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

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

LAND COURT OF QUEENSLAND

CITATION:

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

PARTIES:

Genamson Holdings Pty Ltd

ACN 053 174 271

(applicant)

v

Moreton Bay Regional Council

(respondent)

FILE NO:

AQL037-23

PROCEEDING:

Determination of preliminary question 

DELIVERED ON:

22 November 2024

DELIVERED AT:

Brisbane

HEARD ON:

5 August 2024

HEARD AT:

Brisbane

MEMBER:

JR McNamara

ORDER:

The answer to the preliminary question is ‘Yes’.

CATCHWORDS:

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION – RIGHT TO COMPENSATION – where the applicant has applied for the determination of a preliminary question – where the preliminary question concerns the statutory construction of section 16(1A) of the Acquisition of Land Act 1967 (Qld) (ALA) – where the question reflects the respondent’s proffered construction of section 16(1A) – compensation where resumption is discontinued – whether costs and expenses must be reasonably incurred and themselves reasonable – whether costs and expenses must be incurred in connection with or in preparation of a claim for compensation – whether costs and expenses includes financial losses or losses or profit

Acquisition of Land Act 1967 (Qld) ss 16(1A), 17(4), 20(5)

Colin F Stanfield v The Brisbane City Council [1989] QLC 7

Emanuel (No 14) Pty Ltd v Council of the Shire of Caboolture (1994-1995) 15 QCLR 140

Harvey v Crawley Development Corporation [1957] 1 All ER 504

Merivale Motel Investments Pty Ltd v Brisbane Exposition and South Bank Redevelopment Authority (1985) 10 QLCR 175

Merivale Motel Investments Pty Ltd v The Brisbane Exposition and South Bank Redevelopment Authority [1985] QLAC 11

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

APPEARANCES:

D O'Brien KC, with W Macintosh (instructed by HWL Ebsworth) for the applicant

DR Gore KC, with D Quayle (instructed by In-house legal, Moreton Bay Regional Council) for the respondent

Background

  1. [1]
    Section 16 of the Acquisition of Land Act 1967 (Qld) (ALA) has been in its current form since at least 1994.  Changes from its original form were carried out under the Reprints Act 1992 permitting editorial changes which included renumbering. The original four paragraphs of s 16(1), now appear as s 16(1), (1A), (1B) and (1C).  There are no differences of substance relevant to this matter between the original and the current versions of s 16.  The parties agree that the change in the introductory term from “Provided” to “However” in s 16(1C) is of no consequence.  
  1. [2]
    The full text of s 16(1), (1A), (1B) and (1C) is as follows:
  1. 16Discontinuance of resumption before publication of gazette resumption notice
  1. (1)
    A constructing authority may at any time before the publication of the gazette resumption notice, serve upon every person who has been served with a notice of intention to resume a further notice stating that the constructing authority is discontinuing the resumption of land concerned.
  2. (1A)
    Service of the further notice shall discontinue the resumption concerned and no person shall have any claim for compensation or other right or remedy whatsoever against the constructing authority for any loss or damage alleged to have been occasioned (directly or indirectly) by the service of the notice of intention to resume or the discontinuance of the resumption except a claim for compensation for costs and expenses incurred by the person who was served with the notice and any actual damage done to the land concerned by the constructing authority.
  3. (1B)
    The constructing authority and the claimant may agree upon the amount of the compensation to be paid under subsection (1A) or, upon reference of either of them, such amount may be determined by the Land Court.
  4. (1C)
    However, the constructing authority may have such costs and expenses taxed by the proper officer of the Supreme Court under the rules of that court and no person shall be entitled to compensation in excess of the value of his or her estate or interest in the land.
  5. (2)
    For the purposes of this section, notwithstanding that notice under this section has not been served, the constructing authority shall be deemed to discontinue a resumption if an application under s 9(1) has not been made within the time stated in section 9(2).
  1. [3]
    As summarised in my 9 May 2024 decision in Genamson v Moreton Bay Regional Council [2024] QLC 8 (‘Genamson (No 1)’):[1]
  1. 1.the applicant claims compensation from the respondent pursuant to s 16(1A) of the ALA for costs and expenses that it claims it has incurred as a direct and ordinary consequence of the discontinuance by the respondent of two notices of intention to resume that were issued, and later discontinued, in respect of land owned by the applicant;
  2. 2.the “costs and expenses” for which compensation is claimed include a range of costs and expenses in addition to legal, valuation and other professional fees which the applicant submits are over and above those that would have been incurred had the two notices of intention had not been issued; and
  3. 3.the claimed costs and expenses include a claim for increased development application costs, increased tenancy costs and losses, lost holding costs, and legal and other costs.
  1. [4]
    The applicant applied to the court for the separate and preliminary determination of two questions regarding the proper construction of s 16(1A).
  1. [5]
    Following a hearing of that application I ordered that the application for determination of question one (only) be allowed. The question is as follows:
  1. 1.On the proper construction of s 16(1A) of the Acquisition of Land Act 1967 (Qld) (ALA), is a claim for compensation pursuant to that provision limited to:
  1. (a)
    out of pocket costs and expenses in the nature of legal, valuation and other professional fees:
  1. (i)
    reasonably incurred;
  2. (ii)
    themselves reasonable; and which are incurred in connection with the consideration of and/or in the preparation of a claim for compensation following the resumption of land foreshadowed by the notice of intention to resume; and
  1. (b)
    any actual damage done to the land by the constructing authority.
  1. [6]
    The applicant argues the question should be answered: no. The respondent says the question should be answered: yes.
  1. [7]
    The applicant says the scope for recompense under s 16(1A) is not ‘unlimited’ but that it is broader than what the respondent says. The respondent argues the scope is narrow (as described in the question).
  1. [8]
    For the reasons that follow the question is answered ‘yes’.

