Philip Usher Constructions Pty Ltd v Cross River Rail Delivery Authority & Anor [2026] QLAC 1

Acquisition of Land Act 1967 (Qld) s 12(5), s 18, s 19, s 20(1), s 20(2), s 20(2A)

Land Court Act 2000 (Qld) s 57

Chief Executive, Department of Transport and Main Roads v Cidneo Pty Ltd [2015] QCA 96; (2015) 207 LGERA 448, cited

Kilmaley Investments Pty Ltd v City of Wanneroo (2019) 240 LGERA 138, distinguished

Philip Usher Constructions Pty Ltd v Cross River Rail Delivery Authority [2025] QLC 18, cited

DR Gore KC, with DA Quayle (instructed by Anderssen Lawyers), for the appellant

RJ Anderson KC, with JS Brien (instructed by Ashurst), for the first respondent

[1] In July 2020, the Cross River Rail Delivery Authority resumed 12,877 cubic metres of land underneath 310 Vulture Street, Woolloongabba.

[2] 310 Vulture Street was made up of 10 separate lots.

[3] The resumption affected 3 of those 10 lots[1], in the south-eastern corner of the land.

[4] D&S Ring Family Pty Ltd (D&S Ring) owned the land. After the resumption it retained all 4,152 square metres of the surface of the land and the significant sub-surface part of the land that had not been resumed.

[5] In August 2021, D&S Ring sold the land to Philip Usher Constructions Pty Ltd (Philip Usher).

[6] In November 2022, D&S Ring assigned its right to claim compensation for the resumption to Philip Usher.

[7] The Authority questioned Philip Usher's entitlement to claim compensation.

[8] Philip Usher sought declarations from the Land Court about its rights.

[9] The Land Court decided that Philip Usher: [2]

(a) does not have a right to compensation; but

(b) may exercise the right to compensation that D&S Ring had as at the date of resumption.

[11] The Authority advances a Notice of Contention, seeking to have the decision affirmed on a ground other than the one relied on by the Land Court.

[12] The Notice of Appeal and the Notice of Contention allege numerous errors in the Land Court's approach.

[13] The position of the parties was refined as written outlines were exchanged and during the hearing before this Court.

(a) the assignment of D&S Ring's right to claim compensation has been validly made;

(b) Philip Usher can be the named claimant; and

(c) compensation must be assessed objectively.

[16] Philip Usher seeks the following substantive orders:[3]

1. Set aside the orders made by the Land Court on 15 August 2025;
2. In lieu thereof, order that, by operation of the Deed of Assignment, Philip Usher has, and may exercise, the right to claim compensation under the Acquisition of Land Act 1967 that was formerly held by D&S Ring in respect of the resumption the subject of Taking of Land Notice (No. 2) 2020 of 10 July 2010.

[17] The Authority says that proposed order 2 is not sufficient to resolve the dispute. It says that that order would leave unresolved, in effect, the metes and bounds of the claim going forward.

[18] The Authority says that who is the "claimant", may influence what that claimant can argue before the Land Court in pursuing its claim.

[19] The Authority says that that is a narrow but important point.

[20] There are issues raised in the Notice of Appeal and Notice of Contention that no longer require determination.

(a) section 4 of the Acts Interpretation Act is irrelevant in this case;

(b) section 20(2A) of the Acquisition of Land Act is irrelevant in this case;

(c) the decision of the Western Australia Court of Appeal in Kilmaley Investments Pty Ltd v City of Wanneroo[4] is a very different case factually and legally and offers no assistance in this situation.

[22] Philip Usher's Notice of Appeal included an argument about it being denied procedural fairness before the Land Court. The way the submissions were presented, it was not necessary for Philip Usher to argue that point before this Court.

[23] The Acquisition of Land Act 1967 applies.[5]

[24] Sections 12(5), 18, 19(1), 20(1) and 20(2) are relevant.

[25] This is a rehearing. The issues raised are questions of law.

[26] The powers of this Court are set out in section 57 of the Land Court Act 2000. That is:

(1) _The Land Appeal Court may do 1 or more of the following - _

(a) suspend the operation of the decision and remit the matter, with or without directions, to the court or tribunal that made the decision to act according to law;

(b) affirm, amend, or revoke and substitute another order or decision for the order or decision appealed against;

(c) make an order the Land Appeal Court considers appropriate.

[27] The reasons below do not reflect the correct analysis for an assignment of rights to claim compensation. There are three ways in which the reasons and outcome went wrong.

[28] First, the Land Court misunderstood the position of Philip Usher as to the assignment. The Land Court understood that Philip Usher had submitted that the assignment created a separate right.[6] It understood that Philip Usher sought to claim compensation in its own right.[7]

[29] That was not and is not Philip Usher's position.

[30] That misunderstanding led to the Court's conclusion that an assignment cannot create a new interest in land or a new right to compensation.[8] It led to the conclusion and declaration that Philip Usher does not have a right to compensation.[9]

[31] Philip Usher has a right to claim compensation. It was assigned that right by D&S Ring.

