In Philip Usher Constructions Pty Ltd v Cross River Rail Delivery Authority & Anor [2026] QLAC 1 (Usher (Appeal)), the Land Appeal Court of Queensland (Land Appeal Court) considered the scope of a statutory right to claim compensation assigned after a compulsory acquisition under the Acquisition of Land Act 1967 (Qld) (ALA) (see [1] to [8] and [15] to [19] of Usher (Appeal)). 

The parties accepted that D&S Ring Family Pty Ltd (Previous Landowner) had validly assigned its right to claim compensation to Philip Usher Constructions Pty Ltd (Appellant). The question was whether the Appellant could advance a compensation case based on matters unique to it. The Land Appeal Court set aside the earlier orders of the Land Court of Queensland (Land Court) in the case of Philip Usher Constructions Pty Ltd v Cross River Rail Delivery Authority & Anor [2025] QLC 18 (Usher (First Instance)) and declared that the Appellant could pursue the assigned right in its own name, with compensation assessed objectively as if it stood in the Previous Landowner's position when the right arose (see [15] to [19], [38] to [45] and [51] of Usher (Appeal)).

In the case of Philip Usher Constructions Pty Ltd v Cross River Rail Delivery Authority & Anor (No 2) [2026] QLAC 8 (Usher (Costs Appeal)), the Land Appeal Court set aside the Land Court's costs order and made no order as to costs of either the first proceeding or the appeal because neither party's substantive success was absolute (see [12] to [17] and Orders 1 to 2 of Usher (Costs Appeal)).

In July 2020, the Cross River Rail Delivery Authority (Authority) resumed 12,877 cubic metres of subsurface land beneath land situated at Vulture Street, Woolloongabba, affecting three of the subject property's ten lots. 

The Previous Landowner retained all 4,152 square metres of surface land and the unaffected subsurface land (see [1] to [4] of Usher (Appeal)). In 2021, the Previous Landowner sold the remaining land to the Appellant. In November 2022, it assigned to the Appellant its right to claim compensation for the resumption by the Authority (see [5] to [6] of Usher (Appeal)).

When the Authority questioned the Appellant's right to claim compensation, the Appellant sought declarations from the Land Court (see [7] to [8] Usher (Appeal)). The Land Court declared that the Appellant had no right to compensation by operation of the deed of assignment but could exercise the Previous Landowner's right as at the date of resumption (see [45] to [46] of Usher (First Instance)).

The Appellant appealed and the Authority filed a notice of contention (see [10] to [11] of Usher (Appeal)).

The Land Appeal Court identified three errors in the Land Court's decision (see [27] to [37] of Usher (Appeal)).

First, the Land Court had misunderstood the Appellant as claiming that the assignment created a separate interest in land or a new compensation entitlement. Properly understood, the Appellant relied on the Previous Landowner's existing assigned statutory right (see [28] to [32] of Usher (Appeal)). The Appellant therefore had the right to claim compensation, but no new or unique right. The assigned right arose from the resumption of the Previous Landowner's interest in the land (see [31] to [32] at Usher (Appeal)).

Second, the Land Court had treated section 20(2A) of the ALA as a complete answer without submissions or evidence about the purpose of the assignment. It was an error to rely on assumptions about that purpose (see [33] to [34] of the Usher (Appeal)). The provision was inapplicable on the case properly understood. The deed of assignment assigned an existing compensation right rather than creating an interest in land under the deed (at [34] of Usher (Appeal)).

Third, the Land Court's declarations were conflicting. One denied a right to compensation, while the other permitted the Appellant to exercise the Previous Landowner's right. The Land Appeal Court accordingly set those orders aside (see [35] to [37] and [51] of Usher (Appeal)).

Compensation is assessed objectively, without treating either party's subjective intentions as determinative (see [38] to [46] of Usher (Appeal)).

Section 20(1) of the ALA requires regard to be had to the value of the land taken, severance damage, injurious affection of the claimant's other land and costs attributable to disturbance (at [43] of Usher (Appeal)).