The key arguments 

  1. [9]
    The parties’ submissions predominantly concern the text in paragraph 1(a) of the question: “out of pocket costs and expenses in the nature of legal, valuation and other professional fees”.
  1. [10]
    Paragraphs 1(a)(i) and (ii) of the question require that the costs and expenses claimed must be reasonably incurred and themselves reasonable. These requirements are not disputed. A conferral of a right to relief must be limited by a requirement for reasonableness. Allowing compensation for unreasonably incurred or themselves unreasonable costs and expenses is not harmonious with section 16(1A) or the ALA broadly, as demonstrated by the use of ‘reasonably’ throughout section 20(5).
  1. [11]
    Paragraph 1(b) of the question reflects the actual wording of section 16(1A) and is not disputed by the parties.
  1. [12]
    The extent of the right to compensation under s 16 has not been the subject of judicial consideration. There is no authority that answers the question. Traditional principles of statutory construction apply.
  1. [13]
    It is well-established that the starting point for statutory interpretation is to consider the text but at the same time regard must be had to the provision’s context and purpose. If the context and purpose appear inconsistent with the ordinary meaning of the provision, then the ordinary meaning must be rejected.
  1. [14]
    The parties’ key arguments are as follows.
  1. [15]
    The applicant argues that the respondent’s construction of s 16(1A) cannot be accepted because costs are not restricted to legal and professional costs. Costs can include financial costs and losses of profits.
  1. [16]
    More specifically, the applicant says:
  1. 1.An affirmative answer to the question would impose three limits on compensation which are not expressly found in s 16(1A). 
  2. 2.While there is no wording in s 16(1A) which would suggest that there is any restriction on the words “costs and expenses” there are nevertheless some restrictions.
  3. 3.The word “costs” is deployed with the word “expenses” indicating something more than out of pocket expenses in the nature of legal, valuation and other professional costs - it can include “financial losses of any variety”.
  4. 4.Nothing in the balance of s 16 supports a narrow construction.
  5. 5.The ordinary meaning of “costs and expenses” sits comfortably with the rest of the ALA.
  6. 6.Any “costs and expenses” claimed under s 16(1A) are “disturbance” items to which the common law test for disturbance continues to apply.
  7. 7.The respondent’s construction is inconsistent with the policy intent of the ALA.
  1. [17]
    The respondent says that there are various indicators that the scope of recompense under s 16(1A) is intended to be very narrow:
  1. 1.The ordinary language – the primary purpose is to deny a claim, and the denial in s 16(1A) is widely expressed.
  2. 2.The exception in s 16(1A) is narrowly expressed.
  3. 3.An indicator of narrowness is found in s 16(1C) which allows the constructing authority to “have such costs and expenses taxed by the proper officer of the Supreme Court …”.
  4. 4.The use of the term “whatsoever” in s 16(1A) has the effect of excluding the application of the ejusdem generis rule.
  5. 5.The narrowness of s 16(1A) is affirmed by the terms of s 17(4).  S 17(4) provides for “loss or damage” and “costs or expenses” in the situation where the taking is revoked before compensation is determined.
  6. 6.S 16(1A) should be contrasted with s 20(5) (costs attributable to disturbance for purposes of s 20(1)(b)) which indicates that s 16(1A) is considerably narrower. 

The terms of s 16(1A)

  1. [18]
    The respondent says the exception in s 16(1A) is narrowly expressed. That is, compensation is for “costs and expenses” not loss or damage; must be “incurred by the person who was served …” not by any person; and must be for “any actual damage done to the land concerned” … not potential loss or damage.
  1. [19]
    The applicant says the word “costs” as deployed with the word “expenses” indicates something more than out of pocket expenses in the nature of legal, valuation and other professional costs. They say it can include financial losses of any variety and the meaning of costs should be understood as inclusive of “loss or penalty” on the basis that:
  1. 1.the Macquarie Dictionary defines cost as:
  1. “1. The price paid to acquire, produce, accomplish or maintain anything: the cost of a new car is very high.
  2. 2.A sacrifice, loss, or penalty: it is more important to have meaningful relationships with other human beings than it is to ‘get ahead’ at the cost of such relationships.”
  1. 2.in Roads and Maritime Services v United Petroleum Pty Ltd (2019) 99 NSWLR 279 (‘United Petroleum’), the New South Wales Court of Appeal said (emphasis added):

“the loss of a stream of profits from a business forced to close down because the land on which the business is conducted has been compulsorily acquired can plausibly be described as a “financial cost”… the word “costs” is not necessarily restricted to actual expenditure or liabilities but can include unrealised losses and loss of profits. Similarly as a matter of English usage a person suffering such losses can be said to have “incurred” them.”

