The case of Genamson Holdings Pty Ltd v Moreton Bay Regional Council [2024] QLC 8 concerned an application to the Land Court of Queensland (Court) by Genamson Holdings Pty Ltd (Applicant) for the separate and preliminary determination of two questions regarding the proper construction of section 16(1A) of the Acquisition of Land Act 1967 (Qld) (ALA) pursuant to rule 483(1) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).

The Applicant owns land in Caboolture Queensland, where there is a commercial shopping centre. The land is periodically affected by flooding due to catchment flows and stormwater so the Council sought to resume part of the land for the purpose of creating a regional detention basin in order to assist with flood mitigation.

The two questions posed by the Applicant were as follows (at [13]):

1. "On the proper construction of s.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

(iii) which are incurred in connection with the consideration of and/or in 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."

2. "If the answer to question 1 is 'No', does a 'claim for compensation for costs and expenses incurred', within the meaning of those words as used in s16(1A) of ALA, extend to a claim for the financial loss claimed to have been suffered by the applicant as pleaded?"

The Court considered the relevant principles from the case of Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; (1999) 217 ALR 495 which relate to the circumstances in which an order for a separate question may be determined and found that Question 1 should proceed to a preliminary determination whereas Question 2 should not (see [18], [62], and [63]).

The Applicant is claiming compensation from the Council for costs and expenses, including a range of costs and expenses in addition to the usual legal, valuation, and other professional fees, which it claims were incurred as a result of the two notices of intention to resume issued by the Council (at [8]). In particular, the Applicant is claiming the following costs and expenses (at [9]):

"1. A claim for increased development application costs…;

2. A claim for increased tenancy costs and losses…;

3. A claim for lost holding costs…;

4. A claim for legal and other costs..."

The Council is disputing the Applicant's claim and argues that the costs and expenses claimed by the Applicant are not causally connected to the discontinuance of the two notices of intention to resume issued by the Council, and that the Applicant's claim goes beyond the ambit of a claim for compensation under section 16(1A) of the ALA (see [10] and [11]).

The Applicant, by its application, sought to have the two questions resolved by way of separate and preliminary determinations because they are characterised as "…pure questions of law" (at [16]). The Council argued that the two questions are "…'ultimately questions of mixed fact and law'…which the [Council] says is relevant to the prospects of appeal" (at [16]).

The Court identified the following principles as being pertinent to deciding whether the questions are separate and preliminary questions for determination (at [19]):

"1. the judicial determination of a question … must involve a conclusive or final decision based on concrete and established or agreed facts for the purpose of quelling a controversy between the parties;

2. care must be taken in utilising the procedure … to avoid the determination of issues not 'ripe' for separate and preliminary determination;

3. factors which tend to support the making of an order … include that the separate determination of the question may contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to the disposal of the action or contribute to the settlement of the litigation;

4. factors which tell against the making of an order include that the separate determination of the question may give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial, may result in significant overlap between the evidence adduced on the hearing of the separate question and at trial, or prolong rather than shorten the litigation."

The Court was satisfied that Question 1 is a question "ripe" for separate and preliminary determination because it is a question of law which is capable of being answered conclusively and without reference to any assumptions or findings of fact with respect to the issues in dispute, and that the overall impact on time and costs will potentially be cost neutral (see [58] to [62]).

The Court found that Question 2 is not a question "ripe" for a separate and preliminary determination because there is a potential for the hearing with respect to this question to descend into disputed factual issues which may result in an overlap between the evidence given at the hearing and at the trial, and therefore may prolong the efficient resolution of the matter (at [63]).

The Court held that Question 1 should proceed as a preliminary question for determination and that Question 2 should not proceed as a preliminary question for determination (at [63]).