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[2026] QCA 23
appellant. Leave to appeal granted; appeal allowed only to the extent of setting aside the answer to the preliminary question; matter remitted to the Land Court for further determination according to law;...
The Court of Appeal did not decide which of Genamson’s claimed expenses will ultimately be compensable. It said that s 16(1A) generally concerns actual outlays, not losses such as lost rent or lost profits. The related provision, s 16(1C), lets the Council seek assessment of “such costs and expenses” and affects how the entitlement is understood. Whether the items Genamson claims can be dealt with under that assessment process, and how the statutory provisions apply to the facts, still needs to be considered. The Court therefore removed the Land Appeal Court’s “no” answer to a preliminary question and sent the matter back to the Land Court.
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2,584 words · generated 08/10/2026
Moreton Bay Regional Council v Genamson Holdings Pty Ltd [2026] QCA 23 is a Court of Appeal decision about a preliminary statutory-construction question in a compensation claim arising from proposed resumption of land. The Court did not determine the final amount or categories of compensation payable. Its orders instead removed an answer given by the Land Appeal Court and remitted the matter to the Land Court for further consideration ([88]–[90]).
3 cited instruments linked from this judgment.
Genamson owned land at Caboolture South, including the Heritage Plaza shopping centre. In March 2015, it applied for development approval for a further material change of use. The Council issued a notice of intention to resume part of the land on 12 August 2016, for drainage works and an easement, and refused the development application on 15 August 2016 ([5]–[6]). Genamson successfully appealed the refusal in the Planning and Environment Court. The development application was approved with conditions on 1 August 2018 ([7], [9]).
The Council issued a second notice of intention to resume in October 2017. In September 2018 it purported to apply to the Minister for the land to be taken. Genamson later obtained Supreme Court declarations that the decision to seek to take the land was of no effect ([8], [10]–[11]). Genamson also contended that the notices of intention to resume were taken to have been discontinued because the Council had not made, or had not validly made, an application to the Minister within the relevant periods. That contention was part of the Land Court material; the Court of Appeal did not finally decide it ([12]).
Genamson brought a compensation claim in the Land Court. Its pleaded claims were described in four broad categories: additional costs of obtaining development approval; rent losses and costs or incentives offered to tenants; rates, land tax and interest said to arise from sterilisation of development potential; and legal, valuation and other professional costs associated with the notices and compensation claims ([13]–[14]). There was no claim for actual physical damage to the land ([14]).
The preliminary question asked whether s 16(1A) confined compensation to specified legal, valuation and other professional fees, subject to stated conditions, and actual damage to the land ([15]). The Land Court answered “yes”. The Land Appeal Court reversed that answer, saying “no”, on the basis that “costs and expenses” were not confined to legal costs and disbursements, while also stating that the provision did not give Genamson a right to claim loss or damage ([16], [18]). The Council sought leave to appeal under s 74(2) of the Land Court Act 2000 (Qld).
The Court of Appeal granted leave because the issue was significant to these parties and to other people making or meeting claims under s 16 ([19]–[20]). It then set aside the “no” answer, but did not restore the Land Court’s “yes” answer. It remitted the proceeding for further determination according to law ([88]–[90]).
The central statutory provisions dealt with different stages of a resumption. Section 12(5) provides a compensation right when a gazettal resumption notice is published and the land vests in the constructing authority ([21]). Section 17(4) addresses compensation where land taken is later revested, including “loss or damage and (if any) costs or expenses” incurred in consequence of the taking before revesting ([22]). Section 16 applies earlier, where the resumption is discontinued before publication of the gazettal resumption notice ([23]).
Under s 16(1A), a person served with the notice of intention to resume is generally barred from claims for loss or damage alleged to have been occasioned directly or indirectly by the notice or discontinuance. The subsection preserves a claim for “costs and expenses incurred” and for actual damage done to the land by the constructing authority ([23], [44]–[45]). The distinction between those preserved outlays and excluded losses is central to the Court’s reasoning.
Doyle JA construed “costs and expenses incurred” in its ordinary sense as outlays, whether they have already been paid or remain payable ([51]). The Act uses different expressions for different concepts, including “loss or damage” and “loss of profits” ([52]). The Court therefore said the compensation right in s 16(1A) does not extend simply because an applicant has experienced financial harm: the claimed item must be a cost or expense, not merely a loss or damage ([52]–[54]).
The Court did not adopt the Land Appeal Court’s reasoning that the words “costs and expenses” could not be confined to costs recoverable through the assessment process. Instead, it considered s 16(1C), which says the constructing authority may have “such costs and expenses” taxed by the proper officer under the court rules. The parties accepted that this reference should now be understood as referring to assessment under the UCPR ([64], [82]).
The word “such” points back to the costs and expenses in s 16(1A), the only earlier use of that expression in s 16 ([65]). The Court rejected Genamson’s proposed reading that s 16(1C) effectively meant “such of the costs and expenses as are capable of assessment”, leaving any other costs to be determined separately by the Land Court ([69]–[75], [86]). Among its reasons, the Court considered that this reading did not fit the word “such”; could leave two mechanisms for determining overlapping categories; and assumed, without demonstration, that there was a material group of relevant costs incapable of assessment ([71]–[74]).
However, the Court did not conclude that any particular claimed item was excluded by s 16(1C). It observed that the former taxation process and the current assessment process appeared capable of being used across all four claim categories, but the parties had not fully addressed the scope of those processes or how they applied to established facts ([76]–[84]). Whether the assessment regime can deal with the relevant outlays remained an important unresolved question.
The Court also treated causation cautiously. Section 16(1A) does not expressly say that the costs must be attributable to service of the notice. But Doyle JA’s preliminary view was that some causal nexus is required, having regard to the provision’s context and the way it describes excluded loss or damage as alleged to have been occasioned by the notice or discontinuance ([46]). The Court expressly did not decide the precise content of that nexus.
Finally, the Court found that the preliminary question and the answer “no” did not dispose of the real controversy. The answer did not say which proposed limitation was wrong, nor resolve how s 16(1C) affected the claim categories ([38]–[40]). Because the relevant facts and assessment issues required further consideration, the Court set the answer aside rather than replacing it with a final ruling on each category ([40]–[41], [87]–[90]).
The judgment describes the statutory framework before the appeal through the text of ss 12, 16, 17 and 20. Section 16 concerns discontinuance before publication of a gazettal resumption notice. It excludes claims for loss or damage, subject to the exceptions for costs and expenses incurred and actual damage to the land ([23], [44]–[45]). Section 17 concerns land that has been taken and later revested, while s 20 concerns assessment of compensation following acquisition ([22], [24]).