  1. 3.the word costs is used alongside expenses which suggests that costs and expenses have different meanings. The Macquarie Dictionary defines expenses as “charges incurred in the execution of an undertaking or commission” and “money paid as reimbursement for such charges”. Therefore, expenses refers to money actually expended on particular charges (such as legal, valuation, or other professional fees) and costs refers to broader matters, including unrealised losses and loss of profits.
  2. 4.and that this view is supported by Member Trickett (as he was then) in Emanuel (No 14) Pty Ltd v Council of the Shire of Caboolture (1994-1995) 15 QCLR 140 (‘Emanuel’) who said, in relation to the scope of section 16 (emphasis added):

“A landowner may well have incurred costs and expenses between the notice of intention to resume and the discontinuance, not only in seeking professional advice, but for other reasons. A sale may have been aborted, crops not planted, improvements not made, land values may have fallen, and so on. Some or all of these circumstances may give rise to a successful claim under section 16(1).”

  1. [20]
    Whether costs and expenses includes loss cannot be resolved by reliance on the Macquarie Dictionary definition of costs. Such definitions can only be employed to the extent that they are supported by the plain words of a statute.
  1. [21]
    I accept that the paired conjunction “costs and expenses” suggests that the words are linked but hold different meanings. However, this does not lead me to conclude that costs includes losses.
  1. [22]
    United Petroleum concerned the scope of s 59(f) (now s 59(1)(f)) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW).  Section 59 in Part 3 Division 4 concerns the determination of compensation where an acquisition proceeds.  Section 59 is headed “Loss attributable to disturbance”.  Paragraphs (a) to (e) refer to specifically identified costs or fees while para (f) refers to “any other financial costs reasonably incurred (or that might be reasonably incurred) …”.  Section 59 does not apply in the case of an abandoned acquisition. 
  1. [23]
    The passage referenced by the applicant to the effect that costs can include unrealised losses and loss of profits, is found in the judgement of Sackville AJA at p 302. However, it is prefaced by the words “There is little doubt that if s 59(f) is read in isolation it is capable of a wide application”. In the paragraph following the quoted passage his Honour says: “However, s 59(f) of the Just Terms Act is not to be read in isolation”. It was noted that none of the five paragraphs preceding s 59(f) contemplated compensation for loss of income or profits derived from the acquired land and concluded it was unlikely that parliament intended the same expression to be given a different meaning in different paragraphs of the one section. It was concluded that s 59(f) cannot be construed to provide compensation for loss of income or profits. It is subject to the same limitation as to subject matter as the sections which precede it.
  1. [24]
    Basten JA noted that there had been a tendency in the discussion of the scope of s 59(f) to read the phrase in isolation and give it the broadest possible definition consistent with dictionary definitions of the individual words. He said that approach disregards four different forms of constraint imposed by the context and structure of the section. Preston CJ noted that the concept of “financial costs” in s 59(f), read alone, is capable of bearing a wide meaning.
  1. [25]
    I do not consider United Petroleum to be of assistance to the applicant. Section 59(f) expressly provides for financial costs as a category of loss attributed to disturbance of land.
  1. [26]
    Section 16(1A) does not draw a similar connection between ‘costs and expenses’ and loss; my view is that it does the opposite by denying compensation for loss and damage with an exception for costs and expenses.
  1. [27]
    The applicant says the language of s 16(1A) also provides a limit to any claim for compensation as such a claim may only be for loss or damage alleged to have been occasioned (directly or indirectly) by either service of the notice of intention to resume or the discontinuance of the resumption. In other words, compensation for loss or damage can only be claimed if it is caused by the notice or the discontinuance.
  1. [28]
    The section actually says that no person shall have any claim for compensation … whatsoever … for any loss or damage alleged to have been occasioned … “by the service of the notice of intention to resume or the discontinuance of the resumption … except a claim for compensation for costs and expenses incurred … and any actual damage done …”.
  1. [29]
    I cannot understand the language and structure of this section to be other than a clear denial meant to limit a claim such that what might be general principles of compensation do not apply.
  1. [30]
    The use of the words ‘no person’, ‘whatsoever’ and ‘any loss or damage’ are expressions of wide import. The parties dispute the meaning of ‘whatsoever’ and its effect on the interpretation of s 16(1A).
  1. [31]
    The applicant says the word ‘whatsoever’ does not support the respondent’s narrow construction of ‘costs and expenses’. The term appears after the description of the causes of action and before ‘loss or damage’, which the applicant submits means that the only claim for compensation for loss and damage the result of the notice of the intention or the discontinuance is under s 16(1A). They say ‘whatsoever’ means that no claim can be launched elsewhere.
  1. [32]
    In my view the term ‘whatsoever’ makes it clear that there is no claim for compensation (or other right or remedy) except for a claim for compensation for costs and expenses. The use of the term ‘whatsoever’ reinforces the interpretation of s 16(1A) as a wide denial with a narrow exception. The use of ‘whatsoever’ makes it clear that ‘costs and expenses’ is a narrower term than ‘any loss or damage’. Indeed, as the respondent submits the use of ‘whatsoever’ causes the ejusdem generis rule to not apply such that it would give ‘loss or damage’ a narrower interpretation to bring it into the same ‘class of words’ as costs and expenses.
  1. [33]
    As the High Court held in Kettering Pty Ltd v Noosa Shire Council (2004) 78 ALJR (‘Kettering’) albeit in respect of different legislation, the meaning of provisions with expansive language should not be construed by ‘almost exclusive’ reference to the exceptions to it. In Kettering, the relevant legislative provision was in ‘reverse’ to s 16(1A) as it established a right to compensation before restricting it. Consequently, the Court held that the correct approach was to identify the extent to which the ‘very expansive right’ is reduced by subsequent exceptions.
  1. [34]
    The applicant submits that in Kettering, the High Court interpreted the relevant provision in a way that favoured dispossessed landowners. To apply that reasoning here, the applicant says that I should protect the landowner’s right to compensation by interpreting the exception to the denial of compensation with ‘all the generality’ that the words ‘costs and expenses’ permits.
  1. [35]
    However, in my view the terms of s 16(1A) prevent me from accepting the wide interpretation proffered by the applicant. The language in s 16(1A) does not confer an ‘expansive right’ to compensation but rather a wide denial. The correct approach is therefore to identify the extent to which the ‘very expansive denial’ is reduced by the narrow exception of costs and expenses.
  1. [36]
    In the circumstances, the provision for compensation for costs and expenses is not a ‘type’ of allowable compensation for loss or damage, as argued by the applicant. Put another way, compensation for costs and expenses is not to be understood as broadly as compensation for loss or damage.