[32] It does not have a new or unique right of compensation. It has the right to claim compensation that arises from the resumption of D&S Ring's interest in the land.

[33] Second, the Land Court suggested that section 20(2A) of the ALA was a complete answer to the dispute. That provision states:

(2A) However, in assessing the compensation, a contract, licence, agreement or other arrangement (a relevant instrument) entered into in relation to the land after the notice of intention to resume was served on the claimant must not be taken into consideration if the relevant instrument was entered into for the sole or dominant purpose of enabling the claimant or another person to obtain compensation for an interest in the land created under the instrument.

[34] Neither party had made submissions to the Land Court about that provision. There was no evidence before the Land Court about the purpose or intent of the assignment in this case. It was an error for the Land Court to make assumptions and rely on that provision without reference to the parties. In any event, when Philip Usher's case before the Land Court is properly understood, the provision did not apply. No interest in the land was "created under the instrument", being the Deed of Assignment. That instrument merely assigned D&S Ring's right to claim compensation to Philip Usher.

[35] Third, Philip Usher says that the two declarations made by the Land Court are in tension with one another.

[36] It is true that the declarations are discordant. The source of that problem appears to be the misapprehension about whether Philip Usher was pursuing a new or separate right.

[37] On the basis of those errors the Land Court orders ought to be set aside.

[38] The key point of difference turns out to be a concern, on the part of the Authority, that Philip Usher would argue its claim for compensation on grounds that were unusual or unique to Philip Usher.

[39] That is, grounds that the Authority would not have had to confront had the claimant been D&S Ring.

[40] That concern was stoked, in part, by Philip Usher's submission that the assessment of compensation, "is not to be viewed through the eyes of Ring, or viewed as Ring's loss".[10]

[41] What Philip Usher meant by that submission was that the compensation ought to be assessed objectively. That assessment should not be based on any subjective consideration specific to either D&S Ring or Philip Usher.

[42] The land has been affected by the resumption. Some amount of compensation may well be due for that. Whether that is made good (and if so, the quantum of compensation) is a matter for determination by the Land Court.

[43] On an objective assessment of compensation, the Land Court will have regard not only to the value of the resumed land but also to any damage caused by severance of that land from "other land of the claimant", injurious affection of "the claimant's other land" and "the claimant's costs attributable to disturbance": s 20(1) of the ALA.

[44] In the present case, although Philip Usher proposes to bring the claim for compensation in its own name, it does so as the assignee of D&S Ring's rights as claimant. Accordingly, what the Land Court must assess objectively is the amount of any damage caused by severance of the resumed land from other land of D&S Ring and injurious affection of that other land of D&S Ring. That is what falls within D&S Ring's right to claim compensation. That is the right which D&S Ring assigned to Philip Usher. In other words, the Land Court must objectively assess Philip Usher's claim for compensation on the basis that Philip Usher now stands in the position of D&S Ring at the time the right to claim compensation arose.

[45] The costs attributable to disturbance are to be assessed objectively.

[46] Further, as Philip Usher submitted[11] and the Authority accepted, no regard should be had to D&S Ring's subjective intention for the land.

[47] The parties agree that compensation can be assessed with reference to events occurring after the resumption. There is Court of Appeal authority about the extent to which that is permissible: Chief Executive, Department of Transport and Main Roads v Cidneo Pty Ltd.[12]

[48] That ought not be controversial. The damage manifested by severance, injurious affection or disturbance can take time to emerge after the resumption.

[49] Philip Usher has not yet referred its claim for compensation to the Land Court.

[50] When it does so, the Land Court will be tasked to determine the compensation for the July 2020 resumption in accordance with the ALA.

1. The Orders of the Land Court made on 15 August 2025 are set aside;
2. It is declared that:

(a) the Deed of Assignment gives Philip Usher Constructions Pty Ltd ACN 001 008 101 the right to claim compensation under the Acquisition of Land Act 1967 in respect of the resumption effected on Lots 10, 11 and 12 on RP11195 by Taking of Land Notice (No. 2) 2020 of 10 July 2020;

(b) that claim can be made in the Land Court by Philip Usher Constructions Pty Ltd ACN 001 008 101;

(c) that claim is to be assessed objectively on the basis that Philip Usher now stands in the position of D&S Ring at the time the right to claim compensation arose.

1. By 4.00pm on Friday 24 April 2026, the parties may file a written outline of submissions no longer than five pages as to: (1) costs in this Court and (2) the costs of the hearing below.

[1] The resumption affected lots 10, 11 and 12 on RP11195.

[2] Philip Usher Constructions Pty Ltd v Cross River Rail Delivery Authority [2025] QLC 18 at [46] ("Decision Below").

[4] (2019) 240 LGERA 138.

[9] Decision Below at [45](a) and [46](a).

[10] Appellant's Outline of Submissions at [57].

[12] [2015] QCA 96; (2015) 207 LGERA 448 at [33] (Fraser JA) and [56] (Dalton J, as her Honour then was).