Before this appeal, the Land Appeal Court had answered the preliminary question “no”. It reasoned that “costs and expenses” were not restricted to legal costs and disbursements but did not include a right to claim loss or damage ([18], [30]). The Council’s argument in the Court of Appeal focused on the connection between s 16(1A) and the assessment mechanism in s 16(1C), rather than simply defending the original preliminary question as framed ([35]–[36], [39]).
After the Court of Appeal’s decision, the Land Appeal Court’s answer no longer stood. The Court of Appeal gave guidance that “costs and expenses” ordinarily means outlays and that the phrase must be read in the context of s 16(1C), but it did not finally determine the availability of Genamson’s individual claims ([51]–[58], [64]–[76], [86]–[90]). The statutory question was therefore not resolved in the sense of a final ruling that any particular category was compensable or excluded.
The judgment itself cites authorities on statutory interpretation and consistent construction, including SZTAL v Minister for Immigration and Border Protection at [32], and Regional Express Holdings Ltd, Tabcorp Holdings Ltd and Registrar of Titles (WA) v Franzon at [66]. It also cites Re Taylor and Collings’ Contract and Chandris v Union of India when discussing ordinary meanings of “cost” and “expense” ([51]). The document does not provide a broader account of the law before those decisions, so no further historical comparison can safely be drawn from this judgment alone.
At [32], Doyle JA adopted the familiar starting point that statutory meaning is determined from text while considering context and purpose. In plain English, a word is not read in isolation: the rest of the Act and what the provision is doing matter from the outset.
At [51], the Court said “costs and expenses incurred” ordinarily refers to “outlays incurred (whether yet paid or not)”. This means that an unpaid but incurred expense may still be an outlay. It does not mean that every financial consequence qualifies as an expense.
At [52], the Court drew the distinction sharply: “The right to compensation extends no further than to costs and expenses and not losses or damage or loss of profits.” In plain English, financial disadvantage alone is not enough. A claim described as rent lost, profit lost or damage suffered must still fit the statutory category if it is to be claimed under s 16(1A).
At [58], the Court summarised the matters relevant to whether a claimed item falls within the provision: whether it is an outlay, whether it was incurred by the recipient of the notice, and whether it has whatever required nexus to the notice or discontinuance. The Court left the precise causal requirement open ([46], [85]).
At [71], the Court explained that “such” refers back to something already mentioned. This was one reason it rejected Genamson’s proposed interpretation of s 16(1C). The subsection was not read as expressly creating a division between assessable expenses and a separate balance for the Land Court.
At [87], Doyle JA said the better answer on the arguments then presented would have been “not necessarily”, but that there was no utility in giving that answer. In plain English, the question was too blunt to resolve the actual dispute. The Court instead removed the existing answer and left the matter for further determination.
The orders at [90] show the practical result: leave to appeal was granted; the appeal succeeded only to the extent of setting aside the answer; the matter went back to the Land Court; and the parties were asked to make short submissions on costs.
The decision concerns claims under s 16(1A) where a constructing authority serves a notice of intention to resume and the resumption is discontinued before publication of a gazettal resumption notice. It is particularly relevant where a claimant says the notice led to expenditure, but the claim is contested on the basis that the alleged item is a loss rather than an outlay ([23], [44]–[58]).
The reasoning may be relevant where claimed items include professional fees, costs of pursuing development approval, payments or incentives to tenants, or continuing outlays such as rates, land tax and interest. The judgment did not decide whether these categories qualify. It made provisional observations: some development-approval costs appeared capable of being outlays; some tenant-related costs might be outlays; lost rent was difficult to identify as a cost or expense; and the third category raised a question whether the claim was for expenses themselves or for delayed receipts that might have reimbursed them ([60]–[63]).
A recurring issue is the difference between an expense paid or payable and a lost opportunity or delayed income. For example, Genamson said it incurred rates, land tax and interest while development potential was sterilised. The Court said the facts might show that the claim was instead about delay in receipts that would otherwise have reimbursed those expenses, which would raise a different question under s 16(1A) ([62]).
The case is also relevant where s 16(1C) is invoked and parties disagree about whether the UCPR assessment process can assess the claimed items. The Court considered that the process appeared capable of addressing the categories in this case, but emphasised that the issue had not been fully argued or determined ([76], [80], [84]). The decision therefore highlights the importance of identifying the nature of each item and the assessment mechanism said to apply, without deciding the result for any particular claim.
The supplied judgment does not identify any later decisions applying, distinguishing or otherwise treating Moreton Bay Regional Council v Genamson Holdings Pty Ltd. Because the judgment was delivered on 20 February 2026, the material provided cannot establish how courts treated it afterwards.
The Court does identify the authorities it relied on or cited in reaching its own reasoning. SZTAL is quoted for the text, context and purpose approach to statutory construction ([32]). Regional Express Holdings, Tabcorp Holdings and Registrar of Titles v Franzon are cited in support of reading statutory provisions harmoniously and giving related expressions consistent meanings unless context points otherwise ([66]). Re Taylor and Collings’ Contract and Chandris are cited in the discussion of the ordinary meaning of “cost” and “expense” ([51]). Sykes v Queensland Gas Co is cited in explaining factors relevant to leave to appeal ([20]).
Those references show the sources used by this Court, not later judicial treatment of this decision. The judgment’s significance must therefore be described from its own reasons and orders: it provides construction guidance but leaves the application to Genamson’s claims for the Land Court.
The first open question is the precise causal nexus required by s 16(1A). The Court’s preliminary view was that the claimed outlays need some connection to service of the notice, but it did not decide whether the required link is direct, indirect, or otherwise ([46], [85]).
The second is whether each claimed item is genuinely an outlay. The judgment distinguishes outlays from lost rent, lost profits, damage and delayed receipts, but does not decide how the evidence will characterise the items in Genamson’s claim ([52], [60]–[63]).
The third is the extent to which the UCPR assessment process can assess each kind of claimed expense. The Court considered that the process appeared capable of being used for the categories in issue, but noted that its application had not been fully argued against established facts ([76], [79]–[84]). The Court’s construction of “such costs and expenses” may limit the practical scope of s 16(1A), but it did not decide whether any particular item is incapable of assessment ([86]).
The fourth is the timing and operation of the constructing authority’s option under s 16(1C), including whether it can be exercised after a party refers compensation to the Land Court under s 16(1B). The Court recorded that this issue had not been argued and made no determination ([49]).
