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Lyons v Olive & Anor QPEC 62
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
Lyons v Olive & Anor  QPEC 62
MARK ACTON OLIVE
LEANNE PATRICIA OLIVE
BUILDING CERTIFICATION CONSULTANTS PTY LTD (ACN 125 584 349)
Planning & Environment
Hearing of an application
Planning & Environment Court of Queensland at Brisbane
6 November 2015 – ex tempore
6 November 2015
R S Jones DCJ
Order that the second respondent is to pay the applicant's costs from 5 March 2015.
PLANNING AND ENVIRONMENT – COSTS – applicant seeks costs against second respondent on indemnity basis – second respondent seeks costs against applicant on indemnity basis – discretion to award costs – where conduct caused delay
Paroz v Paroz & others (No 2)  QSC 157
Cox & Ors v Brisbane City Council & Anor (No 2)  QPEC 78
M.A. Williamson instructed by Connor O'Meara for the applicant
L.P. Olive in person for the first respondents
A.P. Collins instructed by Carter Newell for the second respondent
- I am concerned here with two applications for costs arising out of what is essentially a neighbourhood dispute which has become unfortunately quite bitter over time. The substantive issues have been resolved, as I say, leaving the question of costs. The substantive relief was essentially that the building development approval given by the second respondent to AAD Design on or about 20 October 2014, which approved building works on the first respondent's land, was void ab initio. There were certain consequential orders including that the building development approval be set aside. There was really no contest about whether or not those orders ought to have been made.
- The matter was commenced by way of an originating application filed on 28 November 2014. In that application, no costs were sought, and that is consistent with some correspondence that I will come to in a moment. On 30 June 2015 that originating application was amended to include, among other things, costs on an indemnity basis against the second respondent.
- In respect of the applications before me, the applicant seeks costs against the second respondent on an indemnity basis and, in turn, the second respondent seeks costs on an indemnity basis against the applicant. Neither party seeks any cost orders against the first respondent.
- By way of some relevant factual background, the applicant here, as I have indicated, is the neighbour of the first respondents who own and occupy adjoining land. The second respondent is a private certifier as defined under the Building Act 1975 who, on 20 October 2014, gave a building development approval in respect of the first respondent's land, which approved building works, which are identified in various plans contained in the material.
- Work, in fact, commenced pursuant to that approval, but has subsequently ceased, and, as I understand it, there has effectively been no building work this year.
- On behalf of the applicant, his grounds for costs are set out and identified in paragraphs 10, 11, 12, 13 and 14 of the written submissions of Mr Williamson counsel for the applicant. Essentially he argues that there are at least four matters which would warrant a favourable costs order. The first, that the applicant was, to use Mr Williamson's term, an innocent bystander who was forced into the situation of having to bring these proceedings as a consequence of the acts of the first and second respondent, but, more relevantly, that of the second respondent; second, and this is largely a consequence of the first, that the applicant was forced to take steps and, indeed, having regard to the type of relief sought, was required to commence proceedings in this court.
- The third matter was that, when looked at objectively, the only rational conclusion that could be drawn was that the applicant had enjoyed a significant degree of success in the proceedings. The fourth matter that the applicant refers to involves a number of associated matters including the allegation that the second respondent had imprudently rejected offers of compromise, had continued to maintain its position that it was not a proper party to the proceedings and also protracted matters by attempting to achieve what Mr Williamson described as collateral purposes. From my understanding of the material, those collateral purposes being the second respondent's insistence during negotiations upon the applicant and the second respondent entering into a deed, which would include, among other things, various releases, confidentiality clauses, indemnity clauses and an assurance by the applicant that he would not make any complaint to any regulatory body including the Brisbane City Council.
- As to the second respondent's position, in paragraph 2 of the written submissions of Mr Collins, counsel for the second respondent, it is stated:
“Further, whilst the second respondent has prima facie always taken the position it was not a necessary party to the action (even though it is an author of the approval, the validity or otherwise is a matter solely between the applicant and the first respondent) it has always attempted to cooperate to bring this matter to a resolution.”
- In paragraph 7 of the written outline, it is asserted that the second respondent has always adopted an entirely reasonable approach to the proceedings including that whilst maintaining that the relief brought did not "strictly involve the second respondent", the second respondent, nonetheless, acted reasonably in trying to bring the proceedings to an end.
- It was also pointed out that the second respondent could not really agree to any compromise ‑ to the orders sought without knowing what the first respondent's position was, and also points to what was described as the applicant's unreasonable attitude to costs by after initially commencing proceedings seeking no orders as to costs and agreeing to orders which did not include any cost orders against the first respondent.
- The second respondent said that the applicant had acted unreasonably and, indeed, to the extent of being aggressively unreasonable, by all of a sudden on the 20 January, only one day after reaching agreement with the first respondent, then insisting on indemnity costs against the second respondent. Indeed, the actions of the applicant were referred to in various ways including being unreasonable, extraordinary and even absurd.
- In regard to what Mr Collins pointed to as being the reasonable attitude of the second respondent, I was taken to a number of the letters which flowed backwards and forwards between the respective solicitors acting for the parties. As indicated, the originating application before amendment sought no order as to costs and, consistent with that, on 23 December 2014 the applicant's solicitors wrote to the second respondent's solicitors proposing consent orders essentially in the same form as those that were made today, and confirming that each party would bear their own costs of and incidental to the proceedings.
