Wellington v Blackwood Exploration Pty Ltd (No 2)
[2018] QLC 33
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- Unreported Judgment
- Wellington v Blackwood Exploration Pty Ltd (No 2)[2018] QLC 33
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Wellington v Blackwood Exploration Pty Ltd (No 2)[2018] QLC 33
Wellington v Blackwood Exploration Pty Ltd (No 2)[2018] QLC 33
LAND COURT OF QUEENSLAND
CITATION: | Wellington as Tte for the OR & R Wellington Superfund ABN 81 576 722 911 and the OR & R Partnership ABN 84 165 075 135 v Blackwood Exploration Pty Ltd (No 2) [2018] QLC 33 |
PARTIES: | Owen Reginald Wellington as trustee for the OR & R Wellington Superfund ABN 81 576 722 911 and as trustee for the OR & R Partnership ABN 84 165 075 135 (applicant) |
v | |
Blackwood Exploration Pty Ltd ACN 142 208 982 (respondent) | |
FILE NO: | CPA706-17 |
DIVISION: | General division |
PROCEEDING: | Application for costs |
DELIVERED ON: | 4 October 2018 |
DELIVERED AT: | Brisbane |
HEARD ON: | 2 June 2018 |
HEARD AT: | Brisbane |
MEMBER: | WL Cochrane |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – interlocutory proceedings - where costs do not follow the event – cost provisions under s 34 of Land Court Act 2000 – where costs are discretionary – where the conduct of the parties does not warrant cost orders |
APPEARANCES: | DM Favell (instructed by Rouse Lawyers) for the applicant D de Jersey (instructed by Thomson Geer) for the respondent Land Court Act 2000 s 34, s 7A Mineral and Energy Resources (Common Provisions) Act 2014 s 27(1)(b) Hancock Coal Pty Ltd v Cassoni (No 5) [2014] QLC 33, considered Mentech Resources Pty Ltd v MCG Resources Pty Ltd (in liq) & Ors (No 2) (2012) 33 QLCR 43, considered PT Ltd & Westfield Ltd v Department of Natural Resources and Mines (2007) 28 QLCR 295, considered Wellington as Tte for the OR & R Wellington Superfund and as Tte for the OR & R Partnership v Blackwood Exploration Pty Ltd [2018] QLC 12, cited |
- [1]This is an application for costs.
- [2]In October 2017 the applicant lodged a caveat over Exploration Permit for Coal (EPC) 1802.
- [3]Pursuant to s 27(1)(b) of the Mineral and Energy Resources (Common Provisions) Act 2014 that caveat would have lapsed on 4 January 2018 unless an order by this Court was made in respect of it.
- [4]In consequence of that lapsing provision, on 17 November 2017 the applicant filed an application, returnable on 30 November 2017. The applicant sought an order to extend the duration of the caveat pending an outcome from a matter being heard in the Supreme Court which related to determining whether the applicant indeed had a caveatable interest.
- [5]Mr de Jersey of counsel was unable to appear on that occasion and the first date mutually convenient to both barristers was 27 February 2018, on which day, the relevant application was heard.
- [6]In a general sense, because of the existence of parallel proceedings in the Supreme Court in which proceedings similar relief was being sought, I declined to make any orders in relation to the application by Mr de Jersey relating to the capacity of the applicant to lodge the caveats presently before the Court.
- [7]The caveats have been ordered to remain in place until determined by the Supreme Court or other earlier order.
- [8]From that proceeding, the applicant, having for the moment staved off Mr de Jersey’s challenge to their capacity, seeks a costs order in his favour.
- [9]The failure of the respondent to achieve the orders sought on 27 February 2018 needs to placed into its appropriate context.
- [10]Having lodged the caveat, the applicant, pursuant to the Mineral and Energy Resources (Common Provisions) Act, was obliged to bring an application before this Court to avoid the caveat lapsing.
- [11]The applicant appeared represented by counsel on the return date back in November 2017. The respondent’s counsel was not available on that day and, as a matter of convenience, the matter was adjourned to February this year when, as indicated above, the application was dealt with by way of my refusal to allow it, pending the determination of the Supreme Court proceedings.[1]
- [12]In November 2017, having regard to the affidavit filed by the applicant prior to the matter coming on for hearing before me on 27 October 2017, I directed that correspondence be sent to the parties identifying some concerns which I had identified upon reading the material filed by the applicant (the respondent not, at that stage, having filed any material at all).
- [13]That correspondence said, inter alia:
“His Honour has directed that I write to the parties informing them that, while he has clearly not seen all of the material upon which he may be required to make a determination, he draws the parties’ attention to the need for any undertakings offered in respect of damages, should the caveat be left in place, clearly deposed to by the party offering the undertakings.
His Honour has asked me to inform the parties, as well, that in his view, it is appropriate also that material be provided to the Court which establishes the worth of any undertakings which might be offered.”
- [14]That correspondence provoked the filing of a further affidavit by Owen Reginald Wellington on 30 November 2017.
- [15]That material satisfied the concerns that were raised by me in the correspondence sent at my direction and also resulted in an amendment to the name of the applicant, to reflect his status as a trustee.
