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Namrog Investments Pty Ltd v Pembroke Olive Downs Pty Ltd (No 2)[2023] QLC 25

Namrog Investments Pty Ltd v Pembroke Olive Downs Pty Ltd (No 2)[2023] QLC 25

LAND COURT OF QUEENSLAND

CITATION:

Namrog Investments Pty Ltd v Pembroke Olive Downs Pty Ltd (No 2) [2023] QLC 25

PARTIES:

Namrog Investments Pty Ltd

(applicant)

v

Pembroke Olive Downs Pty Ltd

(respondent)

FILE NO:

MER038-23

DIVISION:

General

PROCEEDING:

Application for costs

DELIVERED ON:

15 December 2023

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 29 November 2023

HEARD AT:

Heard on the papers

A/PRESIDENT:

PG Stilgoe OAM

ORDERS:

  1. Namrog Investments Pty Ltd must pay Pembroke Olive Downs Pty Ltd’s costs, on a standard basis, of and incidental to:
  1. the General Application filed by Pembroke Olive Downs Pty Ltd on 6 June 2023; and
  2. Order 2A of the amended Originating Application filed by Namrog Investments Pty Ltd on 28 August 2023.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – where the respondent has applied for costs for an interlocutory hearing about questions of law in restricted land proceedings under Mineral and Energy Resources (Common Provisions) Act 2014 (Qld) – where proceedings are related to compensation proceedings – whether costs should follow the event

Land Court Act 2000 s 27A

Anson Holdings Pty Ltd v Wallace & Anor [2010] QLAC 4, cited

BHP Queensland Coal Investments Pty Ltd v Cherwell Creek Coal Pty Ltd (No 2) [2009] QLAC 8, applied

Dunn v Burtenshaw & Ors (2011) 32 QLCR 270, cited

Jensen & Anor v Valuer-General (No 3) [2023] QLC 19, applied

Lonergan & Anor v Friese (No 2) [2020] QLAC 4, applied

Pastrello v Roads and Traffic Authority (NSW) (2000) 110 LGERA 223 at 225, applied

Solomon Services Pty Ltd v The Council of the Shire of Woongarra [1988] 2 Qd R 202, applied

Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth – Brisbane Co-Op Ltd (No. 2) [2012] QLC 67, cited

APPEARANCES:

Not applicable

  1. [1]
    This is my decision as to the costs of and incidental to the hearing of the preliminary questions of “what is a dam” and what is “land used for a dam” for the purposes of section 68 of the Mineral and Resources (Common Provisions) Act 2014.[1]
  1. [2]
    Section 27A (1) of the Land Court Act 2000 gives me an unfettered discretion to order costs.

Should Pembroke have its costs of the application?

  1. [3]
    Pembroke submits that it should have its costs of the general application because it was wholly successful in its application.
  1. [4]
    That is true and, in the normal course of civil litigation, that submission would be enough for Pembroke to have its costs.

Should I make no order as to costs as Namrog submits?

An adjunct to the compensation proceedings

  1. [5]
    Namrog submits that because this application was an adjunct to the compensation proceedings, the general rule as to costs in compensation proceedings should apply.
  1. [6]
    The question of “what is a dam” and what is “land used for a dam” are only peripherally relevant to the issue of compensation. Namrog’s claim for compensation assumes a 100% loss of the land covered by the mining lease.[2] Balanced’s claim assumes that it will lose access to water infrastructure within the MLA[3] once the lease is granted.
  1. [7]
    Namrog also relies on the Land Appeal Court’s reference[4] to the statement by Talbot J in Pastrello v Roads and Traffic Authority (NSW)[5]:

“There needs to be a strong justification for awarding costs against an applicant where the effect of making that order is to erode the benefit of the just compensation recovered as a consequence of the Court's determination. It is only in special cases that the Court will deprive the owner of the full benefit of the compensation which is determined as fair and just in the circumstances of the case.”

  1. [8]
    There are two things to say about this submission. Firstly, both the Land Appeal Court and Talbot J were dealing with the costs of a proceeding, not an interlocutory hearing. Secondly, Namrog’s claim for compensation is more than $100 million. I cannot conceive that Pembroke’s costs of this application would “erode the benefit of just compensation” ultimately payable to Namrog.

