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Council of the City of the Gold Coast v Ashtrail Pty Ltd & Anor (No.3) QPEC 27
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Council of the City of the Gold Coast v Ashtrail Pty Ltd & Anor (No.3)  QPEC 27
COUNCIL OF THE CITY OF THE GOLD COAST
ASHTRAIL PTY LTD
TALRANCH PTY LTD
Planning and Environment Court
Application for adjournment
Planning and Environment Court of Queensland, Brisbane
20 June 2019
18 June 2019
Mr R Bain QC for the applicant Council
Mr R Litster QC for the respondents
McInnes Wilson Lawyers for the applicant Council
Synkronos Legal for the respondents
- On 18 June 2019, Mr Litster QC made an oral application for the adjournment of costs proceedings commenced by the Council of the City of the Gold Coast (the applicant). On 19 June 2019, I advised the parties of the orders I intended to make and that my reasons for those orders would follow shortly thereafter. These are my reasons.
- Following enforcement proceedings being brought by the applicant and after a hearing extending over nine days, on 29 March 2019 I delivered judgment which relevantly included a number of declarations and orders. Those orders were to the effect that Ashtrail Pty Ltd and/or Talranch Pty Ltd (the respondents) were required to meet a number of quite onerous obligations pursuant to conditions attaching to a development approval.
- Talranch Pty Ltd (the second respondent) is the registered proprietor of the subject land from which Ashtrail Pty Ltd (the first respondent) conducts various business activities under the name of Major Operator and Driver Training Services and Major Training Group. Those two companies, apart from being the respondents in the substantive proceedings and subsequent proceedings, are also part of a family group of companies referred to as the “Tenkate Group”, of which the company Tenkate Property Pty Ltd is also a part.
- On 2 May 2019, the respondents filed an application to stay the operation of Order 1 made by me on 29 March 2019, pending the outcome of an application for leave to appeal to the Court of Appeal. Application for leave to appeal and a draft notice of appeal was filed on 13 May 2019. The stay application was dealt with by me on 5 June 2019 with reasons being given on 18 June 2019. During that proceeding, the applicant accepted that a stay ought to be granted in respect of three of the obligations in issue, (conditions 10, 12 and 16) but opposed the granting of a stay in respect of the remaining two obligations (conditions 5 and 6). Subject to undertakings provided by Tenkate Property Pty and the second respondent, a stay was granted in respect of all of the obligations imposed pursuant to the aforesaid order.
- Prior to those events, on 3 May 2019 the applicant made an application seeking costs associated with the substantive proceeding. At that time it was aware of the intention of the respondents to appeal my substantive orders and to seek a stay. Notwithstanding that, following discussion between myself and counsel, orders were eventually made on 9 May 2019 designed to facilitate the hearing of the costs application. Those orders provided:
- By 24 May 2019, the Applicant is to file and serve any affidavit material on which it intends to rely with respect to costs;
- By 21 June 2019 the First Respondent and Second Respondent are to file and serve any affidavit material on which it intends to rely with respect to costs;
- By 12 July 2019, the Applicant is to file and serve written submissions with respect to costs;
- By 2 August 2019, the First and Second Respondent are to file and serve written submissions with respect to costs;
- By 17 August 2019, the Applicant is to file and serve any written submissions in reply;
- The matter is to be set down for a one day hearing before his Honour Judge Jones on 9 September 2019.
- On 27 May 2019, the applicant filed and served its affidavit material purportedly in compliance with Order 1.
- On 18 June 2019, I handed down my reasons and draft orders dealing with the stay application. After handing down those reasons, Mr Litster, without any apparent notice to Mr Bain QC, made his oral application in effect seeking that orders 2 to 6 inclusive made on 9 May 2019 be vacated. That application was opposed.
- The only substantive basis upon which Mr Litster grounded his application was that to deal with costs at this stage would raise the real risk of costs being wasted. Without having considered the merits of the application (and indeed that would be impossible given that most of the relevant material has yet to be completed), quite clearly potential costs orders might include that each party bear their own costs or that the respondents pay all or part of the applicant’s costs of the substantive proceedings. As Mr Litster pointed out, in the event that adverse costs orders were made against his clients, but they were to succeed on appeal, there would inevitably be flow-on consequences for any costs orders made by me. Another scenario raised by Mr Litster, one which he considered would even further complicate things, would be where his clients appeal was successful but only in part.