The context of section 16 

  1. [37]
    Sections 16(1B) and (1C) guide the interpretation of section 16(1A).

Section 16(1B)

  1. [38]
    Section 16(1B) allows the constructing authority and a claimant to agree on the “amount of compensation” to be paid under s 16(1A) or to refer the matter for determination by the Land Court.
  1. [39]
    The applicant says that the term ‘compensation’ is used in place of the phrase ‘costs and expenses’. The use of ‘compensation’ does not restrict the parties’ agreement, or a Land Court determination, to an amount of ‘costs and expenses’. The agreement or determination can be for the entirety of compensation to which the claimant is entitled under s 16(1A).
  1. [40]
    In my view section 16(1A) clearly says “no person shall have any claim for compensation… except a claim for compensation for costs and expenses…”. The reference to compensation in section 16(1B) is a reference to compensation for costs and expenses, and not to compensation in any broader sense.

Section 16(1C)

  1. [41]
    Section 16(1C) of the ALA allows the constructing authority to have “such costs and expenses taxed by the proper officer of the Supreme Court under the rules of that court and that no person shall be entitled to compensation in excess of the value of his or her estate or interest in the land.”
  1. [42]
    The ALA commenced in 1967, prior to the commencement of the Uniform Civil Procedure Rules (UCPR).
  1. [43]
    The applicant says that s 16(1C) allows a constructing authority to have so much of the claimed ‘costs and expenses’ to be taxed as permitted by the UCPR which provides for the assessment of costs instead of taxation. On this view, ‘costs and expenses’ are not limited to those costs and expenses which are subject to costs assessments under the UCPR; there can be other costs and expenses but a constructing authority cannot seek a costs assessment of them under the UCPR.
  1. [44]
    In my view the wording of section 16(1C) is clear. The words “such costs and expenses” are in direct reference to the costs and expenses referred to in section 16(1A). In other words, if a claim for compensation for costs and expenses under s 16(1A) is made, a constructing authority can have those costs and expenses taxed (now, assessed) under the UCPR. The proviso in s 16(1C), that compensation shall not be in excess of the value in a person’s estate or interested in the land, is only made possible if it is the whole of a claim for costs and expenses that can be assessed under the UCPR.
  1. [45]
    The applicant says that s 16(1C) is a purely procedural provision. I do not agree. Section 16(1A) establishes the right to a claim for compensation for costs and expenses and imposes limits on the claim. Section 16(1C) allows a constructing authority to seek the taxation (assessment) of the claim for costs and expenses. The UCPR provide for the assessment of fees and disbursements incurred in litigation which in the ordinary course include legal costs and other professional fees such as expert reports. The proviso in s 16(1C) limits the entitlement by saying that compensation shall not be in excess of the value of the landholder’s estate or interest. Section 16(1C) therefore has a substantive quality.
  1. [46]
    The wording of s 16(1C) operates in harmony with s 16(1A) when it is understood to allow a constructing authority to the taxation (assessment) of the whole of a claim for costs and expenses when those costs and expenses are understood to be limited to “out of pocket costs and expenses in the nature of legal, valuation and other professional fees”.

