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Mentech Resources Pty Ltd v MCG Resources Pty Ltd (No 2)[2012] QLAC 2

Mentech Resources Pty Ltd v MCG Resources Pty Ltd (No 2)[2012] QLAC 2

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors (No 2) [2012] QLAC 002

PARTIES:

Mentech Resources Pty Ltd

(Appellant)

v

MCG Resources Pty Ltd (in liquidation)

(First Respondent)

and

Terence Burt, Judy-Anne Galway and Robert William Kirkby

(Second Respondents)

FILE NO:

LAC006-2011

DIVISION:

General Division

PROCEEDING:

Costs of Appeal to Land Appeal Court

ORIGINATING COURT:

Land Court 

DELIVERED ON:

6 March 2012

DELIVERED AT:

Rockhampton

HEARING DATE:

16 December 2011

THE COURT:

D McMeekin J 

CAC MacDonald, President of the Land Court

PA Smith, Member of the Land Court

ORDERS:

  1. The appellant pay the first respondent’s costs of the appeal including any reserved costs on the standard basis, such costs to be agreed or, failing agreement, to be assessed by a cost assessor of the Supreme Court.
  2. Pursuant to s 34(3) of the Land Court Act 2000 this order may be made an order of the Supreme Court and enforced in the Supreme Court. 

CATCHWORDS:

Costs unfettered discretion – costs awarded to the successful party – application of the principle that costs follow the event – ss. 34 and 72 Land Court Act 2000.

COUNSEL:

Mr TS Hale SC with Mr H Trotter for the appellant

Mr MD Martin for the first respondent

SOLICITORS:

Macdonald & Michel Lawyers for the appellant

Clarke Kann Lawyers for the first respondent

  1. [1]
    The Court:  Judgment in this matter was handed down on 10 February 2012. The appeal was dismissed. The parties were directed to make such submissions as to costs as they were advised. They have done so. The first respondent seeks costs to be paid by the appellant, the first respondent having been successful on the appeal. Neither the appellant nor the second respondents have made submissions.
  1. [2]
    Section 34 of the Land Court Act 2000 (Qld) (“the Act”) provides:

34 Costs

  1. (1)
    Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate.
  1. (2)
    If the court does not make an order under subsection (1), each party to the proceeding must bear the party’s own costs for the proceeding.
  1. (3)
    An order made under subsection (1) may be made an order of the Supreme Court and enforced in the Supreme Court.
  1. (4)
    For subsection (3), it is enough to file the order in the Supreme Court.
  1. (5)
    The court may, if it considers it appropriate, order the costs to be decided by the appropriate assessing officer of the Supreme Court.
  1. (6)
    If the court makes an order under subsection (5), the assessing officer may decide the appropriate scale to be used in assessing the costs.”
  1. [3]
    Section 72(1) of the Act provides that s 34, amongst other provisions, applies “with necessary changes” to the Land Appeal Court and a “reference in the applied sections to the Land Court is taken to be a reference to the Land Appeal Court”.
  1. [4]
    Hence the Land Appeal Court may order costs “as it considers appropriate”. The discretion to award costs is unfettered. However the rule often followed, and the rule incorporated in r 689 of the Uniform Civil Procedure Rules 1999, is that costs follow the event.[1] That rule, while it does not govern the exercise of the discretion here, nonetheless informs it, as there is justice in that approach. It protects those put to unnecessary and substantial expense at the behest of others.[2] There is no reason here why costs should not follow the event in the usual way.
  1. [5]
    The first respondent seeks that the order be made an order of the Supreme Court pursuant to s 34(3) of the Land Court Act. Presumably that will facilitate enforcement of the order made here. That is appropriate.
  1. [6]
    The orders will be:
  1. The appellant pay the first respondent’s costs of the appeal including any reserved costs on the standard basis, such costs to be agreed or, failing agreement, to be assessed by a cost assessor of the Supreme Court.
  1. Pursuant to s 34(3) of the Land Court Act 2000 this order may be made an order of the Supreme Court and enforced in the Supreme Court.

D McMEEKIN J

CAC MacDONALD

PRESIDENT OF THE LAND COURT

PA SMITH

MEMBER OF THE LAND COURT

Footnotes

[1]Barns v Director General, Department of Transport (1997) 18 QLCR 133 at 135.

[2]PT Limited v Department of Natural Resources & Mines (2007) 28 QLCR 295 at [25].

