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Queensland Judgments
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  • Unreported Judgment

Toowoomba Regional Council v Wagner Investments Pty Ltd

 

[2020] QCA 225

SUPREME COURT OF QUEENSLAND

CITATION:

Toowoomba Regional Council v Wagner Investments Pty Ltd & Anor [2020] QCA 225

PARTIES:

TOOWOOMBA REGIONAL COUNCIL

(applicant)

v

WAGNER INVESTMENTS PTY LTD

ACN 011 055 271

(respondent)

MARCOOLA INVESTMENTS PTY LTD

ACN 103 682 382

(respondent)

FILE NOS:

Appeal No 7008 of 2019

P & E No 178 of 2017

P & E No 179 of 2017

P & E No 181 of 2017

P & E No 182 of 2017

P & E No 183 of 2017

P & E No 184 of 2017

P & E No 185 of 2017

P & E No 186 of 2017

P & E No 189 of 2017

P & E No 675 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Planning and Environment Court Act – Further Order

ORIGINATING COURT:

Planning and Environment Court at Brisbane[2019] QPEC 24 (R S Jones DCJ)

DELIVERED ON:

16 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Fraser, Morrison and Mullins JJA

ORDER:

The respondents must pay two-thirds of the appellant’s costs of the application for leave to appeal and the appeal.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – PARTIAL SUCCESS – where the Council appealed against the refusal of the primary judge on the appeal to the Planning and Environment Court to set aside the stormwater infrastructure charges and some of the traffic trunk infrastructure charges – where one of the grounds of appeal was that the legal approach of the primary judge was in error – where the Council succeeded on the appeal in the reinstatement of the traffic trunk infrastructure charges only and did not obtain leave in respect of the ground based on the legal approach of the primary judge – where considerable time in the hearing of the application for leave to appeal was spent considering the legal approach of the primary judge – whether the outcome of the appeal should be characterised as “contestable” – whether the Council should recover the costs for leave to appeal and the appeal

Firebird Global Masterfund II Ltd v Republic of Nauru (No 2) (2015) 90 ALJR 270; [2015] HCA 53, cited

Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; [2013] HCA 53, cited

Toowoomba Regional Council v Wagner Investments Pty Ltd & Anor [2020] QCA 191, related

COUNSEL:

D R Gore QC, with M J Batty, for the applicant

R S Litster QC, with L V Sheptooha, for the respondents

SOLICITORS:

A J & Co Lawyers for the applicant

QuDA Law for the respondents

  1. [1]
    THE COURT:  When the court published its reasons in Toowoomba Regional Council v Wagner Investments Pty Ltd & Anor [2020] QCA 191 (the reasons), the parties were invited to file written submissions on the appropriate costs orders.  They have now done so.
  2. [2]
    We will use the same designations for the parties that were used in the reasons.  The Council’s primary submission is that the respondents should be ordered to pay the Council’s costs of the application for leave to appeal and of the appeal.  If this primary submission does not succeed, the Council’s alternative submission is that it should be deprived only of a relatively small proportion of its costs, say no more than 20 per cent, on the basis the Council’s success in the proceeding was substantial and that should be reflected in the Council’s recovery of a substantial amount of its costs.
  3. [3]
    On the basis each party achieved a measure of success, the respondents characterise the outcome of the application for leave to appeal and the appeal as “contestable” which is to borrow a description used by Kiefel and Keane JJ in Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 at [241] and by the court in Firebird Global Masterfund II Ltd v Republic of Nauru (No 2) (2015) 90 ALJR 270 at [6].  The respondents therefore submit that it is appropriate that there be no order as to costs.
  4. [4]
    There was no dispute between the parties as to the matters of principle that apply in determining the question of costs.
  5. [5]
    The court invited submissions on costs due to the parties’ mixed success on the appeal (at [116] of the reasons).  The Council was not granted leave to argue there was an error in the legal approach of the primary judge to the appeals in the P & E Court, the Council was not successful in overturning the decision to set aside all stormwater infrastructure charges, but the Council was successful in overturning the decision in relation to the traffic trunk infrastructure charges.  There was no appeal by the respondents.
  6. [6]
    The monetary outcome of the appeals is relevant.  The stormwater charges that were set aside in the P & E Court amounted to $1,127,228.75 (and that remained the position), and the traffic trunk infrastructure charges that were reinstated amounted to $965,910.28.
  7. [7]
    The Council had to pursue the appeal in order to recover the significant quantum for the traffic trunk infrastructure charges.  That has to be balanced, however, against the not insignificant time spent in connection with the application for leave to appeal on the Council’s ground for which leave to appeal was not granted concerning the legal approach to the appeals in the P & E Court and the reasons for why that leave was not granted (at [74] of the reasons).
  8. [8]
    In view of the significant monetary success for the Council in the appeal, the outcome should not be characterised as “contestable”.  The starting point is therefore that the general rule is that costs should follow the event, but in the circumstances of this matter, some deduction should be made for the time spent on ground 1 and, to a lesser extent, the lack of success the Council had in relation to the stormwater charges.
  9. [9]
    The costs order should be:

The respondents must pay two-thirds of the appellant’s costs of the application for leave to appeal and the appeal.

Close

Editorial Notes

  • Published Case Name:

    Toowoomba Regional Council v Wagner Investments Pty Ltd & Anor

  • Shortened Case Name:

    Toowoomba Regional Council v Wagner Investments Pty Ltd

  • MNC:

    [2020] QCA 225

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Morrison JA, Mullins JA

  • Date:

    16 Oct 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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