ALA compensation in context

  1. [47]
    There are two key provisions in the ALA which assist in the interpretation of s 16(1A): s 20 which provides for compensation where a resumption proceeds; and s 17(4) which provides for compensation where a resumption is revoked after the publication of the gazette resumption notice but before compensation is determined.

Compensation where resumption proceeds

  1. [48]
    Compensation occasioned by the discontinuance or revocation of a resumption is covered by Part 3 of the ALA while Part 4 provides for compensation in the case of a completed resumption.
  1. [49]
    Section 20 (Part 4) provides for the assessment of compensation which includes the claimant’s costs attributable to disturbance.
  1. [50]
    Section 20(5) defines “costs attributable to disturbance” to mean “all or any of the following”. There are seven (7) subsections the first being legal costs and valuation or other professional fees reasonably incurred, followed by removal and storage costs, the cost of connecting services or utilities, financial costs reasonably incurred, loss of profits and other economic losses and costs.
  1. [51]
    Section 20(5) was an amendment introduced in 2009 to exhaustively prescribe and therefore expressly limit costs attributable to disturbance. No comparable amendment was made to s 16(1A) to define or limit the costs and expenses for which a claim for compensation is allowed in the case of a discontinued resumption.
  1. [52]
    The applicant says that if Parliament had intended to limit recoverability in s 16(1A) to legal, valuation and other professional costs, words of the type found in s 20(5)(a) (that is “legal costs and valuation or other professional fees …”) would have been used. Furthermore, they submit the introduction of s 20(5) evinces a legislative intention that any restriction on compensation claimable under the ALA must be expressly stated, and if parliament intended to restrict the compensable costs and expenses under s 16(1A) it would have prescribed such a restriction expressly. The applicant says the respondent’s construction of s 16(1A) would require limitations to be read into the provision contrary to the legislative intent.
  1. [53]
    There are circumstances in which a Court might consider an amendment to a statute to interpret an earlier version however they are limited.[2] If the words of the earlier statute are clear, little assistance is to be gained from the amendment.[3]
  1. [54]
    The restriction the respondent would read into s 16(1A) is a limit of compensation to: out of pocket costs and expenses; in the nature of legal and other professional fees; that are incurred in connection with the preparation of a claim for compensation.
  1. [55]
    I can find no basis upon which to conclude that the scope of compensation for disturbance items would be greater where a resumption is discontinued (s 16(1A)) than where a resumption is completed (s 20(5)).
  1. [56]
    The applicant submits that compensation will only be payable under section 16(1A) if it meets the common law test for disturbance, relying on Member Trickett’s 1994 decision in Emanuel. The common law test is articulated by Romer LJ in Harvey v Crawley Development Corporation [1957] 1 All ER 504 (‘Harvey’): compensation for disturbance is payable provided it is not too remote and that it is a natural and reasonable consequence of the dispossession of the owner.
  1. [57]
    Emanuel concerned a claim for compensation for costs and expenses incurred in respect of the discontinuance of a resumption. The case came after other Land Court decisions which touched on s 16 and preceded the introduction of s 20(5): Weld v Gold Coast City Council (1979) 6 QLCR 8 (‘Weld’); Merivale Motel Investments Pty Ltd v Brisbane Exposition and South Bank Redevelopment Authority (1985) 10 QLCR 175 (‘Merivale’); Merivale Motel Investments Pty Ltd v The Brisbane Exposition and South Bank Redevelopment Authority [1985] QLAC 11 (‘Merivale Appeal’); and Colin F Stanfield v The Brisbane City Council [1989] QLC 7 (‘Stanfield’).
  1. [58]
    In Weld, Smith P recognised that valuation fees incurred after the service of a notice of intention to resume but prior to a notice of discontinuance were the subject of a proper claim under s 16.
  1. [59]
    In Merivale, Mr Barry considered whether costs and expenses under s 16 included costs incurred for advice sought by a landowner about compensation upon receiving a notice of intention to resume, costs incurred in objecting to a resumption and costs incurred in negotiating alternative ways to proceed with the applicant’s intended development if resumption was to occur. Mr Barry said:

“I am of the opinion that a prudent person upon receiving a Notice of Intention to Resume his land might properly seek advise as to the appropriate amount he is likely to receive when the resumption occurs. If, per chance, the resumption is discontinued he has the protection for such costs in terms of section 16(1) of the Act”.