- Notwithstanding the wide powers of the Court of Appeal to deal with not only the substantive appeal but also any consequential order including as to costs, it can still be readily accepted that to proceed through to completion, these costs proceedings would be likely to result in at least some level of costs being effectively wasted in the event of a successful appeal. That of course is not the end of the matter because litigation by its very nature involves inherent risks. That is, despite the best efforts of the courts and the parties, there is always the risk that some of the costs expended will be, for one reason or another, effectively wasted. That said of course, all reasonable steps should be taken to avoid unnecessary and avoidable costs being incurred by litigants. That is a matter that weighs in favour of the respondent’s position.
- In this regard, the subject costs proceeding can be contrasted with the situation that would usually arise in other civil/commercial litigation where, as a general rule, costs follows the event. Exceptions to that general rule will always arise, but it does permit in most such cases for costs to be dealt with expeditiously and in a cost effective manner close to the conclusion of the substantive proceeding. As can be gleaned from the subject orders leading up to a full day of argument, that is not the case here. The costs associated with the resolution of this costs application will be substantial.
- The risk of costs being wasted however, has to be balanced with other matters that might nonetheless warrant dealing with costs, notwithstanding the risks of the type identified by Mr Litster. There can be no doubt that insofar as the applicant is concerned, it wishes to have the costs issue determined as quickly as is practicable. That is readily understandable. Also, for the purposes of dealing with costs, it is a far more satisfactory outcome to deal with them at a time as close to the determination of the substantive proceedings as is practicable. The closer the two issues are dealt with in time the better. Recollection and impressions seem to inevitably fade with time.
- I also consider the conduct of the respondent in this matter to be at best discourteous. There is no reason that I can see, and indeed no explanation or excuse was advanced by Mr Litster, as to why it was left until 18 June 2019 to put the applicant on notice of its intention to have the subject orders vacated. The stay application was filed on 2 May 2019, more than three weeks prior to the applicant being required to file its affidavit material. Ample time existed for the respondents to advise that, in the event of their stay application being successful, they would seek the vacation of the subject orders. Instead, they chose to remain silent and to allow the applicant to file and serve its material generally in accordance with the court orders. This has two immediate consequences. First, the applicant has incurred the costs and time spent in preparing that material. Second, that the applicant’s material has been served also gives the respondents an element of tactical advantage in circumstances where they would be in possession of that part of the applicant’s material for an indeterminate period of time before having to respond.
- When the competing factors are brought into account, I consider this to be a very finely balanced case and one where the respondents’ conduct warrants little sympathy. On balance though, I consider that it is in the interests of both parties to adopt a course of action that reduces, as far as is practicable, the risk of wasted time and money. In this context, it also needs to be borne in mind that the granting of the stay accepts, as the applicant has, that the grounds of appeal could not be said to lack any real prospects of success or are “unarguable”.
- Accordingly, I propose to vacate orders 3 to 6 inclusive and substitute alternate orders. However, bearing in mind the conduct of the respondents to which I have referred where, had they acted in a more appropriate manner, the applicant would probably have been able to avoid the costs associated with having to file and serve its material, I consider it only appropriate to make orders dealing with its costs which might potentially be thrown away as a result of the oral application brought on 18 June 2019. I also consider it appropriate to require the respondents to file their material, subject to a varied time frame, upon which it intends to rely with respect to costs. I consider it appropriate to make such an order for two reasons. First, it seems to me likely that parts, if not most of the material filed on behalf of both the applicant and the respondents pursuant to orders 1 and 2 made on 9 May 2019, would include material which could be relied on in either prosecuting for or defending against costs orders. Second, while perhaps less importantly, I consider it only fair that both parties be, upon the vacation of the balance of the orders, in broadly the same tactical position.
- For these reasons the orders of the court are:
- Order 2 made on 9 May 2019 is varied to require the First Respondent and Second Respondent to, by 4pm 25 June 2019, file and serve any affidavit material upon which it intends to rely with respect to costs;
- Orders 3, 4, 5 and 6 made on 9 May 2019 are vacated;
- The issue of costs thrown away (if any) by the Applicant as a consequence of the adjournment of the costs proceedings are reserved;
- The parties are to list this proceeding for review as soon as is practicable after the appeal proceedings have been determined;
- The parties to have liberty to apply on the giving of two business days’ notice in writing.
Council of the City of Gold Coast v Ashtrail Pty Ltd & Anor  QPEC 12.
Council of the City of Gold Coast v Ashtrail Pty Ltd & Anor (No.2)  QPEC 26.
Uniform Civil Procedure Rules 1999 (Qld) r 681.
Council of the City of Gold Coast v Ashtrail Pty Ltd & Anor (No.2)  QPEC 26 at .
- Published Case Name:
Council of the City of the Gold Coast v Ashtrail Pty Ltd & Anor (No.3)
- Shortened Case Name:
Council of the City of the Gold Coast v Ashtrail Pty Ltd & Anor (No.3)
 QPEC 27
20 Jun 2019