- [16]Because of the decision made by me in respect of the application to deal with the issue of the existence of status enabling a party to lodge a caveat, the applicant’s argument remains unexplored and will, it is assumed, be dealt with in the parallel proceedings afoot in the Supreme Court.
- [17]The shortcomings in the applicant’s materials were rectified by the filing of the affidavit from Mr Wellington and by the amendment of the applicant’s name to reflect its trustee status. Those matters were not objected to by the respondent.
- [18]Because of the existence of the caveat, it was necessary for the applicant to appear before me in February in any event.
- [19]Given the existence of the Supreme Court proceedings, it would have came as no surprise to the applicant that the respondent wished to raise contentions about his status.
- [20]Neither party, through its counsel, drew my attention to the expressed attitude of the courts as to what should be done in the event of parallel proceedings existing in a superior court and in an inferior court or tribunal.
- [21]Apart from maintaining the status quo by allowing the caveat to remain in place, as is the consequence of the orders made by me, the outcome of the 27 February 2018 hearing was, in my view, inevitable.
The statutory framework
- [22]The issue of costs is dealt with in s 34 of the Land Court Act 2000 (LCA) which provides that:
- (1)Subject to the provisions of this or another Act the contrary, the Land Court may order costs for proceedings in the court as it considers appropriate. (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.
- [23]The Land Court has the power of the Supreme Court, per s 7A:
- (1)The Land Court has, for exercising jurisdiction conferred under this Act or another Act, all the powers of the Supreme Court, and may in a proceeding before the Land Court, in the same way and to the same extent as may be done by the Supreme Court in a similar proceeding—
- (a)grant any relief or remedy; and
- (b)make any order, including an order for attachment or committal because of disobedience to an order; and
- (c)give effect to every ground of defence or matter of set-off, whether equitable or legal.
- (2)Without limiting subsection (1), the Land Court has, in a proceeding before it, power to grant relief—
- (a)under a declaration of rights of the parties; or
- (b)under an injunction, whether interim, interlocutory or final, in the proceeding; or
- (c)by staying the proceeding or a part of the proceeding; or
- (d)by appointing a receiver including an interim receiver.
- [24]This Court and the Land Appeal Court have, on a number of occasions, had to consider the appropriate approach to applications for costs orders.
- [25]As his Honour Member PA Smith observed in Hancock Coal Pty Ltd v Cassoni:
“It is certainly clear that there is no automatic or overriding principle that cost orders should follow the event in Land Court Matters. However, as the relevant authorities make clear, the outcome of the litigation informs the decision as to the exercise of the discretion.”[2]
- [26]The Land Appeal Court considered the discretion with respect to costs in PT Limited & Westfield Management Limited v Department of Natural Resources and Mines.[3] In PT Limited, the Land Appeal Court said:
“[20] The common law principle which has long dominated the exercise of the discretion to award costs that they “follow the event” has been incorporated into r 689 of the Uniform Civil Procedure Rules 1999 but is found neither in the VLA nor the Land Court Act. In interpreting s 66 the Court should not therefore be bound by any presumptive rule or principle – the discretion is complete, but must be exercised judicially.
….
[22] There may be any number of factors which a court vested with a general jurisdiction to award costs might entertain. One of those factors is the outcome of the litigation. Another might be the overall purpose of the legislation. Contemporary legislation in Queensland tends to make express provision about costs if it is thought desirable that parties not be discouraged from seeking to assert rights by the fear of adverse costs orders.”[4] (citations omitted)
- [27]Costs are not meant to be punitive. They are, in inappropriate circumstances, compensatory in so far as they protect those put to unnecessary and substantive expense at the behest of others.[5]
- [28]In the present case there has been no conduct by either party which would warrant costs being awarded in a punitive way.
- [29]Of particular relevance in the present case is that the matter before this Court was initiated by the lodging of a caveat by the applicant that necessarily has had to come to this Court in order to preserve the existence of that caveat.
- [30]As I point out above, the argument advanced by the respondent with respect of the status of the applicant remains unexplored and it is not the case that the applicant has had some sort of “victory” based upon legal argument. My disinclination to consider Mr de Jersey’s argument was premised, as I point out above, on the existence of parallel proceedings in the Supreme Court.
- [31]In all of the circumstances of this case, I am not satisfied that it is an appropriate case in which any order for costs ought be made.
- [32]Accordingly, I dismiss the application by the applicant for a cost order in its favour.
Orders
- The application for costs of, and incidental to, the hearing of 27 February 2018 (including those incurred seeking costs) is refused.
- Each party is to bear their own costs of, and incidental to, the hearings on 27 February 2018 and 2 June 2018.
WL COCHRANE
MEMBER OF THE LAND COURT
Footnotes
[1]Wellington as Tte for the OR & R Wellington Superfund and as Tte for the OR & R Partnership v Blackwood Exploration Pty Ltd [2018] QLC 12.
[2]Hancock Coal Pty Ltd v Cassoni (No 5) [2014] QLC 33 [27].
[3] (2007) 28 QLCR 295.
[4] Ibid [20]; [22].
[5]Mentech Resources Pty Ltd v MCG Resources Pty Ltd (in liq) & Ors (No 2) (2012) 33 QLCR 43 [4].