  1. [60]
    Mr Barry held that costs incurred in negotiations prior to service of the notice of intention to resume were seen to be commercial decisions on how the claimant should deal with the situation and not recoverable, and that charges relating to the preparation of a formal objection and objection conferences in an endeavour to stop the resumption or achieve a settlement were too remote and not recoverable. In a section 16(1A) situation, the landowner is not dispossessed. In my view, costs incurred in connection with an objection process do not fall within the scope of s 16(1A). As Mr Trickett said in Emanuel, if Parliament intended that costs of an objection to a resumption be recoverable, it could have easily expressly so provided. Section 20(5) does not allow for compensation for costs of an objection. As I said at paragraph [55], I can see no reason why the scope for a claim for compensation under section 20 for disturbance costs would be more limited than the scope for a claim for compensation under section 16(1A).
  1. [61]
    In the Merivale Appeal, the Court adopted the reasoning and conclusions of the Member below regarding the award for legal and valuation fees involved in the preparation and lodgement of the claim for compensation. The Court said that dispossessed owners are entitled to seek professional advice and assistance in order to comply with the requirements of the ALA insofar as lodging claims for compensation are concerned. The relevant period for the assessment of legal and valuation fees incurred commences with the receipt of the Notice and ends on the date of the lodgement of a compensation claim. In my view it is fair to say that the same costs and expenses would be recoverable, in the case of a discontinued resumption, from the date of service of the notice until the date of discontinuance for legal, valuation and other professional fees incurred in that period. 
  1. [62]
    In Stanfield, which concerned the resumption of land for a bus depot that was discontinued approximately 11 months after the notice of intention to resume was issued, Mr W.F.G Smith (the then President of this Court) held that “costs and expenses” under section 16 is broader than legal fees. Specifically, the President said:

I am against the respondent’s submission that “costs and expenses” as appearing in s 16(1) are limited to legal fees. “Costs and expenses” is not a technical term. The ordinary meaning of the words is much wider than “legal fees”. There is no explicit direction in the section that legal fees only are to be recouped. It seems to me that the intention of the legislation is that the owner who has been served a Notice of Discontinuance is entitled in addition to any actual damage done to the land concerned by the constructing authority to receive all out of pocket expenses incurred by him providing they were the natural and reasonable consequences (directly of indirectly) of the service of the Notice of Intention to Resume or the discontinuance of the resumption. 

  1. [63]
    Mr Smith also said that the fees for conferences in attempted settlements of claims for compensation are recoverable under section 16 as out of pocket expenses and tenable items, although they would not be recoverable under the general test for disturbance as applied in Merivale. As such, he concluded that “a claim under [section 16]… is wider than a claim under the disturbance rules set by the Merivale case”.
  1. [64]
    While the respondent notes that costs incurred in attempted settlement were not recoverable in Merivale, they accept that such costs could come within s 16(1A). Specifically, the respondent says that:

“There has been some disagreement about whether costs incurred in endeavours to reach a settlement of claim are recoverable; while it is not directly relevant to this case, the respondent is content to accept that costs of that character could come within s.16(1A), and within the language of the Question in para(a), as being costs incurred (questions of fact and degree demonstrating an appropriate causal connection would of course arise).”

  1. [65]
    Accepting the qualification expressed by the respondent, there may be scope for the recovery of legal, valuation and other professional fees, incurred in the attempted resolution of the proposed resumption.
  1. [66]
    It is clear why prior to the 2009 amendment, the court would rely on Harvey to award disturbance costs under section 20. In relation to s 16, Mr Trickett expressed his view in Emanuel that “costs and expenses provided or in s 16 are disturbance items for which the test propounded in Harvey… applies”.
  1. [67]
    The respondent does not submit that this court should apply the general test for disturbance from Harvey to section 16(1A). At the time Emanuel, Merivale, the Merivale Appeal and Stanfield were decided, section 20(5) had not been enacted. Section 20(5) now expressly defines the recoverable disturbance costs. For that reason, it would be wrong to continue to apply Harvey to determine disturbance costs and it would be equally wrong to apply it to section 16(1A). The common law test for disturbance costs was displaced by the enactment of section 20(5). However I accept the respondent’s submission that insofar as these cases place limitations on the award of disturbance costs, they support the interpretation of section 16(1A) as being narrow.
  1. [68]
    The court in Weld, Merivale, Stanfield and Emanuel, accepted that professional fees in the nature of legal, valuation and town planning expenses, incurred as a result of the notice of intention to resume but prior to discontinuance, are compensable. This is consistent with the respondent’s understanding of costs and expenses as stated in the preliminary question.
  1. [69]
    Mr Trickett found in Emanuel that the costs and expenses of seeking legal and other professional advice in relation to the Notice of Intention to Resume to be recoverable, noting that Mr Smith in Stanfield had extended this to the recovery of costs of conferences and negotiations in an endeavour to settle the amount of compensation payable – even though the process was discontinued.  He said in obiter:

This differs from the process of objecting to the taking of the land. A landowner may well have incurred costs and expenses between the notice of intention to resume and the discontinuance, not only in seeking professional advice, but for other reasons. A sale may have been aborted, crops not planted, improvements not made, land values may have fallen, and so on. Some or all of these circumstances may give rise to a successful claim under s 16(1).