Finally, the judgment does not resolve whether the notices were legally discontinued, whether Genamson’s individual items satisfy the statutory requirements, or what compensation should be awarded. Those matters remain outside the determination made by the Court of Appeal and are for further proceedings in the Land Court.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Moreton Bay Regional Council v Genamson Holdings Pty Ltd [2026] QCA 23
PARTIES: MORETON BAY REGIONAL COUNCIL / (applicant) / v / GENAMSON HOLDINGS PTY LTD / ACN 053 174 271 / (respondent)
FILE NO/S: Appeal No 4306 of 2025 / LAC No 001 of 2025
DIVISION: Court of Appeal
PROCEEDING: Application for Leave Land Court Act
ORIGINATING COURT: Land Appeal Court at Brisbane – [2025] QLAC 2 (Cooper J, President Stilgoe OAM and Member Loos)
DELIVERED ON: 20 February 2026
DELIVERED AT: Brisbane
HEARING DATE: 9 February 2026
JUDGES: Boddice JA, Bradley JA, Doyle JA
ORDERS: **1.****Leave to appeal is granted.****2.****The appeal is allowed only to the extent of setting aside the answer to the preliminary question.****3.****The matter is remitted to the Land Court for further determination according to law.****4.**On or before a date 7 days from the date of delivery of these reasons the parties are to file and serve submissions, not to exceed 5 pages, if any, on the order for costs they seek in this application and appeal.
CATCHWORDS: REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – PROCEEDINGS FOR COMPENSATION – QUEENSLAND – APPEAL TO SUPREME COURT – where the respondent applied for development approval for a material change of use for the further development of its land – where the applicant then issued a notice of intention to resume parts of that land – where the applicant subsequently refused the respondent’s development approval application – where the respondent successfully appealed from the refusal decision in the Planning and Environment Court – where the applicant issued a second notice of intention to resume – where the applicant purported to apply to the Minister to resume the land as proposed – where the respondent successfully obtained declarations in the Supreme Court that the decision to take the land was of no effect – where the respondent contends that in such circumstances, the notices of intention to resume are to be taken as having been discontinued – where the respondent applied in the Land Court for the determination of two preliminary questions – where one of these involved the proper construction of s 16(1A) of the Acquisition of Land Act 1967 to determine whether a claim for compensation is limited to out of pocket costs and expenses in a nature of legal valuation and other professional fees reasonably incurred, that are themselves reasonable and which are incurred in connection with considering and preparing a claim following the resumption foreshadowed by the notice as well as any actual damage done to the land by the constructing authority – where at first instance that question was answered ‘yes’ – where the Land Appeal Court determined that such question should be answered ‘no’ – where the applicant seeks leave of this Court to appeal that determination pursuant to s 74(2) of the Land Court Act 2000 – where the central issue is the proper construction of s 16 of the Acquisition of Land Act 1967 and in particular the scope and meaning of the expressions “costs and expenses incurred” and “such costs and expenses” – where the respondent contends that as a direct consequence of the notices, it incurred certain costs and expenses falling within four heads of claim – where those categories encompass additional development approval application costs, losses of rent, incentive costs, and fit-out contributions offered to its tenants, costs incurred by reason of the sterilisation of the development potential and reasonable legal, valuation and other professional costs incurred in responding to the notices of intention to resume and in preparing its claims for compensation – whether leave to appeal to this Court should be granted – whether the Land Appeal Court erred in concluding that the preliminary question should be answered ‘no’ / Acquisition of Land Act 1967 (Qld), s 12(5), s 16, s 17, s 20 / Land Court Act 2000 (Qld), s 74, s 76 / Reprints Act 1992 (Qld), s 7(1)(h), s 8, s 43 / Rules of the Supreme Court (Qld), O 91, r 77, r 81, r 82, r 82A, r 116, r 117, r 118, r 119 / Uniform Civil Procedure Rules 1999 (Qld), ch 17A / Chandris v Union of India [1956] 1 WLR 147; [1956] 1 All ER 358, cited / Re Taylor and Collings’ Contract [1940] VLR 461; [1940] VicLawRp 51, cited / Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456; [2017] HCA 55, applied / Registrar of Titles (WA) v Franzon (1975) 132 CLR 611; [1975] HCA 41, applied / Sykes v Queensland Gas Co [2009] QCA 163, applied / SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34, applied / Tabcorp Holdings Ltd v Victoria (2016) 90 ALJR 376; (2016) 328 ALR 375; [2016] HCA 4, applied
COUNSEL: D R Gore KC, with D A Quayle, for the applicant / R J Anderson KC, with W D J Macintosh, for the respondent
SOLICITORS: Legal Services Department of Moreton Bay for the applicant / HWL Ebsworth Lawyers for the respondent
BODDICE JA: I agree with Doyle JA.
BRADLEY JA: I agree with Doyle JA.
DOYLE JA: This is an application for leave to appeal from the determination by the Land Appeal Court of a preliminary question which concerns the operation of s 16 of the Acquisition of Land Act 1967 (‘the Act’).
Background
The respondent, Genamson Holdings Pty Ltd, is the applicant in the Land Court for compensation in respect of steps taken by the Moreton Bay Regional Council (‘the Council’) to resume certain of its land.
Genamson is the owner of land at Caboolture South part of which has been improved by a retail and shopping centre complex described as “Heritage Plaza”. It had on 30 March 2015 applied for development approval for a material change of use for the further development of that land. It contends that in the ordinary course the Council could be expected to have approved the application within about 195 days.
On 15 August 2016 the Council gave notice refusing the development application, having three days earlier, on the 12 August 2016 issued a notice of intention to resume pursuant to the Act to take part of the land for drainage purposes and for an easement over part of the land.
Genamson appealed from the decision to refuse the development application and by judgment of Rackemann DCJ in the Planning and Environment Court given on 11 September 2017 was successful. It incurred costs and expenses.
The Council then on 12 October 2017 issued a second notice of intention to resume to take the land for drainage and easement purposes. This was subsequently amended in respects I need not further detail.
Consequent upon his earlier judgment, on 1 August 2018 Rackemann DCJ allowed Genamson’s appeal and approved the development application with conditions.
In September 2018 the Council purported to apply to the Minister for the Proposed Resumed Land to be taken.
On 23 April 2020 Genamson was successful in obtaining declarations in the Supreme Court of Queensland that the decision to seek to take the land was of no effect.
Genamson contends that by reason of the Council not having made application or alternatively valid application to the Minister within certain specified periods after their issue, the two respective notices of intention to resume are to be taken to have been discontinued: paragraphs 12 and 20 of the Amended Statement of Facts, Circumstances and Relevant Materials (Statement of Facts) filed by Genamson in the Land Court proceedings.