The purpose of the hearing was to save costs and time

  1. [9]
    Namrog rightly refers to Pembroke’s submission that the experts needed certainty as to what they were tasked to consider. Without this determination, it is likely that the experts would have considered alternative scenarios, adding to the time and cost of preparing a joint expert report and the time in court for the experts to give that evidence.
  1. [10]
    Namrog also rightly points to the fact that Pembroke might not have obtained an order for costs on those issues at the conclusion of the proceedings. The costs would likely depend on the ultimate decision of the court.
  1. [11]
    In isolation, this submission favours no order for costs.

A wider interpretation of “dam” was fairly arguable

  1. [12]
    Namrog submits that it would be inconsistent with the object of making an application for a preliminary determination of a question of law for one party to be visited with an adverse costs order because “its propounded construction was not favoured”.[6] Put another way, Namrog submits it should not be visited with costs because I did not agree with its submission.
  1. [13]
    A point of law often decides an issue, or a proceeding. Inevitably, the losing party’s propounded construction was not favoured. It would be an odd consequence of civil litigation if a losing party could avoid a costs order simply because the court took a different view of the law.

I should not start with the preconception that costs follow the event

  1. [14]
    Namrog has relied on a number of cases to support this submission. The first is Cherwell Creek.[7] While Namrog relies on the Court’s statement at [6], the Court explained its position at [7] by reference to the decision of Dowsett J in Solomon[8]:

“in exercising the discretion, a non-exhaustive list of relevant matters to be considered might include the issues which have been raised, their public nature or otherwise, the extent to which a party may be said to have a commercial interest in the outcome, the success or failure of the parties on particular issues, the amount of time spent on issues and the extent to which they might be said to have been arguable or otherwise, and the difficulty of resolving the matter according to commonly understood principles.”

  1. [15]
    and at [12]:

“the rule that costs will usually follow the event is one which is deeply embedded in our law and that is a factor which may be taken into account in exercising our discretion under s.34(1) bearing in mind that this dispute is between significant commercial entities on the part of the appellants and a respondent who can call upon a funder for this expensive litigation.” (citations omitted)

  1. [16]
    The second case Namrog relies on is Anson.[9] This case concerned the grant of a mining lease in the face of objections. The Court has always recognised that mining objection hearings require a different approach to the question of costs as it is often difficult to discern whether there is a “loser” in the strict sense. The same can be said of Namrog’s reliance on Dunn v Burtenshaw[10] and Xtrata[11] as they were also cases concerning the grant of mining leases.

The Court should not reopen the question of costs

  1. [17]
    Namrog submits that because I have not previously made an order for costs, even though Pembroke had sought such an order, section 27A (2) of the Land Court Act 2000 applies.
  1. [18]
    In Jensen,[12] I drew the distinction between costs in a proceeding, to which section 27A refers, and the costs of an application. My view has not changed.
  1. [19]
    After I handed down the decision on 29 September 2023, I had the following exchange with the representatives of the parties:

HER HONOUR: I have on my bench some draft orders. So do you want to think about those, or do you want to progress the matter now? It is probably a little too soon.

MS McINTYRE: Your Honour, if the parties might have some time to review and consider the decision and have the matter called on for a full review when further ---

HER HONOUR: In due course.

MS McINTYRE: In due course. Yep.

HER HONOUR: Yes. Thank you. Mr Zillman, are you happy with that?

MR ZILLMAN: Yes, I am, your Honour. We had contemplated some orders in the compensation proceeding about nomination for experts and so forth, but I think that the matter could be called on for a review fairly shortly.[13]

  1. [20]
    The draft orders I contemplated made provision for determination of the costs of the application.
  1. [21]
    On any view, the question of costs remained open, a fact reinforced by the consent orders for the filing of submissions on the issue.
  1. [22]
    Namrog reminds me that my decision is the subject of an appeal and submits that Pembroke can raise the question of costs by way of a cross appeal before the Land Appeal Court. For the reasons I have already given, I do not consider there is a decision on costs from which Pembroke can appeal. In any event, the question of costs is best dealt with by the court which made the decision, not the appeal court.

