Kelly Legal and The Property Law Centre team are pleased to have been able to assist Mr Clive Desbois in his fight against the Department of Transport and Main Roads (‘the Department’) for fair compensation following the resumption of his land for the Mackay Ring Road Project. 

The most recent victory by Mr Desbois is an important one – apart from increasing the amount of compensation paid to Mr Desbois, the decision means that Mr Desbois is the only party entitled to a costs order being made in his favour. Kelly Legal is pleased to confirm that the Land Court has now made orders requiring the Department to pay Mr Desbois’ costs on top of the compensation already payable. 

Summary of the legal battle 

On 12 August 2016 the Department compulsorily acquired land from Mr Desbois offering to pay only $67,000. 

After initial attempts to negotiate with the Department proved unsuccessful, in 2019 Mr Desbois was forced to file an application in the Land Court for adequate compensation. The Department maintained that the land resumed was worth only $67,000.00.

After a lengthy litigation process involving expert evidence and a week-long trial, in late 2021 Mr Desbois was awarded compensation totalling $948,961.00. 

Both the Department and Mr Desbois were dissatisfied with the amount awarded and filed appeals. In its appeal the Department maintained that compensation should only be $67,000, whilst Mr Desbois sought an increase in compensation. 

The Department’s appeal was ultimately dismissed while Mr Desbois’ appeal was granted. The Department was ordered to pay Mr Desbois’ costs of both appeals, and the matter was sent back to the Land Court to be reconsidered. 

After further argument from both sides, on 26 August 2022 the Land Court delivered its reconsidered decision, increasing the amount of compensation to $1,018,385.00 plus interest. 

Effect on court costs 

Importantly, the increased compensation award had the effect of entitling Mr Desbois to apply for his costs of the Land Court proceedings. As a result of the somewhat unusual operation of the Queensland’s acquisition laws and their costs provisions (which have not been amended since 1967), the initial award of compensation did not entitle Mr Desbois to apply for his costs. 

The Land Court has now ordered that the Department pay Mr Desbois’ costs on top of the compensation awarded to him.

Legislative considerations

Kelly Legal considers that it is an appropriate time for a review of Queensland’s compensation laws, particularly regarding the costs provisions. The current position in Queensland (and indeed the position that has existed since 1967) is that unless a landowner beats what is referred to as the ‘mid-point’ between the amount they claim in compensation and the amount the Department (or any other resuming authority) contends is the appropriate amount, then they will have no entitlement to claim their costs of the proceeding. This is an unusual provision, particularly when contrasted to other states such as NSW where the power to award costs is discretionary and it has been held there that:

“…in the ordinary course, a dispossessed owner can expect to obtain the usual order for costs in their [sic] favour, particularly when the amount of compensation determined is greater than that offered by the resuming authority”.

- Jagot J in Simpson v Bagnall [2008] NSWLEC 79.

If a similar approach to that which is employed in NSW was adopted in Queensland, it would go some way to restoring some faith in disposed landowners that they won’t be disadvantaged in seeking fair compensation for land that has been taken from them, and quite often, taken without their consent. It would also not prevent the Court from exercising their discretion and declining to award costs if that is the appropriate course, for example where a disposed landowner may be found to have acted unreasonably or to have rejected an otherwise reasonable offer by the resuming authority. 

In 2014, following what has been described as ‘years of disquiet’ about its acquisition legislation and its enforcement by resuming authorities, the NSW government commissioned David Russell SC (now a judge of the NSW District Court) to carry out a broad review which resulted in a number of positive recommendations being implemented by the government. Given the approaching 2032 Queensland Olympic Games, it’s likely that the number of people affected by land resumptions will only grow. Although it is an issue that touches only a small number of people, those that have been through the resumption process know just how difficult it can be to achieve fair and reasonable compensation. A similar review to that carried out in NSW may provide some assurance to Queensland landowners that if they become part of that small minority, they will not be disadvantaged during the resumption and compensation process. 

Kelly Legal - we’re With You 

Sean and Patrick Kelly of Kelly Legal, together with Errol Morzone QC and Denika Whitehouse of counsel, assisted Mr Desbois throughout the initial proceeding, the appeal process, and the remitted proceeding. 

With offices located in both Mackay and Brisbane, Kelly Legal provides expert guidance to clients throughout Queensland. If you have been affected by a resumption or believe that you may be affected be a proposed resumption, please don’t hesitate to contact a member of our friendly and experienced team to help you through the process.