For severance and injurious affection, the relevant "other land" is the Previous Landowner’s other land, not land treated as belonging to the Appellant by reason of its later purchase. Disturbance costs also require objective assessment (see [44] to [45] of Usher (Appeal)).

The Land Court must consequently assess the assigned claim on the footing that the Appellant stands in the Previous Landowner's position at the time the right to claim compensation arose (see [44] and [51] of Usher (Appeal)).

Assignment changes who can prosecute the accrued right; it does not change the interest affected by the resumption or generate a fresh basis of compensable loss.

The parties agreed that events after the resumption may be relevant to assessing compensation (at [47] of Usher (Appeal)).

The Land Appeal Court referred to the case of Chief Executive, Department of Transport and Main Roads v Cidneo Pty Ltd [2015] QCA 96; (2015) 207 LGERA 448 (Cidneo), observing that severance damage, injurious affection and disturbance may only become apparent after the resumption (see [47] to [48] of Usher (Appeal) and [33] and [56] of Cidneo).

Post-resumption evidence may therefore establish consequences of the original acquisition. It does not permit the assignee to substitute its own subjective expectations for the assignor's statutory claim (see [41], [44] and [46] to [48] of Usher (Appeal)).

The Land Appeal Court did not determine an entitlement to any particular amount of compensation. The Appellant had not yet referred the claim to the Land Court, where any quantum will be determined under the ALA (see [42] and [49] to [50] of Usher (Appeal)).

On 19 September 2025, in the case of Philip Usher Constructions Pty Ltd v Cross River Rail Delivery Authority & Anor (No 2) [2025] QLC 24 (Usher (First Instance Costs)), the Land Court ordered the Appellant to pay the Authority's costs of the application on the standard basis (see [7] and Order of Usher (First Instance Costs)).

At first instance, the Land Court treated the Appellant as having unsuccessfully pursued a claim based on its own interest, rather than merely seeking to exercise the Previous Landowner's assigned right. That understanding was displaced by the later appeal (see [6] to [7] of Usher (First Instance Costs) and [28] to [32] of Usher (Appeal)).

On the costs appeal, the Appellant sought the costs of both proceedings, while the Authority sought the appeal costs. Although costs ordinarily follow the event, the Land Appeal Court examined the extent of each party's substantive success (see [8] to [12] of Usher (Costs Appeal)).

The Appellant had obtained orders setting aside the first instance decision, and the Land Appeal Court had accepted that compensation must be assessed objectively (see [13] to [14] of Usher (Costs Appeal)). However, the Land Appeal Court also adopted the Authority's position that the Appellant stood in the Previous Landowner's position when the right arose (see [15] to [16] of Usher (Costs Appeal)).

Characterising the outcome as "contestable", the Land Appeal Court treated each party's mixed success as a compelling reason not to order either to pay the other's costs. It set aside the costs order made in Usher (First Instance Costs) and made no order as to costs of either proceeding (see [12] and [17] and Orders 1 to 2 of Usher (Costs Appeal)).

Proceeding on the parties' agreement that the assignment was valid, the Land Appeal Court held that the Appellant could pursue the assigned statutory compensation claim in its own name (see [15], [31] to [32] and [51] of Usher (Appeal)). Because both parties achieved material success on appeal, neither recovered its costs and the Land Court's earlier costs order was set aside (see [12] to [17] and Orders 1 to 2 of Usher (Costs Appeal)).

A compensation claim must be assessed objectively by reference to the assignor's position when the right arose, although later events may be considered where they reveal the consequences of the resumption. An assignment does not create a new compensable interest. The following key points from the Land Appeal Court's decision are significant and important:

• A validly assigned statutory compensation right may be pursued by an assignee in its own name. 
• The assignment does not create a new or enlarged right to compensation. The assignee stands in the assignor's position at the time the assignor's right to claim compensation arose.
• Severance, injurious affection, and disturbance are assessed objectively by reference to the assigned right. Subjective intentions of the assignor or assignee do not determine compensation.
• Post-resumption events may be relevant where they objectively reveal damage that manifests after the resumption.
• Parties' successful achievement of material outcomes in an appeal can justify no order as to costs even where one party succeeds in having orders set aside.