Close

Editorial Notes

  • Published Case Name:

    Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors (No 2)

  • Shortened Case Name:

    Mentech Resources Pty Ltd v MCG Resources Pty Ltd (No 2)

  • MNC:

    [2012] QLAC 2

  • Court:

    QLAC

  • Judge(s):

    McMeekin J, MacDonald P, Member Smith

  • Date:

    06 Mar 2012

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2011] QLC 5915 Sep 2011MCG entered an agreement to acquire an exploration permit from Burt, Galway and Kirkby (BGK). MCG lodged a caveat forbidding dealing in the permit and obtained an order from the Court to that effect. BGK entered into another agreement to sell the same permit to Mentech. Mentech also lodged a caveat and obtained a court order to the same effect. MCG applied to remove Mentech's caveat. Ordered that both caveats be removed: Member Isdale.
Primary Judgment[2011] QLAC 820 Sep 2011Stay of the orders made 15 September 2011 pending appeal granted: McMeekin J, CAC MacDonald, President, Member PA Smith.
Primary Judgment[2012] QLAC 110 Feb 2012In Mentech's appeal it was found that the MCG contract to acquire the exploration permit remained on foot. MCG had a better equity than Mentech. Appeal dismissed and the stay was lifted: McMeekin J, CAC MacDonald, President, Member PA Smith.
Primary Judgment[2012] QLAC 206 Mar 2012Mentech was ordered to pay MCG's costs of the appeal to the Land Appeal Court: McMeekin J, CAC MacDonald, President, Member PA Smith.
QCA Interlocutory JudgmentCA2692/12 (No citation)04 May 2012Application for security for costs of the appeal to the Court of Appeal. Ordered that Mentech provide security for costs by 4 pm on 21 May 2012 otherwise the appeal was dismissed: Holmes JA
QCA Interlocutory Judgment[2012] QCA 19725 Jul 2012Mentech did not comply with the terms of the order made by Holmes J on 4 May 2012. Application to set aside aside the judgment by default arising in consequence of the operation of the order of 4 May 2012. Judgment set aside and time for compliance with the obligation to provide security for costs extended: Muir JA.
Appeal Determined (QCA)[2013] QCA 7912 Apr 2013Mentech's application for leave to appeal from the Land Appeals Court dismissed: McMurdo P, Gotterson JA, Fryberg J.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Barns v Director General, Department of Transport (1997) 18 QLCR 133
1 citation
PT Limited v Department of Natural Resources & Mines (2007) 28 QLCR 295
1 citation

Cases Citing

Case NameFull CitationFrequency
Agreedto Pty Ltd v Chief Executive, Department of Natural Resources and Mines (No. 2) [2012] QLC 732 citations
Caseldan Pty Ltd v Moreton Bay Regional Council (No. 2) [2016] QLAC 42 citations
Cement Australia (Exploration) Pty Ltd v East End Mine Action Group Inc (No 5) [2021] QLC 321 citation
Department of Environment and Science v Baal Gammon Copper Pty Ltd [2020] QLC 42 citations
Donovan v Struber (No. 4) [2013] QLC 142 citations
ERO Georgetown Gold Operations Pty Ltd v Henry (No. 2) [2016] QLAC 32 citations
Goldhounds Mining and Exploration Pty Ltd v Department of Natural Resources, Mines and Energy (No 2) [2019] QLC 161 citation
Hail Creek Coal Holding Pty Limited v Michelmore (No 2) [2021] QLC 232 citations
Hughes v Dobe [2014] QLC 362 citations
Krieg v Woolgar Valley Aboriginal Corporation [2021] QLC 281 citation
Lonergan v Friese (No 2) [2020] QLAC 42 citations
Mahoney v Chief Executive, Department of Transport and Main Roads (No. 2) [2012] QLC 552 citations
MCG Resources Pty Ltd v Burt [2012] QLC 321 citation
Mio Art Pty Ltd v Brisbane City Council (No 3) [2013] QLAC 32 citations
New Acland Coal Pty Ltd v Oakey Coal Action Alliance Inc. (No 3) [2022] QLC 52 citations
Ostroco v Department of Transport and Main Roads (No. 2) [2012] QLAC 72 citations
Peabody West Burton Pty Ltd & Ors v Mason & Ors (No. 2) [2013] QLC 122 citations
Peter Campbell Earthmoving Pty Ltd v Plentygold Miclere Pty Ltd [2020] QLC 152 citations
YMCA v Chief Executive, Dept of Transport & Main Roads No 2 [2012] QLAC 42 citations
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