Director of Lands and Survey v. Wong Chung Don and Others
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CACV000001/1977
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----------------- Coram: Briggs, C. J. , Huggins, J. A. and Leonard, J. Date of Judgment: 30th June 1977 ----------------- JUDGMENT ----------------- Huggins, J, A. : 1. This was the first appeal brought under s.11 of the Lands Tribunal. Ordinance. It was dismissed and we said we would give our reasons later. 2. At the outset I pointed out two manifest errors in the document which the Crown relied upon as instituting the appeal, errors which could, however, readily have been corrected by amendment. The point taken in the subsequent appeal, namely that the appeal should have been by motion upon notice, was not taken in the present case. I also questioned how the Crown could appeal on the grounds obviously sought to be argued - namely that costs had wrongly been allowed to the Respondents - when costs were by s.12 declared to be in the discretion of the tribunal and an appeal lay only upon a point of law. Counsel conceded that in so far as he had appealed against the order as to costs generally the appeal was incompetent, but he said he would contend that "surveyor's costs" as awarded by the tribunal were not "costs" within the meaning of s.12 and could not be awarded. 3. The material facts can be briefly stated. The Crown resumed land held by the Respondents. We are told this was under the Crown Lands Resumption Ordinance. Offers of compensation were made. The Respondents took professional advice and valuations were obtained. As a result the offers were rejected and the Appellant applied to the tribunal for the assessment of the compensation which ought to be paid. In the event the tribunal awarded some of the Respondents more than had been offered, but two of them each obtained an award equal to the sum he had been offered. The "successful" Respondents were awarded all the costs they had incurred, including the valuer's fees, whilst the "unsuccessful" Respondents had to pay their own costs of the proceedings before the tribunal but were allowed by way of costs the expense of obtaining "an initial valuation report for the purpose of considering the Crown's statutory offer, .... not exceeding the fee fixed by the Royal Institute of Chartered Surveyors' Scale for a valuation in the sum of the amount awarded". 4. Mr. Airey argues that "costs" in s.12 means the costs of conducting the proceedings before the Lands Tribunal and that the surveyor's fees were more in the nature of compensation. He submits with some justification that an owner of property who receives an offer to purchase that property is under no obligation to obtain a valuation, although common sense would probably lead him to do so, and counsel contends that this is therefore an expense which is not related to the fact that the "purchase" here was compulsory. He says, moreover, that if the valuer's fee is allowed as costs which can be awarded by the tribunal every owner whose land is resumed will in future want his claim dealt with by the tribunal so that he can recover that fee. He draws our attention to Minister of Transport v Lee 1965 2 All E.R. 986 in support of his contention that the fee is "compensation", but I do not think it is of much assistance to us. Costs awarded to a party to legal proceedings are themselves a form of compensation and the issue is For what is compensation to be given? 5. Although there is no doubt some force in the argument for the Appellant I think one has to construe the statute as a whole and in the light of the scheme which it lays down. This is not strictly a purchase at all: the Crown resumes the land by virtue of the order of the Governor and, upon the making of the order, the owner is required to submit his claim for compensation. The Legislature has not defined costs nor expressly limited them to "the costs of and incidental to the proceedings before the tribunal". The valuer's fee was something which would not have been incurred at this point in time but for the resumption and, as the term "costs" is wide enough to cover all expenses incurred in litigation or professional transactions, I think it is for the Appellant to show that some narrower interpretation was intended. As the tribunal was given a complete discretion as to "costs" it is difficult to conclude that justice requires the adoption of the narrower interpretation. 6. That does not mean that such costs ought to be allowed in every case and I think the tribunal should in each case consider very carefully whether in all the circumstances the Crown ought to be ordered to pay for independent professional advice of this kind. However, I was of opinion that the matter was within the discretion of the tribunal, and, as it was not argued that if there was a discretion this court should interfere with the exercise of it, it necessarily followed that I was in favour of dismissing the appeal. 30th June 1977 Representation: |