Regional Land Development Corp No 1 Pty Ltd v Banana SC (No 2)
[2009] QCA 164
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- Unreported Judgment
- Regional Land Development Corp No 1 Pty Ltd v Banana SC (No 2)[2009] QCA 164
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Regional Land Development Corp No 1 Pty Ltd v Banana SC (No 2)[2009] QCA 164
Regional Land Development Corp No 1 Pty Ltd v Banana SC (No 2)[2009] QCA 164
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | DC No 2924 of 2007 |
Court of Appeal | |
PROCEEDING: | Miscellaneous Application – Civil |
ORIGINATING COURT: | |
DELIVERED ON: | 12 June 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGES: | Keane, Holmes and Fraser JJA Judgment of the Court |
FURTHER ORDER: | The applicant to pay the second respondent's costs of and incidental to the applicant's application for leave to appeal to be assessed on the indemnity basis |
CATCHWORDS: | PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where proposed appeal entirely without merit – where draft notice of appeal failed to articulate error of law as required by statute – whether costs should be ordered on indemnity basis Millmerran Shire Council v Smith & Anor [2009] QCA 103, cited |
COUNSEL: | The applicant appeared on its own behalf S M Ure for the first respondent D R Gore QC, with J J Haydon, for the second respondent L G Body (sol) for the third respondent G B Wilshier (sol) for the fourth respondent |
SOLICITORS: | The applicant appeared on its own behalf King & Company for the first respondent Bain Gasteen for the second respondent Department of Environment and Resource Management for the third respondent Crown Law for the fourth respondent |
[1] THE COURT: The application by Regional Land Development Corporation No 1 Pty Ltd ("Regional") for leave to appeal against the decision of the Planning and Environment Court ("the P & E Court") was dismissed on 26 May 2009. The second respondent to that application, Velcourt Properties Pty Ltd ("Velcourt"), seeks an order that Regional pay Velcourt's costs of the application assessed on the indemnity basis.
[2] One of the bases of Velcourt's application is that there was no arguable merit in the proposed appeal.[1] Indeed, as Velcourt points out, Regional was entitled to appeal only on the ground of error of law, and its draft notice of appeal did not address the need to articulate the error of law which was said to have occurred.
[3] In these circumstances, Regional's pursuit of an application which was not even framed so as to overcome the statutory limitation on the availability of an appeal to this Court was, as Velcourt submits, quite unreasonable.
[4] This submission must be accepted, and this Court should exercise its discretion as to costs with a view to ensuring that Velcourt is burdened to the least possible extent by the costs which it was forced to bear by the unreasonable conduct of Regional.
[5] The Court orders that Regional pay Velcourt's costs of and incidental to Regional's application for leave to appeal to be assessed on the indemnity basis.
Footnotes
[1] Cf Millmerran Shire Council v Smith & Anor [2009] QCA 103.