Lewani Springs Resort Pty Ltd v Gold Coast City Council
[2010] QCA 200
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- Unreported Judgment
- Lewani Springs Resort Pty Ltd v Gold Coast City Council[2010] QCA 200
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Lewani Springs Resort Pty Ltd v Gold Coast City Council[2010] QCA 200
Lewani Springs Resort Pty Ltd v Gold Coast City Council[2010] QCA 200
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Application for Leave Integrated Planning Act – Further Order |
ORIGINATING COURT: | |
DELIVERED ON: | 30 July 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGES: | Chesterman JA, Atkinson and Ann Lyons JJ Judgment of the Court |
ORDER: | Applicant to pay the costs of the first respondent, and of the second respondent, to be assessed on the standard basis |
CATCHWORDS: | PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where Court refused applicant leave to appeal – where application did not raise a question of law – where applicant rejected an offer of compromise – where one member of the Court would have allowed the appeal – where first respondent alleged the application was brought for an ulterior purpose – whether unsuccessful applicant should pay second respondent’s costs on the indemnity basis PROCEDURE – COSTS – RECOVERY OF COSTS – where application did not raise a question of the construction of the first respondent’s planning scheme – where first respondent’s opposition to the application was based on the same grounds as second respondent’s – where first respondent was a proper party to the appeal – where the interests of the two respondents were not identical – whether unsuccessful applicant should pay first respondent’s costs Integrated Planning Act 1997 (Qld), s 4.1.41 Emanuel Management Pty Ltd (in liquidation) v Foster’s Brewing Group Ltd [2003] QSC 299, cited Re Octaviar Ltd (No 8) [2010] QCA 57, cited Tamborine Mountain Progress Association Inc v Beaudesert Shire Council [1995] 2 Qd R 231; [1994] QCA 301, cited |
COUNSEL: | R S Litster SC, with M Williamson, for the applicant C L Hughes SC, with B Le Plastrier, for the first respondent D R Gore, with B D Job, for the second respondent |
SOLICITORS: | Hopgood Ganim Lawyers for the applicant McDonald Balanda & Associates for the first respondent DLA Phillips Fox for the second respondent |
[1] THE COURT: On 11 June 2010 the Court refused the applicant leave to appeal and ordered the parties to make submissions as to costs, with respect to which two questions arose. The first was whether the unsuccessful applicant should pay the second respondent’s costs on the indemnity basis. The second was whether it should pay the first respondent’s costs at all, or costs limited to the amount which would have been incurred in appearing on the application without taking part in the substantive argument.
[2] The second respondent, who was the successful appellant in the Planning and Environment Court, has submitted that its costs should be paid on the indemnity basis. The applicant does not contest its obligation to pay costs on the standard basis but resists an order that it pay more.
[3] The application for indemnity costs is put on three bases:
(a)The application for leave to appeal against the orders of the Planning and Environment Court was unreasonable because it raised no question of law but merely challenged findings of fact and the exercise of a discretion so that leave to appeal could not be given pursuant to s 4.1.56 of the Integrated Planning Act 1997.
(b)The applicant imprudently rejected an offer to compromise the application by discontinuing proceedings, each party paying its own costs.
(c)The applicant was a commercial competitor of the second respondent and brought the application as a means of delaying its competitor’s commencement of profitable trading so that the proceedings were brought for an ulterior purpose and not to vindicate some legal right.
[4] There is an undoubted jurisdiction to order indemnity costs where proceedings have been commenced or continued unreasonably in the sense that there is something irresponsible about their commencement or continuation. Many cases make the point. It is perhaps sufficient to refer to Emanuel Management Pty Ltd (in liquidation) v Foster’s Brewing Group Ltd [2003] QSC 299 in which some of the cases were reviewed. It is also well established that an unreasonable rejection of an offer to compromise proceedings where the offer was more favourable to the unsuccessful litigant than the judgment may result in an order for indemnity costs.
[5] The problem for the applicant with respect to these two grounds for seeking indemnity costs is that one of the members of the Court thought that leave to appeal should be granted and that the appeal should succeed. The contention that it was unreasonable to bring the application for leave to appeal, and imprudent to refuse the offer of compromise, is difficult to make out in that circumstance. It cannot be accepted as a basis for the order of indemnity costs.
[6] That leaves the third ground, that the application was brought for ulterior purposes by a commercial competitor. The ground is not supported by evidence. The second respondent may suspect that the applicant had that motive but it was, properly, not the subject of evidence before the Planning and Environment Court, nor this Court.
[7] Accordingly as between the applicant and the second respondent the order for costs should be on the standard basis.
[8] The applicant resists paying the first respondent’s costs, or more than a small part of them, on the grounds that:
(a)The application did not raise a question of construction of the Integrated Planning Act 1997 or of the first respondent’s planning scheme.
(b)The first respondent’s opposition to the application for leave to appeal was based upon the same grounds as the second respondent’s so that its appearance and opposition duplicated the second respondent’s.
(c)There is a principle, established in Tamborine Mountain Progress Association Inc v Beaudesert Shire Council [1995] 2 Qd R 231, that where issues are relatively simple and a local authority has no special interest in the outcome of litigation not shared by other respondents it should bear its own costs, or recover limited costs.
[9] The first ground does not seem right as a question of principle. An order for costs is at the discretion of the court and there is no warrant for confining an order for costs in favour of a successful local authority to cases in which the construction of the relevant planning legislation or a planning scheme is involved. The discretion must be exercised with respect to all relevant factors in every case.
[10] The second ground is more substantial. It is, however, in this case answered by a number of considerations. The first is that the respondent local authority had approved the proposed development and thereby indicated its opinion that orderly development within its area would be enhanced by the shopping centre at the particular location. It had responsibility as the planning authority to oversee such development. The applicant and the second respondent, who were commercial competitors in the building and operation of shopping centres, did not have that obligation and may have compromised the appeal on terms that the local authority thought inapplicable. For that reason it had an interest in appearing in the litigation.
[11] A second consideration is that the first respondent was by virtue of s 4.1.41 of the Integrated Planning Act 1997 a proper party to the appeal. It was entitled to participate and, prima facie, as a successful litigant entitled to an order for costs.
[12] The third consideration is that a litigant ought not to be deprived of its costs where it is one of a number successful parties unless its interests coincided with another’s and it was unreasonable to incur more than one set of costs.
[13] The interests of the local authority first respondent, and of the commercial competitor second respondent, were not identical and it was reasonable for the first respondent to remain at arm’s length from the second respondent in the conduct of the appeal. This was a factor of significance in Re Octaviar Ltd (No 8) [2010] QCA 57 citing Statham v Shephard (No 2) (1974) 23 FLR 244 at 246-7.
[14] The effect of the decision in Tamborine Mountain Progress Association is accurately set out in the head note:
“Where the issues in an appeal to the Court of Appeal from a decision of the Planning and Environment Court are relatively simple and in small compass and nothing seems likely to be decided in which the respondent council will have a special interest not shared by the other respondents it will often seem right to let the council, even if successful, bear its own costs or limit its costs.”
[15] The case does not purport to circumscribe the exercise of discretion which the court has in each case with respect to costs. The court’s reasons make clear that it was concerned not to discourage appeals by burdening an unsuccessful objector with successive orders for costs in cases where the objector was not a commercial competitor. The court said (232):
“… it appears to be inconsistent with the purpose of the legislation unduly to discourage objector appeals, particularly where the objector is not merely acting in its own commercial interest, but … in … the interest of the community affected by the proposal.”