30th September, George William MacLean Homewood and Iver Douglas Macarthur Brodie MacLurkin v. Commissioner of Main Roads

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1 LAND COURT, BRISBANE 30th September, 1992 Re: Claim for Compensation - Resumption for Road purposes - A George William MacLean Homewood and Iver Douglas Macarthur Brodie MacLurkin v. Commissioner of Main Roads J U D G M E N T By Proclamation published in the Government Gazette of 6th March, 1982, an area of about 1955 square metres was taken from Resubdivision 5 of Subdivision 2 of Portions 350 and 355, parish of Enoggera, county of Stanley. The resumptions were made under the provisions of the Acquisition of Land Act 1967 and the Main Roads Act The registered proprietors of the land were George William MacLean Homewood and Iver Douglas Macarthur Brodie MacLurkin, as tenants in common in equal shares. The land was mortgaged to Group Industrial Credits Limited (the Mortgagee). An amending Proclamation was published in the Government Gazette of 15th December, 1984, amending the previous Proclamation and stating that the lands taken were Lots 1 and 2 on Plan No , parish of Enoggera, county of Stanley, containing areas of 551 square metres and 1399 square metres respectively. Plan No cancelled Resubdivision 5 as described in the first Proclamation and replaced it with Lots 1 to 3. Lots 1 and 2 (the resumed land) contain the areas shown in the second or amending Proclamation, while Lot 3 contains a net area of hectares. The resumption gives rise to claims for compensation and by claim dated 28th July, 1986, the mortgagee lodged a claim for compensation for $25,000. At this stage no other claim was made. On 18th February, 1991, the Crown Solicitor, on behalf of the Commissioner of Main Roads, referred the matter to the Land Court. On 11th November, 1991, the Registrar of the Land Court issued an Order to Enter an Appearance under Section 25(1) of the Acquisition of Land Act 1967, ordering the registered proprietors to enter an appearance on or before 31st January, Service of the order was by way of substitute service under Rule 12 of the Rules of the Land Court and the order was published in the Queensland Government Gazette and The Courier Mail newspaper. A copy of the order was also sent to the last known addresses of the dispossessed owners, including to Messrs Lawson Jones and Fulton, solicitors, and to Messrs Corrs

2 2 Chambers Westgarth, solicitors for the mortgagee. On 30th January, 1992, the Registrar of the Land Court received a letter from Mr G.W.M. Homewood indicating that his solicitor had withdrawn from the case on 29th January, 1992, and he was seeking legal aid in respect of the hearing of his claim for compensation. He also stated that Mr MacLurkin had disappeared or was deceased and asked for an extension of time to enable him to arrange a legal representative. On 18th February, 1992, the Crown Solicitor, on behalf of the Commissioner of Main Roads, sought a further order for substituted service in this matter. Accordingly, on 26th March, 1992, a further order was issued, requiring the registered proprietors to enter an appearance on or before 26th June, On 26th June, 1992, a handwritten claim for compensation for $49,000 was lodged in the Land Court Registry, signed by Mr Homewood. On 16th September, 1992, the matter was brought on for hearing. Mr Homewood appeared on his own behalf, but there was no appearance by or on behalf of Mr MacLurkin. However, in correspondence, Mr Homewood stated that he had acquired Mr MacLurkin's share although there was no other evidence of this. In any case, under Section 25(4) of the Acquisition of Land Act 1967, when a claimant fails to enter an appearance or fails to appear at the hearing, the Land Court may hear and determine the matter in the absence of the claimant. Ms E.B. Jesurasingham, solicitor of Messrs Corrs Chambers Westgarth, appeared on behalf of the mortgagee and sought leave to amend the claim for compensation lodged by the mortgagee in 1986 from $25,000 to $8,000. Mr Homewood sought leave to amend his claim from $49,000 to $25,000. Leave was granted by the Court to both these amendments. Ms Jesurasingham then applied under Section 32 of the Acquisition of Land Act 1967, for payment of compensation to be made to the mortgagee. An affidavit sworn by Toni Carruthers, company director of Group International Credits Limited (the mortgagee) states that at the date of resumption, the company was the mortgagee of the resumed land and a copy of the registered Bill of Mortgage No F was attached to the affidavit. The Bill of Mortgage covered the land described as Resubdivision 5 of Subdivision 2 of Portions 350 and 355, the original mortgaged land. This land was subdivided into Lots 1, 2 and 3 on Plan Pursuant to the Bill of Mortgage, the registered proprietors agreed to repay the sum of $400,000 to the company by equal monthly instalments and to pay interest on the outstanding principal. The registered proprietors defaulted in payment of principal and interest and, following demand, failed to pay the amount outstanding so that pursuant to the terms of the Bill of Mortgage the company exercised its power of sale over Lot 3, the remaining land. However, the company did not exercise its power of sale over the resumed land and remained at the date it was resumed, the mortgagee. The affidavit continues that there remains outstanding under the Bill of Mortgage the amount of $30, Pursuant to Clause 37 of the Bill of Mortgage, all monies which may become payable by way of compensation in respect of the resumed land shall be paid to and be receivable by the mortgagee. The mortgagee is empowered to make claim and to