Heads of Claim
“(a) additional costs incurred to obtain a development approval over the subject land, which it says would not have been incurred if the notices of intention to resume had not been served;
losses of rent, additional letting up costs, additional incentive costs, and fit-out contributions offered to tenants occupying its development on the subject land to address the impact which the notices of intention to resume had on tenant occupancy within the development;
costs incurred by reason of the sterilisation of the development potential of the subject land caused by the notices of intention to resume; and
reasonable legal, valuation and other professional costs incurred in responding to the notices of intention to resume and in preparing its claims for compensation.”
The Separate Question
“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:
out of pocket costs and expenses in the nature of legal, valuation and other professional fees:
reasonably incurred;
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
any actual damage done to the land by the constructing authority.”
At first instance that question was answered “yes”. The form of this question reflected the Council’s responsive Statement of Facts which alleged that upon the proper construction of s 16(1A) of the Act the “ambit of a claim… does not extend beyond” those having the features set out in the preliminary question. The allegations by the Council were not limited to this. As to each category of claim made by Genamson other (additional) bases for rejecting the claim were asserted.
Genamson appealed to the Land Appeal Court. In that Court the Council’s case was that Genamson was only entitled to claim the last of the heads of compensation it claimed (that is category (d) set out above): Reasons [4].1 That position has shifted in the hearing in this Court.
The Land Appeal Court determined that the preliminary question should be answered “no”. The Court went on to explain, at R 61:
“[61] The answer to the preliminary question should be ‘no’. That is because the phrase ‘costs and expenses’ in s 16(1A) should not be construed as limiting a claim for compensation to the recovery of legal costs and disbursements. It is, however, clear that the words give Genamson no right to claim loss or damage. What Genamson can claim as costs and expenses will be a question for the hearing member.”
Nature of Appeal
The Council has sought leave to appeal that determination to this Court pursuant to s 74(2) of the Land Court Act 2000. The right of appeal (subject to obtaining leave) arises on limited grounds, including “error or mistake in law on the part of the Land Appeal Court”: s 74(1)(a).
The application raises a ground which asserts error or mistake in law on the part of the Land Appeal Court. The Court has a discretion whether to grant leave to appeal. The factors which have been said to inform the exercise of that discretion (generally) are there are substantial prospects of success and the error of law is of sufficient importance to justify the grant of leave.2 In this case in my view the issues raised are sufficiently significant, not only to the parties but to others who may seek to make or meet claims for compensation under s 16 of the Act, as to warrant the grant of that leave.
The Acquisition of Land Act
“… the estate and interest of every person entitled to the whole or any part of the land shall thereby be converted into a right to claim compensation under this Act and every person whose estate and interest in the land is injuriously affected by the easement shall have a right to claim compensation under this Act.”
“(4) Any person entitled to claim compensation under this Act in respect of the taking of any land may, upon the revesting of such land or part thereof pursuant to this section, claim from the constructing authority compensation for the loss or damage and (if any) costs or expenses incurred by the person in consequence of the taking of the land and prior to its revesting.”
“16 Discontinuance of resumption before publication of gazette resumption notice
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 the land concerned.
(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.
(1B) The constructing authority and the claimant may agree upon the amount of the compensation to be paid under subsection (1A) or, upon the reference of either of them, such amount may be determined by the Land Court.
(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 that no person shall be entitled to compensation in excess of the value of his or her estate or interest in the land.”
Reasons of the Land Appeal Court
“[13] The ALA contemplates three resumption scenarios, which, listed from most impactful on the landowner to least, are:
a complete compulsory acquisition (ss 18–20) – title in the land is transferred to the constructing authority. The claimant is entitled to be compensated for the value of the land taken plus ‘costs attributable to disturbance’, as defined in s 20(5). These disturbance costs include an amount reasonably attributed to the ‘loss of profits’ resulting from interruption to the claimant’s business that is a direct and natural consequence of the taking of the land (s 20(5)(f)) and ‘other economic losses and costs’ reasonably incurred by the claimant that are a direct and natural consequence of the taking of the land (s 20(5)(g);
an acquisition which is revoked before the amount of compensation payable in respect of the taking of the land has been determined (s 17) - title in the land transfers to the constructing authority but is later revested in the claimant. The claimant is entitled to compensation for ‘the loss or damage and (if any) costs or expenses’ incurred by the claimant in consequence of the taking of the land prior to its revesting (s 17(4));
discontinuance of resumption before the publication of the gazette resumption notice (s 16) – the resumption is discontinued before title to the land is transferred to the constructing authority. The claimant is entitled to ‘costs and expenses’ and any actual damage done to the land by the constructing authority (s 16(1A)).
[14] It is logical that a person whose land is permanently taken is given the greatest right to compensation. A person whose land is taken and then given back is given a lesser right to compensation, but more than simply ‘costs or expenses’. A person who simply lives under a threat of land being taken – but which is not ultimately taken – is limited, in terms of financial costs, to a claim for ‘costs and expenses’.”
“… In any case, the words used in s 16(1A) are clear. Those words deny ‘any claim for compensation ... whatsoever ... for any loss or damage’, subject only to the exceptions of a claim for costs and expenses or actual damage done to the land by the constructing authority. The application of the general rule does not permit this Court to ignore such clear words simply to assuage a sense of unfairness.”
“[40] Finally, we note that the phrase ‘costs and expenses’ occurs in only two sections of the Act, the other being s 14(3):
The costs and expenses in connection with the recording or registration of documents rendered necessary by the taking of the land shall be borne by the constructing authority.
[41] That further demonstrates that the legislature’s use of ‘costs and expenses’ in both provisions was a deliberate choice and is clearly different from the concept of loss or damage.”
“[43] The question remains, however, whether the ‘costs and expenses’ compensable under s 16(1A) should be limited to amounts recoverable under the costs assessment regime provided for in the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’).”
“[52] Notwithstanding that conclusion, we consider the Court below erred in accepting the Council’s submission that, having regard to the operation of s 16(1C), the ‘costs and expenses’ which can be claimed under s 16(1A) are limited to amounts recoverable upon an assessment under chapter 17A of the UCPR.
