H.A. Bachrach (Nom.) Pty Ltd v Valuer-General

[2016] QLC 66

LAND COURT OF QUEENSLAND

CITATION:

H.A. Bachrach (Nom.) Pty Ltd v Valuer-General [2016] QLC 66

PARTIES:

H.A. Bachrach (Nom.) Pty Ltd
Appellant

v

Valuer-General
Respondent

FILE NO/s:

LVA066-16

DIVISION:

General Division

PROCEEDING:

Hearing of application

DELIVERED ON:

28 October 2016 ex tempore

DELIVERED AT:

Brisbane

HEARD ON:

28 October 2016

HEARD AT:

Brisbane

PRESIDENT:

FY Kingham

ORDER/S:

The respondent’s application for costs is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – DISCONTINUANCE OF PRCEEDINGS – where proceedings discontinued    after a Joint Expert Conference – where parties bear their own costs in the usual course – whether the proceedings were frivolous or vexatious – whether costs should be awarded to the respondent

Land Court Act 2000, s 7
Land Court Rules 2000, r 24B
Land Valuation Act2010, s 171
Uniform Civil Procedure Rules 1999, r 5

Chief Executive, Department of Natural Resources and Mines v Sabina Three Gorges Corporation Limited [2001] QLC 26
Permanent Trustee of Australia Limited as trustee & Anor v Department of Natural Resources and Mines (2002-2003) 24 QLCR 1

APPEARANCES:

N Murphy, agent – Savills Valuations Pty Ltd, for the appellant
A Tuite, Lawyer – Crown Law, for the respondent

1. This is an application by the Valuer-General for its costs in these proceedings, upon the appellant filing a Notice of Discontinuance. Any order for costs would be made under s 171 of the Land Valuation Act2010, and the Valuer-General has confirmed the application is made on the basis that the proceedings were frivolous or vexatious.

1. The purpose of a costs order is not to punish an unsuccessful party, but to compensate a successful party against the expense they have been put to by reason of the legal proceedings. The approach taken by this Court in the past is to adopt a restrained approach in relation to its power to award costs in order to promote access to the Court, as is clearly the objective of the Land Court Act 2000 (s 7).

1. The Valuer-General contends the proceedings are frivolous or vexatious within the meaning of s 171(2)(a) Land Valuation Act2010 because the appellant caused it to waste time and costs inconsistent with the appellant’s obligation under r 5 of the Uniform Civil Procedure Rules 1999.  I have been referred to a couple of authorities which deal with applications of a similar nature in this Court in the past.

1. One is Permanent Trustee of Australia Limited as Trustee & Anor v Department of Natural Resources and Mines (2002-2003) 24 QLCR 1. The other is Chief Executive, Department of Natural Resources and Mines v Sabina Three Gorges Corporation Limited [2001] QLC 26. Those cases deal, it seems to me, with different circumstances to the ones that apply in this case.

1. The nub of the respondent’s argument is that the appellant has unilaterally withdrawn in a situation where there has been no formal change of position in these proceedings by the Valuer-General. As a result, the Valuer-General has been forced to unnecessarily incur costs in preparing and responding in these proceedings.

1. I will note that, in the material before me, there is reference to what occurred at a conference of experts convened as part of the standard pre-trial process in matters of this nature. Rule 24B of the Land Court Rules 2000 provides that anything said or done, or any admission made at a meeting of experts, is inadmissible at a hearing of a proceeding in this Court unless all parties agree. There is no agreement. Therefore, I disregard anything that relates to what may or may not have been said by valuers at that joint meeting and any arguments that rest upon it.

1. So that leaves me with a situation where an appeal has been filed, pre-trial steps have been undertaken, and at, I would have to say, a relatively early stage of proceedings of this nature in the Court, at least in the past, the appeal has been withdrawn.

1. A matter is not frivolous or vexatious simply because it fails. This matter could go all the way to trial and then fail completely, and unless there was some conduct on the part of the appellant which suggested their conduct of the proceedings was vexatious or it was so obviously unmaintainable that it should never have been brought, costs would not be awarded by this Court against the unsuccessful appellant.

1. I have nothing before me to suggest that this appeal is a frivolous or vexatious appeal. In terms of vexation, Mr Murphy has drawn my attention to how promptly the decision was made by his client to withdraw the appeal having considered advice following a joint expert conference. So, on that score, it seems to me that the appellant has moved with admirable haste.

1. In terms of whether the appeal is frivolous, I simply have no evidence before me that would allow me to draw that conclusion. I have no material from valuers that I could look to, to draw the conclusion that this was an appeal that had no prospects, never had any prospects and should never have been brought.

1. In those circumstances, it is simply not open to me to exercise discretion in favour of the Valuer-General to make an order for costs in the circumstances of this case. I refuse the application.

ORDER:       

The respondent’s application for costs is refused.

FY KINGHAM
PRESIDENT OF THE LAND COURT