- On 14 January 2015, the second respondent's solicitors rejected that offer and advanced a counter offer which, among other things, included the deed to which I have already referred. That provoked an almost immediate response, and on 19 January 2015 an email was sent from the applicant's solicitors to the second respondent's solicitors. It relevantly provided:
“In light of the first respondent's successful request earlier today to be excused from the conference, we note that the only participants in tomorrow's conference will be the applicant and the second respondent. We also note that section 41(2)(a) of the PECR requires each active party to attend the conference and to be represented in the way required by section 41(3) of PECR. In this context our client notes that given that the offer to settle contained in our letter of 23rd December has not been accepted, it will be seeking the costs of its proceeding on an indemnity basis.”
- Consistent with that approach, on 30 January 2015, the applicant's solicitors wrote to the second respondent's solicitors again identifying the primary relief sought, and this time stating that they would accept the amount of $48,000, being the applicant's costs described as being fixed. On 17 February 2015 there was correspondence from the second respondent's solicitors, but then, perhaps more relevantly, on 17 February 2015, the second respondent's solicitors wrote stating, amongst other things, that without any admissions as to liability, they would consent essentially to the substance of the relief sought.
- The second respondent, however, maintained its position about a deed including mutual releases, a confidentiality clause, an indemnity clause and agreement not to make any complaints to any relevant statutory authority or Local Government. In that correspondence, the second respondent also offered to pay the amount of $15,000 by way of costs. And I should indicate ‑ I forgot to mention that there was a winding back of the applicant's costs insofar as it no longer wanted $48,000 but $35,000.
- As Mr Collins identified in his written outline, and, indeed, he relied on this information to a certain extent to highlight the reasonableness of his client's attitude, namely, that there was the offer to pay $15,000 in costs, and on 1 July 2015 there was an offer to pay $10,000 of the applicant's costs. As I have said, the real thrust of the application for indemnity costs was because of the unreasonable, extraordinary and even absurd behaviour on the part of the appellant.
- In my view, it seems quite clear to me that the second respondent, by maintaining the position, even on a “prima facie” basis, that it was not a proper party to the proceeding cannot be accepted. I accept Mr Williamson's submissions in that regard. Having regard to the nature of the relief sought, the second respondent was clearly a proper party to the proceedings at all material times.
- Indeed, one could well imagine that if proceedings were brought seeking the sort of relief that was, in fact, sought and in circumstances where a building certifier were not notified of such proceedings, then any relief granted by the court would almost inevitably be set aside by virtue of the fact that the certifier had not been given the opportunity to be heard.
- On balance, I consider that the second respondent's conduct has caused this matter to unreasonably drag on by, firstly, maintaining that position and, second, by insisting or persisting with its requirement that a deed be provided. Indeed, the situation is now that that requirement has been abandoned. There was no suggestion in the proceeding before me that the relief granted should in any way be tempered or subject to any such caveat.
- On 5 March 2015, the applicant through his solicitors put a proposition to the second respondent, namely, that agreement be reached concerning the substantive relief and then the issue of costs to be reserved and to be dealt with at a later time before the court if not able to be agreed. There has been significant delay, since 5 March 2015 and I raised the question of delay with Mr Williamson during submissions, that is, why it has taken so long for this matter to be dealt with, but it would appear that was through no fault of either of the parties. But as I said, in my view, the behaviour of the second respondent has unreasonably caused these proceedings not only to have to be dealt with in the manner that they finally were, but also caused them to unnecessarily drag on.
- The discretion to order costs that this court has, of course, is a statutory one, and the statutory basis or power to order costs has been considered and on a number of occasions I have referred just to one Cox & others v Brisbane City Council & another (No 2)  QPEC 78. There the court relevantly said:
“The discretion is an open one. It is not to be approached even on the basis that there is a presumption that costs should follow the event (as is the general rule in other courts dealing with ordinary civil litigation) or on the basis that there is a qualified protection against an adverse costs order as were previously the case in SPA.”
- The various examples given as to what might influence the decision‑maker's mind when making a costs order are set out within the relevant section. They are not meant to be exhaustive, but I would note that success is clearly a relevant factor but by no means a determinative one.
- Before going on further, I would refer to the quite recent decision of Paroz v Paroz & others (No 2)  QSC 157 where his Honour Justice Peter Lyons observed, after referring to a number of cases, that the ordinary rule was that costs would be payable on a standard basis and that the court would not ordinarily make costs orders other than on those bases unless there was some special or unusual feature which would warrant departure from making such orders. His Honour identified a number of matters, and of particular relevance, Mr Williamson pointed out, one was the imprudent refusal of an offer to compromise.
- I must say there seems to have been, to put it crudely, a degree of bloody mindedness on both sides. It strikes me as being somewhat odd that notwithstanding initially proceeding on an each party bear their own costs basis to costs on an indemnity basis in such a short period of time indicated a degree of intractability on the part of the applicant. However, as I have already indicated, the actions of the second respondent are such as to warrant an adverse costs order being made. That said, I also consider that the applicant through his solicitor's behaviour is such as to not warrant a costs order on an indemnity basis.
- When parties are in such fixed positions, as is the case here, it is always difficult to try and ascertain exactly what the appropriate starting point ought be in making any costs order, but, on balance, having regard to the material that I have and hearing the submissions, I consider the appropriate order is that the second respondent is to pay the applicant's costs from 5 March 2015.
- Published Case Name:
Lyons v Olive & Anor
- Shortened Case Name:
Lyons v Olive & Anor
 QPEC 62
06 Nov 2015