…
[57] In the absence of the legislative intention relied on by the Council, we consider that s 16(1A) should be construed as allowing a claim for ‘costs and expenses’ which includes costs or expenses that are not amenable to assessment under chapter 17A of the UCPR. This does not mean we accept that ‘costs and expenses’ includes all forms of financial loss. The reasons set out above in addressing Genamson’s first two propositions explain why. But the rejection of those propositions does not mean that the limitation proposed by the Council is the proper construction. As the Court below acknowledged, the owner’s right to be compensated for the effect of the service of the notice of intention to resume or the discontinuance of the resumption should be protected to the fullest extent allowed under the ALA. Put another way, the exception to the prohibition on claims for compensation should not be construed more narrowly than is necessary. We agree that is the correct approach. Unlike the Court below, however, we consider that the construction of s 16(1A) which the Council advances, reflected in the wording of the preliminary question, would unduly restrict the owner’s right to claim compensation.”
“[61] The answer to the preliminary question should be ‘no’. That is because the phrase ‘costs and expenses’ in s 16(1A) should not be construed as limiting a claim for compensation to the recovery of legal costs and disbursements. It is, however, clear that the words give Genamson no right to claim loss or damage. What Genamson can claim as costs and expenses will be a question for the hearing member.”
Construction
“14 The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.” (citations omitted).
The Issues
As the application for leave developed, and in light of the reasoning of the Land Appeal Court, the difference between the parties can be summarised as follows.
The Council:contends that the expression ‘such costs and expenses’ in s 16(1C) operates to define (and accordingly limit) the meaning of the expression ‘costs and expenses incurred’ in s 16(1A);contends that this means the entitlement conferred in s 16(1A) and any determination of compensation under s 16(1B) was limited to:costs and expenses of the kind capable of being subject to assessment under chapter 17A of the UCPR (the Council submitting that this is how the expression used in the Act, referring to taxation by the proper officer of the Supreme Court under the rules of that court determination, is to be construed); and (though not relevant in this case) any actual damage done to the land concerned by the constructing authority.submits that the form in which the question for separate determination had been expressed did not properly reflect the case it was advancing in this Court;submits that if there were any costs and expenses of a kind that fell within any of the categories of heads of claim made by Genamson outside of those which would meet the criteria specified in the chapeau to subparagraph (a) of the question for determination, and which were capable of being subject to assessment under chapter 17A of the UCPR, they would not be disqualified as items claimable under s 16(1A) of the Act.
The case for Genamson is:that the expression ‘such costs and expenses’ in s 16(1C) does not operate to define (and limit) the meaning of the expression ‘costs and expenses incurred’ in s 16(1A). Genamson submits that the “costs and expenses that are recoverable under section 16(1A) are broader than those that may be the subject of taxation (now assessment)”: Respondent’s written submissions [26].3 It was put that “it is the operation of the taxing regime, not the [Act] that limits what part of the ‘costs and expenses’ may be the subject of taxation.”: Respondent’s written submissions at [28].like the Council, Genamson accepted that the expression used in the Act referring to taxation by the proper officer of the Supreme Court under the rules of that court should be understood as now referring to assessment under chapter 17A of the UCPR.that s 16(1C) should be read as if the ability conferred on the constructing authority by s 16(1C) is to subject to assessment ‘such costs and expenses’ as may be capable to assessment under the UCPR, but otherwise leave the entitlement under s 16(1A) to any other costs and expenses unaffected: Respondent’s written submissions at [31], [34].4that in any event, if an assessment under the process of assessment is undertaken, the outcome does not operate to limit the Land Court’s assessment of compensation under s 16(1B) in any way.accordingly, the entitlement conferred in s 16(1A) and any determination of compensation under s 16(1B) extended to:costs and expenses within the meaning of s 16(1A) not limited by the analogue expression in s 16(1C); and(not presently relevant) any actual damage done to the land concerned by the constructing authority.that the question for separate determination had been correctly answered by the Land Appeal Court.
The Preliminary Question
There was no appeal from the order for the separate determination of the question set out above. There is obviously the potential for considerable utility in the determination of preliminary questions, at least where doing so will dispose of significant issues in the case and save time and costs. Nothing said in these reasons should be understood as suggesting this was not a proper case for the statement and determination of a separate question.
However, particular care needs to be taken in the framing of the question to be answered so that the answer in fact fulfils its objective of disposing of significant issues in the case and saves time and costs. The answer ‘yes’ might well have had that effect (though it now appears that would represent a view of the Act which the Council no longer urges to be correct). But a negative answer does not greatly assist in identifying the parameters of what are claimable costs and expenses for the purposes of s 16(1A). For example, the question as answered does not identify what particular feature of the criteria in subparagraph (a) (i) to (iii) renders the proposition raised in the question incorrect? Is it merely the limitation in the chapeau which is not an essential criterion whilst the remaining conditions in subparagraph (a) are necessary? This is not clear from the answer given. Moreover the Land Appeal Court did not merely answer the question but added (possibly referring to the chapeau) the answer was given “because the phrase ‘costs and expenses’ in s 16(1A) should not be construed as limiting a claim for compensation to the recovery of legal costs and disbursements. It is, however, clear that the words give Genamson no right to claim loss or damage.”
Further, and critically in this regard, as is now clear the question and its answer do not reflect the true controversy between the parties. Senior Counsel for the Council has very properly made clear that the Council’s case is not that the question should be answered ‘yes’ in its present form. Moreover, as I explain below, in my view whether or not the categories of claim or parts of the categories of claim advanced by Genamson are outside the scope of s 16(1A) turns on a proper analysis of the facts and the nature of the taxation or assessment processes to which s 16(1C) refers.
Summary of Disposition
For the reasons given below in my view the Land Appeal Court was in error in concluding that the question could and should be answered ‘no’. The question in its present form is not one capable of being answered in a meaningful way at the current stage of the proceedings and having regard to the argument thus far advanced by the parties. If an answer was to be given it would in my view be: ‘not necessarily’. There is no utility in such an answer.
The Court should accordingly vacate the present answer leaving the question not answered and remit the proceedings to the Land Court for determination in accordance with the construction adopted by this Court: s 76 of the Land Court Act 2000.
Section 16
The core consideration is the proper scope and meaning of the expressions “costs and expenses incurred” and “such costs and expenses” in s 16.
Section 16 is problematically expressed. When originally passed it had only two subsections: the first covering what are now subsection (1) to (1C), and the second being subsection (2). Apart from this formatting change, the word “However” in subsection (1C) replaces the original drafting which used the word “Provided”. The parties agree that these changes did not alter the operation of the Act.
Section 16(1A) provides that no person shall have any claim for compensation or other right or remedy whatsoever for any loss or damage. It may be accepted that this exclusion is expressed in wide terms.
The exclusion does not operate to displace the right of compensation afforded under s 12, because no such right has arisen prior to the gazette resumption notice being published. Rather it operates to exclude any claims that might be made by any person for loss or damage alleged to be occasioned by the service of the notice of intention to resume. The provision goes on to confer a right for compensation “for costs and expenses”. This right is conferred only on the person who is served with the notice. There is an additional right to compensation for “any actual damage done to the land” and it is unnecessary for present purposes to consider whether that right is limited to a right by the person who is served with the notice.
