Australia: Cost implications for amended claims for compensation in Queensland

Clayton Utz Insights

Key Points:

When a claimant amends a claim for compensation, what are the cost implications for the constructing authority? Recent Queensland Land Court decisions have taken different approaches.

A claimant is entitled to reasonable legal, valuation and other professional fees for preparing a claim for compensation.

When a claimant amends a claim for compensation, what are the cost implications for the constructing authority? Recent Queensland Land Court decisions have taken different approaches.

The approach taken by the Land Court in Inglis v State of Queensland makes it difficult for a constructing authority to prove that professional fees incurred were not reasonable. However, the decision in Cupo v Chief Executive, Department of Transport and Main Roads took a different approach and set a higher burden for the claimants.

Lomin Holdings Pty Ltd as TTE v Brisbane City Council gives some comfort to a constructing authority that if a claimant amends a claim during court proceedings then the constructing authority may be able to recover costs thrown away prior to the amendment.

Inglis v State of Queensland (No 2) [2014] QLC 7

The applicants' previous solicitors submitted a claim for compensation in October 2010. On 26 November 2012, the applicants' new solicitors filed another claim for compensation that was not expressed as an amendment of the first claim.

The second claim for compensation included a claim for professional fees in the amount of $189,645.09, which included solicitors' fees ($73,062.10), counsel fees ($42,724.00), valuation fees ($42,572.24), town planner fees ($20,509.50), agricultural scientist, soil and water fees ($10,227.25) and traffic engineering fees ($550). The State of Queensland accepted that the traffic engineering costs were reasonable but disputed the remainder of the disturbance costs.

The applicants' solicitor gave evidence about the legal fees. The solicitor's costs included 10 or 11 conferences with counsel, two site visits with counsel and experts, drafting and settling letters of instructions to three new experts and reading the file of the previous solicitor that amounted to $7,899.76.

The solicitor stated in evidence that all the costs were necessarily and properly incurred and that the costs were conservative, given the issues involved.

The State had made an open offer of $60,000 for disturbance items and had prepared a table of rates and hours to demonstrate why $60,000 was a reasonable amount. However, the Land Court stated that the $60,000 was not supported by any evidence "such as might have been given by a cost assessor" and that there was no reason not to accept the solicitor's uncontracted sworn evidence.

The claim for disturbance in the amount of $189,645.09 was allowed by the Land Court.

With respect, a cost assessor has no expertise in assessing whether or not work undertaken to prepare a claim for compensation was necessary or reasonable. The pitfalls of attempting to use a cost assessor are discussed in the case below. Further, constructing authorities are in a good position to assess the reasonableness of professional claims because they deal with them on a regular basis.

Cupo v Chief Executive, Department of Transport and Main Roads [2014] QLC 19

The original claim for compensation dated 1 September 2008 included a disturbance claim for legal, town planning and valuation costs in the amount of $22,408.48. In September 2011 the applicants'' solicitor served an amended claim for compensation in the amount of $367,350.34 which included solicitor's fees ($159,354.83), Counsel's fees ($129,970.50), town planning fees ($45,498.01), KPMG tax lawyers' fees ($7,227) and valuer fees ($25,300).

When the claim was referred to the Land Court, the claimants' solicitor, in an affidavit, claimed a revised figure for disturbance in the amount of $373,394.14.

The claimants sought to provide evidence of the reasonableness of the costs incurred by way of an affidavit from a costs assessor (the claimants had the same legal team that was in Inglis). The Department objected and sought disclosure of six documents listed in the costs assessor's affidavit, including an advice from the claimants' counsel. The Land Court held that the costs assessor's affidavit could not be admitted into evidence until disclosure of the requested items was made. The claimants subsequently withdrew the affidavit and the solicitor gave evidence.

The Land Court held that the claimants had to establish the reasonableness of the actions taken and the reasonableness of the charges incurred in the context of making a claim for compensation as distinct from preparing for trial. The claimants had already made a claim for compensation so it needed to be considered whether the action taken was the result of "improved advice" as described in the State of Queensland v Pajares. The Land Court stated that, as the claimants did not produce counsel's advice and other advices referred to in the costs assessor's affidavit, it was impossible for the Department to exercise the right to test the reasonableness of obtaining the advice and the costs incurred.

The respondent had given the Land Court a list of decided cases with a summary of disturbance items, however this information was rejected by the Court.

The Land Court held that "asserted claims for disturbance do not amount to uncontracted evidence but are simply not adequate evidence where the need for improved advice is in issue and the advice was not produced". This appears to be a different test than was required for the amended claim in Inglis.

The Land Court held that the claimants did not discharge their onus of proof in relation to the disturbance items and awarded an amount of $22,408.48 for professional fees based on the original claim for compensation.

Lomin Holdings Pty Ltd as TTE v Brisbane City Council [2014] QLC 11

The claimant filed an originating application in June 2012 which included a claim of $1,240,000 for land.

On 5 September 2012, the claimant filed an amended originating application. The claim for land increased to $1,340,000. On 9 October 2012, the claimant filed a response to Council's request for further and better particulars of the claimant's statement of facts, issues and contentions. Council filed its response to the claimant's statement of facts, issues and contentions on 9 November 2012.

On 9 August 2013, the claimant filed a further amended originating application. The claim for land was reduced to $681,000.

Council brought an application for costs thrown away as a result of the claimant's significant amendment to its compensation claim.

The claimant resisted the application on two grounds. The first ground was the failure of Council to engage in without prejudice discussions. The second ground was that the claimant had relied on the advice of a "respected valuer". Both grounds were rejected.

The Land Court stated that the claimant is obliged to file a properly formulated claim and that there was no reason why Council should be expected to bear the costs thrown away by the amendment. However, the Land Court found that not all the costs had been thrown away and that much of the work done remained relevant to the current claim.

The claimant was ordered to pay 50% of Council's costs of preparing a request for particulars, a response to the claimant's statement of facts, issues and contentions, all Court reviews prior to 13 August 2013 and the application for costs, such costs to be assessed on a standard basis.

Future implications

The Inglis decision is currently the subject of an appeal by the State of Queensland to the Land Appeal Court. If the professional fee claim is upheld, then to prove a claim for reasonable fees each claimant which simply get its solicitor to give evidence that the fees were reasonable. The onus will then be on the constructing authority to prove that the fees were not reasonable or not reasonably incurred. This will lead to all sorts of issues for constructing authorities, particularly when the Land Court has rejected an assessment (based on many cases and years of experience) by the constructing authority of reasonable fees.

We don't think appointing a cost assessor is the answer for either a claimant or a constructing authority.

The Cupo decision is a step in the right direction for constructing authorities who are regularly facing exorbitant claims for professional fees.

We look forward to some direction from the Land Appeal Court.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.