3 3 enforce and receive payment of the compensation and to compromise and agree to settle upon the compensation payable and to execute releases in the name of the registered proprietors, notwithstanding anything in any Act under which the purchase monies or compensation money may be payable. Accordingly, the mortgagee claimed the compensation payable by the Commissioner of Main Roads for the resumption of the resumed land pursuant to the terms of the Bill of Mortgage. However, Ms Jesurasingham said that the mortgagee did not intend to adduce valuation evidence but proposed to await the determination of the Court on Mr Homewood's claim. Ms Jesurasingham tendered her own affidavit to which was attached a copy of the Certificate of Title of the subject land which clearly showed the mortgage in favour of the mortgagee registered on 30th November, 1979 and no subsequent discharge. Because of the difficulty of having two claims for compensation for differing amounts, the Court adjourned so that the parties could discuss the matter, including the outstanding capital and interest under the Bill of Mortgage which seemed to come as some surprise to Mr Homewood. When the Court reconvened, the parties had agreed to the figure of $8,000 compensation offered by the Commissioner of Main Roads. That amount was the figure assessed by Mr James Houghton, registered valuer, employed by the Department of Lands. Mr Homewood also agreed that the amount of compensation should be paid directly to the mortgagee, pursuant to section 32 of the Acquisition of Land Act. In his submission relation to costs, Mr Licciardello, counsel for the Commissioner of Main Roads, tendered an affidavit of Patrick John Dwyer, barrister, employed by the Crown Solicitor, detailing the costs of effecting substituted service for a total sum of $421.80, being the cost of advertising in the Government Gazette $126 and in The Courier Mail $ In addition, Mr Licciardello sought legal costs of $1,200 and valuation costs of $500 which were agreed to by the parties. In summary, the costs sought by Mr Licciardello were - Advertising costs $ Legal costs $1, Valuation fees $ TOTAL $2, Mr Licciardello opposed the payment of interest over the full period but submitted that interest was payable only from the date of resumption to the date twelve months after the completion of construction works. In relation to this period, Mr Licciardello called evidence from Mr Geoffrey Thomas Gray, Senior Engineer in the Department of Main Roads, that work commenced on 29th April, 1982, and was completed on 4th June, Mr Licciardello therefore submitted that interest should run from 6th March, 1982, the date of resumption, until twelve months after 4th June, 1983, that is, 4th June, The mortgagee agreed to the award of interest for that period.

4 4 Mr Licciardello relies, in relation to his submission for costs and interest, on the decision in the case of Donald Gordon Ogle and W.R. Carpenter Australia Pty Ltd v. The Director-General, Department of Transport, by my learned colleague, Mr D.M. White, on 7th August, In that case, the land was taken by Proclamations published in the Government Gazette of 10th October, 1981, and 2nd October, No claim for compensation was made and on 21st November, 1990, the respondent referred the matter to the Land Court and requested that an order issue under section 25 of the Acquisition of Land Act As the respondent was unable to ascertain the whereabouts of the registered proprietor, Ogle, orders were issued for substituted service on the registered proprietor and on the mortgagee in possession. The mortgagee in possession entered an appearance within the time required by filing a claim for $1,250, the sum offered by the respondent. The registered proprietor did not enter an appearance. At the hearing, the solicitor for the mortgagee informed the Court that the mortgagee was seeking the payment of compensation at the sum of $1,250 offered by the respondent. Mr White rejected the argument of the mortgagee that interest be paid on compensation from date of resumption to date of payment, on the basis of a number of authorities cited in his judgment, commenting that the common thread in these cases is that the respondent should not be required to pay interest on compensation for a lengthy period where a claimant has been dilatory in pursuing his statutory rights to the claim. He noted that this view was taken by the Land Appeal Court in White v. Brisbane City Council (1975) 2 Q.L.C.R Interest was therefore awarded from the date of resumption for a period ending twelve months after the completion of the works, that is, 30th June, In Ogle's Case, Mr White drew a distinction between costs incurred in litigating the claim and costs incurred in bringing the matter before the Court but in the present case the mortgagee has agreed to the amount of legal and valuation costs submitted by the respondent. I agree with the reasoning of Mr White in Ogle's Case that the respondent is entitled to recover costs of effecting substituted service. Therefore, I make the following determinations and orders - Compensation payable consequent upon the resumption is determined under all heads at Eight thousand dollars ($8,000). Interest on that sum is ordered to be paid from and including the date of resumption, 6th March, 1982, up to and including 4th June, 1984 (that is, twelve months after the completion of the works), at the rate of 14 per centum per annum. Pursuant to section 32 of the Acquisition of Land Act, I order that compensation be paid to the mortgagee. It is further ordered in the exercise of the Court's discretionary powers that the claimant/mortgagee pay the respondent's costs at the agreed sum of Two thousand, one hundred and twenty-one dollars and eighty cents ($2,121.80). (J.J. Trickett)

5 5 Member of the Land Court

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