  1. [70]
    The applicant says Mr Trickett’s reasoning is understandable as ss 16 and 20 provide for compensation for dispossession (s 20) and “assumed future dispossession” (s 16). They say that in the period following service of the Notice of Intention to Resume the landowner will assume the land will be taken and will act and incur costs and expenses: professional and non-professional fees and expenses, business losses, and a failure to realise profits. These they say are the natural and reasonable consequence of the impending dispossession.
  1. [71]
    In my respectful view, Mr Trickett erred. Even if human nature is such that the ordinary landowner would, after receiving a notice of intention to resume, expect that the resumption will occur, business losses and/or a failure to realise profits are not costs and expenses recoverable under s 16(1A). They are losses for which s 16(1A) widely denies compensation.

Compensation where revocation of resumption occurs – s 17(4)

  1. [72]
    The respondent says the narrowness of s 16(1A) is affirmed by the terms of s 17(4). Section 17(4) provides for compensation for “the loss or damage” and “(if any) costs or expenses incurred” where the taking of land is revoked before compensation is determined. Section 17(4), by providing for compensation for both loss or damage and costs or expenses, is wider than section 16(1A).
  1. [73]
    The applicant submits that the use of the definitive article “the” preceding “loss” in section 17(4) suggests that loss refers to the taking of the land, which occurs when section 17 applies, but not when section 16 applies. Specifically, the applicant submits that “the loss” connotes a loss that will be present in every claim for compensation under s 17(4) which is the (temporary) loss of the land. They say that ‘the loss’ under section 17(4) is not the same as ‘loss’ under section 16(1A). However, they say that because “loss” under section 16(1A) does not refer to the loss of the land, section 17(4) does not support a narrow construction of section 16(1A).
  1. [74]
    In a section 16(1A) situation, the taking of land does not occur. In a section 17(4) situation a landowner’s land is taken albeit temporarily. This explains why section 17(4) allows wider compensation (for the loss or damage as well as costs or expenses) than section 16(1A) and again suggests that the latter section should be narrowly construed. The use of the definitive article does not require ‘loss’ to be understood as only the temporary loss of land; “the loss” refers to the fact that the landowner will incur loss when their land is taken, even if only temporarily. The wording of section 17(4) also reinforces the argument that costs or expenses are different heads of compensation to loss or damage, rather than a ‘type’ of compensation for loss or damage. This, in my view, in turn reinforces the view that because, for example, a loss of profits is a loss, it does not fall within the meaning of costs.

The legislative intent and the “twilight zone”

  1. [75]
    The applicant speaks of the “policy intent”. They say the scheme of the ALA is to provide compensation for the extinguishment of property rights as a result of compulsory acquisition and a court must not construe a statute as curtailing or extinguishing property rights without fair compensation unless there is clear, unambiguous language.[4]
  1. [76]
    Section 16 is headed “Discontinuance of resumption before publication of gazette resumption notice”. A discontinued resumption does not result in an acquisition nor the extinguishment of property rights. Nevertheless, the applicant says the service of a notice of intention to resume affects a temporary restriction on property rights because while the notice is extant a landowner must deal with the public on the basis that the land will ultimately be resumed. The applicant does not argue a “constructive resumption”; rather, what they focus on is the practical effect. They say that parliament must have been conscious of the notion that once land is the subject of a notice of intention to resume, it is going to have a real practical effect on the landowner’s decision making and generation of economic return of the land. Further, they say that while the land is in a “twilight zone” the landowner cannot have confidence that if they go ahead with any particular development it will be compensated appropriately if the land is resumed, and that this is the context in which s 16 is to be read.
  1. [77]
    The effect of the applicant’s argument, as I understand it, is that I should interpret ‘costs and expenses’ broadly to consider the practical effect that the notice of intention of resume has on landowners.
  1. [78]
    The respondent says the primary purpose as disclosed in the language of the section is to deny a claim, and the denial in s 16(1A) is widely expressed: “…no person shall have any claim for compensation or other right or remedy whatsoever for any loss or damage alleged to have been occasioned (directly or indirectly) …” .
  1. [79]
    The respondent refers to the decision of Mr Barry in Merivale.  In that case, Mr Barry distinguished between three types of costs: costs incurred in seeking proper advice on compensation; costs incurred when endeavouring to stop a resumption; and costs incurred in considering the consequences for the landholder should a notice of intention to resume be served. The first type of costs was allowed and the latter two, as discussed at paragraph [60], were not allowed. With respect to the third category, Mr Barry said that these are costs “incurred in commercial decisions on how the directors of the claimant company should deal with the situation as they saw it" and that these costs would not be recoverable if the resumption did not proceed. The respondent says that this is relevant to the twilight zone argument. While businesses bear practical consequences of the possibility of resumption of their land, these costs are too remote and not a natural and reasonable consequence of the dispossession of the owner.
  1. [80]
    I do not accept the applicant’s submission that the practical consequences that may be borne by a landowner give rise to an interpretation of s 16(1A) that allows for a loss of profits to be claimed. As I said at paragraph [71], this is contrary to the wording of section 16(1A) which denies compensation for ‘loss or damage’.

