MC Property Investments v Unity Water (No 2)
[2018] QPEC 1
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- MC Property Investments v Unity Water (No 2)[2018] QPEC 1
- Add to List
MC Property Investments v Unity Water (No 2)[2018] QPEC 1
MC Property Investments v Unity Water (No 2)[2018] QPEC 1
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | MC Property Investments v Unity Water (No.2) [2018] QPEC 1 |
PARTIES: | MC PROPERTY INVESTMENTS PTY LTD ACN 076 608 243 (Appellant) and UNITY WATER (Respondent) |
FILE NO/S: | 169/16 |
DIVISION: | Planning and Environment |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Planning and Environment Court at Maroochydore |
DELIVERED ON: | 9 February 2018 |
DELIVERED AT: | Planning and Environment Court at Hervey Bay |
HEARING DATE: | On the papers |
JUDGE: | Robertson DCJ |
ORDER: | Appellant to pay Respondent’s costs of and incidental to the appeal including costs relating to the costs application to be agreed or assessed on the standard basis. |
CATCHWORDS: | COSTS – where Appellant appealed against a Review Decision refusing to withdraw an Infrastructure Charges Notice issued by the Respondent – whether the narrow grounds pursued by the Appellant ultimately had any reasonable prospects of success – where Respondent wholly succeeded in its opposition to the appeal – whether there were any reasonable prospects of success. Legislation South-East Queensland Water (Distribution and Retail Restructuring) Act 2009 ss 99BRBO(3)(a),(b) and (c), 99BRCJ(2)(b)(iii), 99BRJC(3A)(a) and (b) Planning Act 2016 Sustainable Planning Act 2009 s 457 Cases Queensland Heritage Council v The Corporation of the Sisters of Mercy of the Diocese of Townsville [2014] QCA 165; (2014) QPELR 761 Hydrox Nominees Pty Ltd v Noosa Shire Council (No.2) (2015) QPELR 168 |
COUNSEL: | M Batty counsel for the respondent |
SOLICITORS: | A Davis of QuDA Lawyers for the appellant Thynne MaCartney Lawyers for the respondent |
- [1]On 6 December 2017, the court dismissed an appeal by the appellant against an Internal Review Decision by the respondent not to withdraw an Infrastructure Charges Notice issued to the appellant on 4 November 2016. As the reasons reveal, appeal rights are governed by the provisions of the South East Queensland Water (Distribution and Retail Restructuring) Act 2009 (“the Act”), and are not “at large” where the court stands in the shoes of the decision maker at first instance. By reference to Queensland Heritage Council v The Corporation of the Sisters of Mercy of the Diocese of Townsville [2014] QCA 165; (2014) QPELR 761, and the relevant provisions in the Act relating to appeal rights, the court held that the appellant failed to establish any of the grounds in s 99BRBO(3) of the Act, and in effect, failed at the first hurdle. Indeed the appellant did not attempt to establish either of the grounds referred to in s 99BRBO(3)(a) or (b); rather it focused on the concept of “additional demand” referred to in (c) and s 99BRCJ of the Act. This in turn was based on the highly speculative argument that because the appellant’s construction of a 4 storey multiple dwelling building containing 20 lots was an “as of right” use as a result of a council decision during the course of what was a long and complex development of what is described as the “base parcel” in the reasons; no further development permits were required under the Planning Act, therefore as a proper construction of s 99BRJC(2)(b)(iii), the appellant’s development did not involve any “additional demand” on trunk infrastructure. As the reasons reveal, this would indeed be a surprising result, as the land prior to the development was one lot, and subsequent to it was 20 lots an additional 19 users connected to trunk infrastructure. In any event, the court held that both the exceptions contained in s 99BRJC(3)(A)(a) and (b) applied.
- [2]The respondent applies for its costs on the standard basis. The appellant robustly opposes the application referring to some of the respondent’s submissions as a “cheap shot” and that there is “cynicism implicit in the respondent’s submission”.
- [3]Section 457 of SPA provides (relevantly):
“(1) costs of a proceeding or part of a proceeding, including an application in a proceeding, are in the discretion of the court;
(2) In making an order for costs, the court may have regard to any of the following matters –
- (a)the relative success of the parties in the proceeding;
- (b)the commercial interests of the parties in the proceeding;
…
- (d)whether the party commenced or participated in the proceeding without reasonable prospects of success.
…
- (i)whether a party has acted unreasonable in the conduct of the proceeding, including, for example –
- (i)by not giving another party reasonable notice of the party’s intention to apply for an adjournment of the proceeding; or
- (ii)by causing an adjournment of the proceeding because of the conduct of the party.”
- [4]The court’s discretion to award costs “is a broad one, to be exercised judicially, but without any presumption that costs order follow the event, or otherwise, on the basis that there is some qualified protection against an adverse costs order. While the success of a party is not a determinative factor, it is clearly a relevant and, in some cases, a significant consideration”.[1]
- [5]The appellant goes on to argue that the other sub-sections of s 457 of the SPA set out above come into play in the circumstances here.
Relative success
- [6]The respondent submits that it has enjoyed complete success in the appeal. As it notes in its written outline, in dismissing the appeal, the court found that by reference to a threshold argument “it follows that the appeal must fail at the first hurdle”; the appellant lost on its construction arguments; in any event, two exceptions to the appellant’s construction argument were clearly met; and the appeal was without merit.
- [7]The appellant suggests that the finding at [23] of the reasons set out and referred to above is “a repetition of the respondent’s submission” and perhaps not “the court’s finding”. Indeed it is a repetition of Mr Batty’s submission, on the basis that it was clearly and unequivocally correct, as the appellant should have recognised. The “construction” point is covered by the factual findings set out at (d), (e) and (h) of [23] of the reasons.
- [8]The appellant’s costs submission seeks to re-litigate the “construction” point quite impermissibly; apparently failing to appreciate that even if the construction contended for was found to be correct, which it was not, the court found that both the exceptions set out in s 99BRCJ(3A) applied, which is what the respondent argued in its letter to the appellant’s solicitor dated 9 August 2017.[2]
- [9]On the facts before the court the appellant never had any reasonable prospects of success. If indeed it still maintains its position, it had the right to appeal which it did not exercise.
- [10]It is not necessary for me to consider the competing arguments focussed on s 457(2)(b). I am satisfied that given the complete success of the respondent which was obliged to contest the appeal; and the appellant’s pursuit of a construction argument that was bound to fail, it is a clear case in which the appellant should pay the respondent’s including costs associated with the costs application to be agreed or assessed on the standard basis and I so order.