There is no explicit requirement that the “costs and expenses incurred” be costs attributable to the service of the notice. Nonetheless in context, in my preliminary view, the subsection requires some causative nexus to be established between the incurring of the costs and expenses and the service of the notice. Additionally the language of that section which displaces any claim for loss or damage is expressed to extend to such damages “alleged to have been occasioned (directly or indirectly) by the service of the notice”. The claim for costs and expenses incurred is stated to be something excepted from that prohibition. This suggests it is an exception which also applies to the costs and expenses incurred directly or indirectly as a result of service of the notice. It is unnecessary to express a concluded view on this for this application for leave.5
Section 16(1B) provides a mechanism for the determination of the amount of compensation to be paid. It does not define the parameters for the determination of that compensation, that being something defined in s 16(1A); subject perhaps to s 16(1C).
Section 16(1C) provides a limited different mechanism for the determination of something. It is a mechanism that can only be engaged by the constructing authority. It is limited to the assessment of “such costs and expenses” and therefore it is plainly not intended to be a means for the determination of such part of any claim for compensation that may relate to “any actual damage done to the land.”
Ordinary Meaning of Costs and Expenses
Putting aside for the moment any limitation to be drawn from s 16(1C), the expression “costs and expenses incurred” in my view should be taken to refer to outlays incurred (whether yet paid or not). While the context might cause these words to have different meaning (for example to capture economic or opportunity cost), the normal meaning of these words is of an outlay or expenditure made or to be made. Macquarie Dictionary’s first definition of the noun ‘cost’ is as the price paid to acquire, produce, accomplish or maintain anything; and the noun ‘expense’ is a cost or charge; the Oxford Dictionary is to like effect:7 see also Re Taylor and Collings’ Contract [1940] VLR 461 at 465; Chandris v Union of India [1956] 1 WLR 147; [1956] 1 All ER 358.
The drafter of the Act differentiated between cost and expenses (on the one hand) and other concepts such as loss or damage (s 16(1A); s 17(4)); and loss of profits (s 20(5)(f)) for example. Plainly there may be overlap of the elements comprising these categories, such that while costs and expenses incurred may be relevant to the assessment of loss or damage, they are not the same thing. The right to compensation extends no further than to costs and expenses and not losses or damage or loss of profits.
Whilst defined terms have been employed by the drafter for the meaning of the expression “costs attributable to disturbance” none of those expressions has been employed in s 16 to limit the concept of “costs and expenses incurred.”
Again, putting aside for the moment s 16(1C) the remaining context of the Act does not suggest these words ought to be given a meaning different from their normal or usual meaning.
In my view no assistance is derived from consideration of the different and diminishing regimes provided for compensation to various claimants depending on how advanced the process for resumption may be. The position least progressed along the process of the compulsory acquisition of land is that provided for in s 16 (and the entitlement to compensation provided for in that section is of narrower scope than provided for in s 20 or s 17). But that consideration does not lead to or necessitate limiting the scope of the words ‘costs and expenses incurred’.
Nor does consideration of the purpose of the Act assist in limiting the ordinary meaning of the words used in s 16(1A). The evident purpose of the Act is to facilitate (for the public benefit) compulsory acquisition of land while providing for compensation to those affected. It does not impair the fulfilment of that purpose to require a constructing authority, which discontinues the resumption of land, to pay the costs and expenses incurred by the recipient of the notice of intention to resume subject only to those costs and expenses having whatever causative nexus with the receipt of the notice as is required by s 16(1A).
Context provided by s 16(1C)
It is necessary, however, to take account of s 16(1C). The subsection at least has the effect of authorising the proper officer to undertake an assessment of costs and expenses if that course is invoked by the constructing authority. Chapter 17A of the UCPR applies to costs to be assessed “under an Act, these rules or an order of the court” and the Act, by s 16(1C) accordingly permits recourse to that Chapter.
The reference to ‘such costs and expenses’ in s 16(1C) as a matter of language refers to the only other reference to costs and expenses; namely those in s 16(1A).
It is, of course, necessary to construe the Act as a harmonious whole and more specifically, unless there were some contextual indications to the contrary, to give the expression ‘costs and expenses’ in s 16(1C) the same meaning as in s 16(1A).8
Parliament would seem to have had in mind that taxation by the proper officer (now assessment) would be an appropriate mechanism for determining the amount of all of the costs and expenses described as ‘such costs and expenses’. That is a reason in my view for construing the expression “costs and expenses incurred” in s 16(1A) as not extending to costs and expenses, if any, which are not capable to assessment under the UCPR.
It was not contended by Genamson that the expression ‘such costs and expenses’ is to be understood as referring to all such costs and expenses referred to in s 16(1A), and that the function of s 16(1C) was merely to bring the assessment within the scope of UCPR r 678(1). For that reason it is undesirable for me to express any concluded view on that approach. But to construe s 16(1C) as referring to all such costs and expenses referred to in s 16(1A), might arguably mean that:s 16(1C) mandates the assessment to in fact deal with all costs and expenses (whether or not the process otherwise would allow it); or alternatively, if for whatever reason the process cannot be adapted to do so, that the right conferred in s 16(1C) is not available to the constructing authority.
However, the construction urged by Genamson is that s 16(1C) is to be read in effect as if it stated ‘such of the costs and expenses as are capable of assessment pursuant to the UCPR’. If that construction was correct then the preliminary question should be answered ‘no’. This is not something discussed in the Land Appeal Court’s reasons (which additionally does not directly address the Council’s contention as to the significance of the word “such” in s 16(1C)).9
In my view Genamson’s construction ought not be accepted.
First, it does violence to the words used. The word ‘such’ is employed to refer back to something already mentioned in the section, not to identify a part of those which fall within the scope of the process identified in the following words.