Conclusion

  1. [81]
    I accept the requirements that the costs and expenses claimed under section 16(1A) must be reasonably incurred and themselves reasonable. Paragraph 1(a)(ii) of the question additionally requires that the costs and expenses claimed must be incurred in connection with the consideration of and/or in the preparation of a claim for compensation following the resumption of land foreshadowed by the notice of intention to resume. The respondent, in formulating this aspect of its construction of s 16(1A), has adopted the language of section 20(5)(a). As I have said at paragraphs [55] and [60], I do not see a reason why the scope of compensation for disturbance costs under section 20(5) should be narrower than compensation under section 16(1A). Paragraph 1(b) of the question is not in contention.
  1. [82]
    The key issue in the case concerns paragraph 1(a): “out of pocket costs and expenses in the nature of legal, valuation and other professional fees”. The applicant’s primary argument is that the respondent’s interpretation is too narrow because it excludes from compensation a claim for financial losses, in particular losses of profit. To make this argument, the applicant distorts the wording of section 16(1A) which in my view, clearly denies a claim for compensation for loss and limits any claim to costs and expenses.
  1. [83]
    An understanding of the context and intention of section 16(1A) is guided by the rest of section 16 and other parts of the ALA, specifically ss 20 and 17(4):
  1. 1.Section 16(1B) does not allow for compensation for more than costs and expenses, it refers to a claim for compensation for costs and expenses;
  2. 2.Section 16(1C) suggests that costs and expenses are those which can be subject to a costs assessment under the UCPR;
  3. 3.The common law test for disturbance was displaced by the enactment of s 20(5); and
  4. 4.Section 17(4) in providing for compensation for “the loss or damage” as well as “(if any) costs and expenses” reinforces the argument that s 16(1A) denies a claim for compensation for loss and is therefore to be interpreted narrowly.
  1. [84]
    The applicant advocates for an interpretation of the policy intent of section 16(1A) which conflicts with the wide denial to compensation expressly made in the provision, and the narrow exception to that denial.
  1. [85]
    The exception to the wide denial should not be construed more narrowly than is necessary; the landowner’s rights must be protected to the fullest extent allowed under the Act. The respondent’s construction of s 16(1A) does not unduly restrict those rights.

Order

The answer to the preliminary question is ‘Yes’.

Footnotes

[1] At [1], [8]-[9].

[2] Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348, 382.

[3] Logan City Shopping Centre Pty Ltd v Retail Shop Leases Tribunal [2006] QSC 17 [20].

[4] The applicant references Dixon CJ in Commissioner for Railways v Agalianos (1955) 92 CLR 390 at 397: “The context, the general purpose and policy of provision and its consistency and fairness are surer guides to its meanings, than a logic with which it is constructed”.

Close

Editorial Notes

  • Published Case Name:

    Genamson Holdings Pty Ltd v Moreton Bay Regional Council (No 2)

  • Shortened Case Name:

    Genamson Holdings Pty Ltd v Moreton Bay Regional Council (No 2)

  • MNC:

    [2024] QLC 24

  • Court:

    QLC

  • Judge(s):

    JR McNamara

  • Date:

    22 Nov 2024

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
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390
1 citation
Jump To
Cite 1 - (1955) 92 CLR 390
Genamson Holdings Pty Ltd v Moreton Bay Regional Council [2024] QLC 8
1 citation
Jump To
Cite 1 - [2024] QLC 8
Harvey v Crawley Development Corporation (1957) 1 All ER 504
2 citations
Jump To
Cite 1 - (1957) 1 All ER 504
Cite 2 - (1957) 1 All ER 504
Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348
1 citation
Jump To
Cite 1 - (1992) 39 FCR 348
Merivale Motel Investments Pty Ltd v Brisbane Exposition and South Bank Redevelopment Authority (1985) 10 QLCR 175
2 citations
Jump To
Cite 1 - (1985) 10 QLCR 175
Cite 2 - (1985) 10 QLCR 175
Merivale Motel Investments Pty Ltd v The Brisbane Exposition and South Bank Redevelopment Authority [1985] QLAC 11
2 citations
Jump To
Cite 1 - [1985] QLAC 11
Cite 2 - [1985] QLAC 11
Roads and Maritime Services v United Petroleum Pty Ltd (2019) 99 NSWLR 279
2 citations
Jump To
Cite 1 - (2019) 99 NSWLR 279
Cite 2 - (2019) 99 NSWLR 279
Stanfield v The Brisbane City Council [1989] QLC 7
2 citations
Jump To
Cite 1 - [1989] QLC 7
Cite 2 - [1989] QLC 7
Topaloglu v P&O Nedlloyd Ltd [2006] QSC 17
1 citation
Jump To
Cite 1 - [2006] QSC 17
Weld v Gold Coast City Council (1979) 6 QLCR 8
1 citation
Jump To
Cite 1 - (1979) 6 QLCR 8

Cases Citing

Case NameFull CitationFrequency
Genamson Holdings Pty Ltd v Moreton Bay Regional Council [2025] QLAC 28 citations
1

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