The Discretion of the Land Court to Award Costs on Appeals Against the Unimproved Value of Land
The power of the Land Court to award costs in appeals against the unimproved value of land is found in Section 66 of the Valuation of Land Act 1944 (Qld) (the Act)1. Section 66 provides:
Upon an appeal under section 55 the Land Court or, upon the rehearing of any such appeal, the Land Appeal Court mayâ
(a) affirm the valuation appealed against; or
(b) reduce or increase the amount of that valuation to the extent necessary in its opinion to determine the same correctly under, subject to, and in accordance with this Act;
and, subject to section 70, make such order as it deems fit with
respect to the payment of costs.
The Land Court Act, section 70 provides:
(1) Where the value of land as finally determined upon an appeal against the valuation is the value stated by the owner in the owner’s notice of appeal against the valuation, or is nearer to that value than to the valuation appealed against, costs shall not be awarded against the owner.
(2) Otherwise costs shall not be awarded against the chief executive.
Section 70 sets up two reference points for the enlivenment of the jurisdiction to award costs to one party or the other: the amount stated in the appellant’s Notice of Appeal (see section 45(5)); and the issued valuation. If the value determined is closer to the issued valuation than to the value in the Notice of Appeal, costs must not be awarded against the Chief Executive; if the figure is closer to the figure in the Notice of Appeal than to the issued valuation, then costs may not be awarded against the appellant.
For many years the approach of the Court to the issue of costs where jurisdiction to award them existed was reflected in decisions such as Scougall v Department of Natural Resources (1996-97) 16 QLCR 536 where, at 556, the Land Appeal Court said:
“Decisions by the Land Appeal Court in cases such as Santos Ltd v The Valuer-General (1989) 12 QLCR 231 and Hymix Industries Pty Ltd v The Valuer-General (1990) 13 QLCR 173 support the conclusion of the former President of the Land Court that:
‘the attitude which the Court should take in the exercise of its discretion is primarily one of restraint, which, speaking broadly, may be exercised against the Valuer-General if satisfied that he has acted arbitrarily or capriciously and against the owner or if satisfied that he has acted in a frivolous or vexatious manner. (Queensland Landmark Developments Ltd v Valuer-General (1992) 14 QLCR 168 at 171.’ ”
Bowden v Valuer-General (1980) 7 QLCR 138 had been regarded as authority for the proposition that costs should be not be awarded except in “special cases”, and that in revenue appeals easy access to the courts by parties is desirable and should be available without fear of unfavourable costs orders.
In Department of Lands v Juris Towers Pty Ltd (1994-1995) 15 QLCR273 at 276, the Land Appeal Court accepted that costs should be awarded only in “special cases”, and endorsed observations in Hymix Industries Pty Ltd v Valuer-General (1990-1991) 13 QLCR 173 at 185-186 suggesting that to be “special” a party should be found to have approached the valuation “in an arbitrary, frivolous or vexatious manner or has completely disregarded principles.”2
The circumstances in which the Court will award costs in favour of the successful party was re-considered by the Land Appeal Court of Queensland in PT Limited & Westfield Management Limited v Department of Natural Resources and Mines [2007] QLAC 0121.
There, the Court rejected the contention that its discretion was confined to “special cases”. The Court held that in interpreting section 66, the Court should not be bound by any presumptive rule or principle: the discretion is complete, but must be exercised judicially: at [20]. The Court noted that any number of factors might be relevant to the discretion to award costs, including the outcome of the litigation and the overall purpose of the legislation. The Court observed that contemporary legislation in Queensland tended to make express provision about costs if it was thought desirable that parties not be discouraged from seeking to assert rights by the fear of adverse costs orders: at [22]. Here, it was essential that the words of the legislation be kept firmly in mind when considering a costs application: at [18]. The discretion to award costs was unconfined: at [34].
The Land Appeal Court concluded (at [23]):
“It is with these considerations in mind that the observations in Bowden should be considered. It is entirely in accordance with the proper exercise of the discretion granted to award costs to give effect to the matters expressed in Bowden, but it must be kept in mind that those observations should not be read as imposing a gloss on the legislation mandating when the discretion ought be exercised or declined to be exercised. In our view, the observations in Scougall are expressed too broadly if they seek to confine the exercise of the discretion to the circumstances there mentioned. As recognised in Bowden, a cautious approach to costs does not mean that in appropriate cases costs orders should not be made.”
and
“While we agree that easy access of parties to the Courts in revenue cases is highly desirable, particularly with respect to first instance appeals, and a cautious approach to costs in such cases is justified, the question of costs is one that has always to be decided according to the facts and circumstances of each individual case”: at [34]
On the particular circumstances of the PT Limited case, the Court held that even if the observations made in Bowden were applied, the facts and circumstances surrounding the proceedings in the case would comfortably satisfy the “special case” test.
Roger Traves SC
Footnotes
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Section 34 of the Land Court Act 2000 (Qld) also confers power on the Court to award costs, but is expressed to be subject to the provisions of another Act to the contrary, and in this context the section defers to the note specific previous in the Valuation of Land Act 1944 (Qld).
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See Pt Limited v Westfield Management Limited. Department of Natural Resources and Mines [2007] QLAC 0121 at [16].