Taxation by Proper Officer
The reference to taxation of costs by a court officer is to a regime which no longer applies under the UCPR but which applied under the former Rules of the Supreme Court (Order 91). Generally:It was a mechanism for the assessment of the costs and disbursements.The mechanism was available for dealing with the costs of court proceedings (payable by one party to another) but was not limited to them. It also allowed for taxation of lawyers’ costs to be paid by trustees, or receiver, and also for claims for costs by lawyers to their clients (or other persons chargeable with the bill) under the Costs Act 1867 (Qld) or the Solicitors Act 1891 (Qld).It did not determine the entitlement to costs but rather sought to assess the quantum of the entitlement derived by the relevant agreement or court order.On a taxation of legal costs the taxing offer had power to disallow costs which did not appear to the taxing officer to be necessarily or properly incurred in certain respects: see e.g., Or 91 r 81 and r 82. The taxing officer was then directed to allow all costs, charges and expenses as shall appear to have been necessary, proper for the attainment of justice or defending the rights of the party whose costs are to be taxed: Or 91 r 82A. The role accordingly extended beyond the mere verification of the amount of the outlay or fee for professional service.The taxation process is one under which the taxing officer has broad powers of investigation in that regard including to summons and examine witnesses, require the production of books and papers: Or 91 r 77.It provided for the taxing officer to state the outcome on the bill or by certificate: Or 91 r 116, followed by a right of objection and review if appropriate by the taxing officer: Or 91 r 117-119.Finally it allowed for review by ‘a Judge in Chambers’ of the taxing officer’s decision on the objections made to the taxing officer but the taxing officer’s “certificate…. shall be final and conclusive as to all matters which shall not have been objected to in a manner aforesaid”: Or 91 r 119.
The form of the rules themselves do not suggest they were drafted in order to determine the categories of costs and expenses claimed in these proceedings (other than the fourth category). This is one, and indeed a significant, indicator that s 16(1A) is not directed to costs and expenses other than those in the fourth category.
On the other hand, the taxation process is one which could be employed at least to identify such outlays and have an assessment undertaken of the quantum incurred. The power to summon witnesses and call for production of documents would facilitate this.
For present purposes it is enough to note that in my view the reference in s 16(1C) to taxation does not appear to be an obstacle to the use of the taxing process for the determination of the costs and expenses in all categories in Genamson’s claim.
The taxing officer’s decision is binding only to the extent not objected to and ultimately to any disputed amount, the Land Court is to determine the compensation to be paid. Put differently, having fully complied with s 16(1C) the costs and expenses incurred would have been taxed, but that process has produced costs and expenses in amounts in respect of which the parties are then bound and others (assuming objection) in amounts in respect of which they are not bound.
The Assessment Regime
It is common ground that s 16(1C) is to be construed as if now referring to the process of assessment of costs by a costs assessor that has replaced the process of taxation by the proper officer. This is certainly consistent with the general approach of construing statutory provisions as ‘always talking’ in the sense of not having their meaning set at the date of their commencement but rather as circumstances dictate from time to time.
Under the UCPR the process of taxation of costs has been removed and replaced with a process of assessment. Generally that is to be conducted by a costs assessor (who can be appointed by the registrar if needs be) or the registrar. Powers similar to those in Or 91 r 77 are conferred in the registrar and may be conferred on costs assessors and a process (a different one) for objections to assessments is provided for. Unlike Order 91, the registrar is to make an order based on the assessor’s certificate, which is enforceable as a judgment of the court: R 740. That judgment can be stayed pending review by the court which again is limited to matters to which objection had been taken: R 742.
Again the assessment process is one which would appear to be able to be employed to assess the costs and expenses in all categories in Genamson’s claim. As before, having fully complied with s 16(1C) the costs and expenses incurred would have been assessed, but that process has produced costs and expenses in amounts in respect of which the parties are then bound and others (assuming objection) in amounts in respect of which they are not bound.
Summary on s 16
Section 16(1A) gives Genamson a right to claim costs and expenses, which means outlays (whether or not yet paid). The incurring of those outlays will likely require a nexus with the giving of the notice of intention to resume the precise content of which has not been the subject of any determination in the proceedings to date.
I would not accept the approach to the construction of section 16(1C) that it is to be read as if it provided that the constructing authority may have such of the claimed costs and expenses as are amenable to assessment dealt with by assessment under the UCPR with the balance of any costs and expenses to be assessed by the Land Court pursuant to s 16(1B). As a matter of the language used, the reference in s 16(1C) to “such costs and expenses” refers to the costs and expenses which are referred to in s 16(1A) and perhaps limits the construction of 16(1A). Whether in fact there is any limitation that flows from this depends upon matters not as yet addressed.
It is undesirable that the answer to the question, which in my view ought not have been answered ‘no’, remains undisturbed. No party contends now that the correct answer is ‘yes’. It could not be answered ‘no’ without also clarifying which of the criteria for a claim identified in the question is not necessary, and without resolving the further construction and factual issues adverted to above. In particular this requires consideration of whether, as to the items of claim outside the items identified in the question, they were capable of assessment under the regime of chapter 17A of the UCPR. The preferrable answer to have been given by the Land Appeal Court on the arguments presented to it, as I have said, was: ‘not necessarily’. There is no utility in giving such an answer.
For those reasons in my view leave to appeal should be granted. Further, the appeal ought to be allowed in part; namely by setting aside the answer to the preliminary question. That part of the appeal which sought to reinstate the Land Court decision should not be allowed. The matter should then be remitted to the Land Court.
At the conclusion of the hearing of the appeal both parties accepted that costs should follow the event. If my view prevails as to the disposition of this application and the appeal, then the parties should be afforded a further opportunity (in a short period) to consider what orders for costs should be made. This is because the outcome is not one in which the event can necessarily be identified clearly.
Conclusion
Genamson Holdings Pty Lid v Moreton Bay Regional Council [2025] QLAC 2 (Reasons or R). ↩
Sykes v Queensland Gas Co [2009] QCA 163 at [24]-[29]. ↩
Appeal transcript T1-17 lines 15 to 23. ↩
Appeal transcript T1-20 line 45 to T 1-21 line 10. ↩
Senior Counsel for Genamson did not accept that the section necessarily was to be understood as requiring that the claimed costs and expenses were incurred directly or indirectly as a result of service of the notice: Appeal transcript T1-22 line 37 to T1-23 line 8. ↩
Reprints Act 1992 (Qld), s 7(1)(h), s 8, s 43. ↩
The first definition of the noun ‘cost’ is as ‘an amount that has to be paid or spent to buy or obtain something” and of ‘expense’ is ‘the cost required for something; the money spent on something’. ↩
Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456 at [21] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ); Tabcorp Holdings Ltd v Victoria (2016) 328 ALR 375 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ); Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618 (Mason J with whom Barwick CJ and Jacobs J agreed). ↩
Genamson contended the substance of the point was considered by the Land Appeal Court at R [55] and R [56]. I do not read the Court’s reasons in that way. ↩
Moreton Bay Regional Council
Genamson Holdings Pty Ltd [2026] QCA 23
(2017) 262 CLR 456
(1975) 132 CLR 611
(2016) 90 ALJR 376
(2017) 262 CLR 362
(2016) 328 ALR 375
Leave to appeal granted; appeal allowed only to the extent of setting aside the answer to the preliminary question; matter remitted to the Land Court for further determination according to law; parties to file and serve any costs submissions, not exceeding five pages, within seven days of delivery of the reasons.
