driven by the failure of a strategy which the appellant had adopted in seeking to run a “test case”.
- [26]The facts behind the Sabina Three Gorges case and the consequent decision are of little guidance in the present case where there are no allegations of failures to comply with the orders of the Courts.
- [27]In the Permanent Trustee Australia case the matter had been set down for hearing and adjourned on several occasions, further interlocutory orders had been made in the course of the adjournment periods and finally a notice of discontinuance without explanation was filed only ten days prior to the hearing date in the circumstances of an appeal which had been lodged on 8 August 2000 and withdrawn some two years later.
- [28]As with Sabina Three Gorges I do not find that case of any utility to me in determining the costs application in this case.
- [29]I do not regard the conduct of the appellant withdrawing its appeal so promptly after the meeting between the experts as unreasonable and certainly it does not bear the hallmarks of frivolity or vexatiousness.
- [30]In all of the circumstances I am satisfied it is appropriate to dismiss the application for costs by the respondent and I so order.
ORDER
The respondent’s application for costs is refused.
WL COCHRANE
MEMBER OF THE LAND COURT