Mekpine Pty Ltd v Moreton Bay Regional Council (No. 2)
[2016] QLC 37
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- Unreported Judgment
- Mekpine Pty Ltd v Moreton Bay Regional Council (No. 2)[2016] QLC 37
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Mekpine Pty Ltd v Moreton Bay Regional Council (No. 2)[2016] QLC 37
Mekpine Pty Ltd v Moreton Bay Regional Council (No. 2)[2016] QLC 37
LAND COURT OF QUEENSLAND
CITATION: | Mekpine Pty Ltd v Moreton Bay Regional Council (No. 2) [2016] QLC 37 |
PARTIES: | Mekpine Pty Ltd (applicant) |
| v |
| Moreton Bay Regional Council (respondent) |
FILE NO: | AQL816-11 |
DIVISION: | General Division |
PROCEEDING: | Application for costs |
DELIVERED ON: | 14 June 2016 |
DELIVERED AT: | Brisbane |
HEARD ON: | Decided on written submissions Decision reserved 23 May 2016 |
HEARD AT: | Brisbane |
MEMBER: | WA Isdale |
ORDER: | 1. The applicant pay the respondent’s costs of, and incidental to, the General Application filed by the respondent on 15 February 2012. Such costs are to be assessed on the standard basis, if not agreed. 2. The applicant pay the respondent’s costs of, and incidental to, the proceeding generally, including for this costs application and the submissions made in support of it. Such costs are to be assessed on the standard basis, if not agreed. |
CATCHWORDS: | Costs – compulsory acquisition – s 27 Acquisition of Land Act 1967 – s 34 Land Court Act 2000 – whether costs should be awarded – factors governing the exercise of the discretion Acquisition of Land Act 1967, s 27 Land Court Act 2000, s 34 Caseldan Pty Ltd v Moreton Bay Regional Council (No. 2) [2015] QLC 7 Mio Art Pty Ltd & Ors v Brisbane City Council [2010] QLC 86 Moreton Bay Regional Council v Mekpine Pty Ltd [2016] HCA 7 Oshlack v Richmond River Council (1998) 193 CLR 72 PT Limited & Westfield Limited v Department of Natural Resources and Mines (2007) 28 QLCR 295 Wyatt v Albert Shire Council [1987] 1 Qd R 486 |
APPEARANCES: | Not applicable Written submissions were made by the respondent only |
SOLICITORS: | Not applicable |
Background
- [1]On 20 April 2016 the Court ordered by consent that the proceedings be dismissed after the determination of an appeal by the High Court of Australia.[1] The decision of the High Court sufficiently sets out the history of the matter.
- [2]Pursuant to the consent order of 20 April 2016, the respondent has made written submissions seeking orders for costs. The solicitors for the applicant have informed the Court that it will not be making any submissions in reply.
The respondent’s submissions
- [3]The respondent’s submissions are not contested. It seeks an order that the applicant pay its costs of the General Application filed on 15 February 2012 for the Court to determine the preliminary point ultimately resolved in the High Court. It is also seeking that the applicant pay its costs of and incidental to the proceedings generally, including the costs of the present application for costs, extending to its submissions. It seeks an order that costs be assessed on the standard basis, if not agreed.
- [4]The respondent points out that the applicant claimed compensation in the sum of $806,892 and was unsuccessful as it did not have a compensable interest in the land resumed by the respondent.
- [5]In accordance with s 27(2) of the Acquisition of Land Act 1967, in the circumstances, a costs order could only be made in favour of the respondent, if the Court exercises its discretion to award costs.
- [6]It is submitted that the Court has power under s 34 of the Land Court Act 2000 to award costs in the present case.
- [7]The respondent has been completely successful. It is submitted that the applicant’s case involved both an attempt to distinguish High Court authority regarding statutory interpretation and to circumvent the language of its lease.
- [8]
“Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party.”
- [9]It is submitted that the ordinary rule that costs follow the event does not apply but that the success of the respondent is a major consideration, there being justice in the rule that costs ordinarily follow the event.[3]
- [10]The respondent submits that the applicant should not have brought the proceeding and there is no good reason why the orders sought should not be made.
The costs discretion
- [11]The applicant has chosen not to make any submissions in reply to those of the respondent so no contrary submissions exist. This is relevant but not determinative as under s 27(1) of the Acquisition of Land Act 1967 costs are in the discretion of the Court. The discretion is to be exercised judicially, that is for reasons that are not arbitrary and can be justified.[4]
- [12]The Court should not be bound by any presumptive rule or principle in exercising its discretion[5] but must consider all of the facts and circumstances of the case.
Exercising the discretion
- [13]It is relevant that the applicant was ultimately found to not have a compensable interest in the resumed land. Its claim was not vexatious or dishonest but did depend upon legal interpretation which was not finally upheld. The situation here is different to that in Mio Art Pty Ltd & Ors v Brisbane City Council.[6] This is not a case like that one where a dispossessed owner sought to press its claim. Here the issue was whether the applicant had a compensable interest in the land. The case is more akin to a civil case. The respondent has been forced into litigation in which it has ultimately been successful and in justice ought ordinarily to have its costs.
- [14]In view of all of the facts and circumstances of this case and for the reasons given, the Court exercises its discretion to make orders for costs. The orders are for the purpose of compensating the successful party for the expense to which it has been put in respect of the claim made against it.
- [15]The orders will be those sought by the respondent.
Orders
- The applicant pay the respondent’s costs of, and incidental to, the General Application filed by the respondent on 15 February 2012. Such costs are to be assessed on the standard basis, if not agreed.
- The applicant pay the respondent’s costs of, and incidental to, the proceeding generally, including for this costs application and the submissions made in support of it. Such costs are to be assessed on the standard basis, if not agreed.
WA ISDALE
MEMBER OF THE LAND COURT
Footnotes
[1] Moreton Bay Regional Council v Mekpine Pty Ltd [2016] HCA 7.
[2] (1998) 193 CLR 72 at [67].
[3] Caseldan Pty Ltd v Moreton Bay Regional Council (No. 2) [2015] QLC 7 at [11].
[4] Wyatt v Albert Shire Council [1987] 1 Qd R 486 at 489.
[5] PT Limited & Westfield Limited v Department of Natural Resources and Mines (2007) 28 QLCR 295 at [20]. In that case the Valuation of Land Act 1944 was being considered but the comments of the Land Appeal Court are equally applicable here.
[6] [2010] QLC 86.