The section does not make clear whether the entitlement of the constructing authority can be exercised at any time, and in particular whether it can be exercised once a party has already referred the determination of the amount of compensation to the Land Court. Neither party addressed this contention save briefly in answer to some question from the bench, and neither suggested the answer was determinative of the construction of s 16 as a whole. As the matter was not the subject of argument I will not further comment on this issue.
The concluding phrase of subsection (1C) commencing with the words “and no person shall be entitled” is a qualification detached from the preceding context of subsection (1C). It is not directly engaged in the present case, but that qualifying expression is intended to apply as a qualification to the amount of compensation to be determined under s 16(1B) at large and not simply an aspect of the assessment of “costs and expenses incurred” if they are to be determined under s 16(1C). Its presence on subsection (1C) rather than as a part of s 16(1) as initially enacted is the result only of a formatting alteration which is not to be taken to affect the construction of the Act.6
Nor is there any absurdity in construing the words according to their usual meaning. Indeed the converse is the case. A notice of intention to resume is a notice that the constructing authority proposes to take land: s 7(1). It is to allow time for the recipient to give a notice of objection: s 7(3)(d) with a process for dealing with any objection. The constructing authority has 12 months after serving that notice to apply to the Minister to take the land: s 9. The process is thus not always a quick one. It can readily be accepted that Parliament would have had in mind that recipients of the notice might take steps as result of the receipt of the notice which involved cost or expense incurred (and not necessarily limited to legal or related costs). Section 16(1A) recognises that likelihood and confers on the recipient of the notice a right to compensation.
Accordingly, putting aside the effect of s 16(1C), whether claims fall within the scope of s 16(1A) is to be assessed by considering whether they are:costs or expenses incurred, being an outlay (paid or to be paid);by the recipient of the notice;with whatever nexus (if any) is required by the section with the service of the notice of intention to resume or the discontinuance of the resumption.
In its Statement of Facts Genamson identified the four categories of its claim in ways which may be intended to identify them as having some or all of those features.
As to the first category, namely additional costs incurred to obtain a development approval over the subject land, these are dealt with in the Statement of Facts [24], [26]. On the face of the Statement of Facts, these would appear to be capable to falling within the scope of the expression costs and expenses incurred as discussed above.
As to the second category, these are identified as including losses of rent, additional letting up costs, additional incentive costs, and fit-out contributions offered to tenants occupying its development on the subject land to address the impact which the notices of intention to resume had on tenant occupancy within the development: Statement of Facts [27]. On its face some of these would appear to be capable to falling within the scope of the expression costs and expenses incurred as discussed above. On the limited information in the Statement of Facts it is difficult to identify the loss of rent as being a cost or expense.
As to the third category, namely costs incurred by reason of the sterilisation of the development potential of the subject land caused by the notices of intention to resume, these are dealt with in the Statement of Facts [30]-[31]. It is alleged that because of the issue of the notices Genamson had to hold the land to be resumed as vacant non-productive land and during this time incurred rates, land tax and interest which otherwise could have been recovered by the development of the land. A real issue may be whether the service of the notices produced a delay in realisation of receipts to reimburse it for those expenses, rather than the expenses themselves, such that the loss of the receipt is not a cost or expense and not compensable under s 16(1A). The facts, once better explored, may cast events in a different light.
As to the fourth category, namely reasonable legal, valuation and other professional costs incurred in responding to the notices of intention to resume and in preparing its claims for compensation: Statement of Facts [33]-[35]. On the face of the Statement of Facts these would appear to be capable to falling within the scope of the expression costs and expenses incurred as discussed above.
Second, the mechanism provided for in s 16(1C) would be far less utile if, as to the species of things identifiable as costs and expenses incurred, it was possible to have two mechanisms to calculate them: one under s 16(1C) and one under s 16(1B) with the line between the two not necessarily being a clear one.
Third, it presupposes that which has not been demonstrated, namely that there is a material group of costs and expenses which fall within the prima facie wide language of s 16(1A) but which are not capable of assessment under chapter 17A of the UCPR. If the scope of assessment was so narrow as to suggest that to limit s 16(1A) as if the expression was defined by s 16(1C) and the assessment process would cut across the fulfilment of the purpose of the Act then that would be a powerful reason to reject that construction. But no attempt has been made to demonstrate that is the case.
Moreover, it appears inconsistent with the conclusion of the Land Appeal Court at [48], which seems to suggest that “there is no reason why a costs assessor could not undertake the … exercise in assessing an entitlement under s 16(1A)”. There was some limited consideration of the assessment process in the Land Appeal Court: R [47]-[51]. The Land Appeal Court accepted that the process of assessment sat somewhat uneasily with the right to recover costs and expenses under s 16(1A), but did not find it could not apply. Indeed as just mentioned the Land Appeal Court observed to the contrary.10 As discussed below, in my view the assessment process does not operate in such a limited or narrow way that it is not capable to being used to assess costs and expenses of the kind likely to be relevant to a claim under s 16(1A) and indeed as claimed in this case.
In favour of its construction Genamson urged that s 16(1C) is a mere mechanism and should not operate to confine the right to compensation conferred by s 16(1A).11 Section 16(1C) does provide a mechanism for the determination of the costs and expenses. The identification of s 16(1C) as a mechanism does not, in my view, displace the conclusion that the language used in that mechanism in referring to ‘such costs and expenses’ assists in the construction of the expression in s 16(1A). On the view I have taken, the effect may not be a limitation at all on the scope of the items claimable under s 16(1A) because of the ability of the mechanism to in fact be applied to the assessment of costs and expenses of the kinds the subject of the claim by Genamson.
As mentioned, no party addressed this Court on the scope of the process of taxation or assessment nor its application to any facts (which themselves had not been examined). These matters not having been fully addressed it is neither possible nor desirable that this Court express any concluded view as to specific items and whether they are able to be the subject of the assessment processes. However, it is necessary to at least touch on the processes in order to identify what I consider is the proper way to deal with the application for leave.
Nonetheless the Land Appeal Court proceeded, at [52], to reject to contention that s 16(1C) operated to limit the ‘costs and expenses’ which can be claimed under s 16(1A) to amounts recoverable upon an assessment under chapter 17A of the UCPR. ↩
On the appeal it was put that the contrary would be to have the tail wag the dog. ↩