The case of Genamson Holdings Pty Ltd v Moreton Bay Regional Council (No 2) [2024] QLC 24 concerned an application to the Land Court of Queensland (Court) by Genamson Holdings Pty Ltd (Applicant) for the determination of a preliminary question regarding the proper construction of section 16(1A) of the Acquisition of Land Act 1967 (Qld) (ALA).

The Applicant had previously applied to the Court in Genamson Holdings Pty Ltd v Moreton Bay Regional Council [2024] QLC 8 for the separate and preliminary determination of two questions regarding the proper construction of section 16(1A) of the ALA, which was summarised in our September 2024 article. In short, the Court held that only one of the questions was “ripe” for separate and preliminary determination. That question is as follows (at [5]):

"1: On the proper construction of section 16(1A) of the Acquisition of Land Act 1967 (Qld) (ALA), is a claim for compensation pursuant to that provision limited to:

(a) out-of-pocket costs and expenses in the nature of legal, valuation and other professional fees:

    (i) reasonably incurred;

    (ii) themselves reasonable; and which are incurred in connection with the consideration of and/or the preparation of a claim for compensation following the resumption of land foreshadowed by the notice of intention to resume; and

(b) any actual damage done to the land by the constructing authority.”

The Court considered the proper construction of section 16(1A) of the ALA and held that the answer to the preliminary question is "yes" (at [85]).

The key issue in this case related to the wording in paragraph 1(a) of the question (see [9] and [11]).

The Applicant claimed that the out-of-pocket costs referred to in paragraph 1(a) of the question are not limited to legal and professional costs but also include other types of costs, such as financial costs and loss of profit (at [15]).

The Council disputed the Applicant’s claim and argued that compensation under section 16(1A) of the ALA is limited to costs and expenses, as opposed to loss or damage, or potential loss or damage (at [18]).

The Applicant submitted that there are practical consequences for a landowner after receiving a notice of intention to resume, such as business losses or a failure to realise profits in anticipation of the resumption, and therefore a broader construction of section 16(1A) of the ALA is necessary to allow for compensation for loss and damage (see [71] and [80]).

The Council contended that the primary purpose of section 16(1A) of the ALA is to deny a claim for loss and damage in accordance with the express language of the section, and therefore is directly at odds with the Applicant’s submission. Section 16(1A) of the ALA is as follows [our underlining]:

“16 Discontinuance of resumption before publication of gazette resumption notice

(1A) Service of the further notice shall discontinue the resumption concerned, and no person shall have any claim for compensation or other right or remedy whatsoever against the constructing authority for any loss or damage alleged to have been occasioned (directly or indirectly) by the service of the notice of intention to resume or the discontinuance of the resumption, except a claim for compensation for costs and expenses incurred by the person who was served with the notice and any actual damage done to the land concerned by the constructing authority.”

The Court did not accept the Applicant’s submission on the basis that it was “…contrary to the wording of section 16(1A), which denies compensation for ‘loss or damage’” and “…limits any claim to costs and expenses” (see [80] and [82]).

The Court held that the answer to the preliminary question is "yes" (at [85]). If you would like further guidance on this decision or its implications, please contact our Planning, Government, Infrastructure & Environment team for trusted advice and support.