Conclusion

  1. [23]
    Even though it is tempting simply to order Namrog pay Pembroke’s costs because it was wholly successful in the application, the authorities suggest that I should give the question deeper consideration.
  1. [24]
    I have rejected most of the submissions put forward by Namrog but I should also consider the “non-exhaustive” list identified by Dowsett J.[14]
  1. [25]
    The issues raised in this application are of little public interest; the facts are particular to this case and are unlikely to have general application.
  1. [26]
    Both parties have a commercial interest in the outcome; they are both parties with significant resources and a costs order either way will not detrimentally affect their financial positions.
  1. [27]
    Pembroke submits that Namrog’s originating application was misconceived, and that Namrog persisted with the misconception even after it had received notice of that fact. In response, Namrog submits that this issue did not cause Pembroke to incur any additional costs. I disagree; the hearing of the general application was adjourned to enable Namrog to file an amended originating application.[15] Pembroke did incur additional costs in the course of this application.
  1. [28]
    I accept that Namrog’s position was arguable but, as I have already identified, most losing parties in litigation have at least an arguable position. I agree that the resolution of this preliminary issue may have saved time and money in the wider dispute but I have no doubt that, if Namrog’s position had been vindicated, it would now be urging me to make a costs order in its favour.
  1. [29]
    Namrog should pay Pembroke’s costs of and incidental to the general application on a standard basis.

Orders

  1. Namrog Investments Pty Ltd must pay Pembroke Olive Downs Pty Ltd’s costs, on a standard basis, of and incidental to:
  1. the General Application filed by Pembroke Olive Downs Pty Ltd on 6 June 2023; and
  2. Order 2A of the amended Originating Application filed by Namrog Investments Pty Ltd on 28 August 2023.

Footnotes

[1]Pembroke Olive Downs Pty Ltd v Namrog Investments Pty Ltd & Anor; Namrog Investments Pty Ltd v Pembroke Olive Downs Pty Ltd [2023] QLC 14. The decision encapsulated the General Application of Pembroke Olive Downs Pty Ltd filed 5 June 2023 and Order 2A sought by Namrog Investments Pty Ltd in its amended Originating Application filed 28 August 2023.

[2]Applicant’s Compensation Statement, Pembroke Olive Downs Pty Ltd, filed 11 May 2023 (MER486‑20), [13].

[3]Respondent’s Compensation Statement, Balanced Property Pty Ltd, filed 31 May 2023 (MER486‑20), [8].

[4]Lonergan & Anor v Friese (No 2) [2020] QLAC 4 at [28].

[5](2000) 110 LGERA 223 at 225.

[6]Applicant’s Submissions on Costs, Namrog Investments Pty Ltd, filed 24 November 2023, [13].

[7]BHP Queensland Coal Investments Pty Ltd v Cherwell Creek Coal Pty Ltd (No 2) [2009] QLAC 8.

[8]Solomon Services Pty Ltd v The Council of the Shire of Woongarra [1988] 2 Qd R 202.

[9]Anson Holdings Pty Ltd v Wallace & Anor [2010] QLAC 4.

[10]Dunn v Burtenshaw & Ors (2011) 32 QLCR 270.

[11]Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth – Brisbane Co-Op Ltd (No. 2) [2012] QLC 67.

[12]Jensen & Anor v Valuer-General (No 3) [2023] QLC 19.

[13]T 3-2, lines 29 to 46.

[14]Solomon Services Pty Ltd v The Council of the Shire of Woongarra [1988] 2 Qd R 202.

[15]T 1-20, line 33 to T 1-22 line 42.

Close

Editorial Notes

  • Published Case Name:

    Namrog Investments Pty Ltd v Pembroke Olive Downs Pty Ltd (No 2)

  • Shortened Case Name:

    Namrog Investments Pty Ltd v Pembroke Olive Downs Pty Ltd (No 2)

  • MNC:

    [2023] QLC 25

  • Court:

    QLC

  • Judge(s):

    PG Stilgoe OAM

  • Date:

    15 Dec 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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