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HPD Property Group Pty Ltd v Sunshine Coast Regional Council[2021] QPEC 27

HPD Property Group Pty Ltd v Sunshine Coast Regional Council[2021] QPEC 27

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

HPD Property Group Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 27

PARTIES:

HPD PROPERTY GROUP PTY LTD
(appellant)

v

SUNSHINE COAST REGIONAL COUNCIL
(respondent)

FILE NO/S:

2765 of 2020

DIVISION:

Planning and Environment

PROCEEDING:

Application for costs

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

17 March 2021, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2021

JUDGE:

Rackemann DCJ

ORDER:

Application for costs dismissed

CATCHWORDS:

PLANNING AND ENVIRONMENT – COSTS – where the respondent made an application in pending proceeding which sought orders to include further issues in its case – where the appellant seeks an application for the respondent to pay its costs in relation to the amended application in pending proceeding – whether costs should be awarded pursuant to s 60(1) of the Planning and Environment Court Act 2016 (Qld)

LEGISLATION:

Planning and Environment Court Act 2016 (Qld) ss 60(1)(e), (f)

COUNSEL:

M Connor (solicitor) for the appellant

H Stephanos for the respondent

SOLICITORS:

Connor O'Meara Solicitors for the appellant

Sunshine Coast Regional Council Legal Services for the respondent

  1. [1]
    There is an application for costs made by the appellant in this matter. The application is for the respondent to pay its costs of the respondent’s amended application in pending proceeding filed on the 16th of March 2021.  That application sought orders which altered the issues in the case, so as to include some further issues in the respondent’s case.  It also sought a direction in relation to the timing for a report of one of the council’s experts, Mr Curtis, in relation to the fields of architecture and urban design. 
  1. [2]
    When the application came on for hearing the appellant made an instanter application seeking an order to permit its existing experts to respond to any further written statement of evidence by Mr Curtis. Further, today was also the day for the return of an application brought by the appellant for the matter to be set down for hearing in Maroochydore.
  1. [3]
    The application for costs is said to be pursuant to section 60(1)(e) or (f) of the Planning and Environment Court Act in that, by seeking to notify an issue at this stage, the respondent is seeking to introduce new material. Further, given that its explanation is that it overlooked notifying the issue at an earlier time, when issues were notified in accordance with the Court’s earlier timetable, it is said that there is a default in the earlier order concerning when issues were required to be notified. I accept that the discretion to award costs has been enlivened, at least in respect to subparagraph (f). The question is as to how the discretion should be exercised.
  1. [4]
    The respondent’s oversight, with respect to the additional issue, became apparent as a result of the joint expert report prepared by the traffic engineers which referred to the provisions upon which the council now wishes to rely. The council notified the appellant promptly, after receiving the joint report, that it would wish to rely upon the provision which was referred to in the joint expert report and sought the appellant’s agreement to the expansion of the issues. The material does not disclose a formal response to that, but Mr Connor, who appeared for the appellant today, acknowledged that his response was along the lines of inviting the respondents to make an application, which he would consider and take instructions in respect of.
  1. [5]
    The relief was not opposed. It is not suggested that the addition of the issue would require there to be any further joint meeting process. The provision will be dealt with simply in the course of the reports for trial. There was, in short, little complexity or concern with respect to that application.
  1. [6]
    It has already been observed that the amended application, with respect to which costs were sought, also sought a direction in relation to the provision of a written statement to Mr Curtis in the fields of architecture and urban design. Mr Curtis is an expert who was nominated in relation to a number of different areas of expertise. Insofar as the fields of architecture and urban design are concerned, the appellant did not have an expert with the corresponding expertise. Accordingly, it would be expected that Mr Curtis would simply have a single report to the extent that his evidence was given with respect to those fields rather than him being engaged in a joint report process, since he had no counterpart in those fields. It appears, however, that some confusion arose between the parties because there was no express direction given by the Court in relation to the provision of Mr Curtis’ separate statement in relation to those fields of expertise. There was a difference of opinion as to whether a direction, which was given about the exchange of written reports of nominated experts where there was disagreement, was sufficiently broad to capture Mr Curtis and, in effect, prevent him from giving a later separate report in relation to fields of architecture and urban design. For that reason, the amended application was necessary to agitate that issue and once it was brought it was unopposed by the appellant.
  1. [7]
    I have already observed that the appellant took the opportunity to make an instanter application for an order which would, in effect, permit its client’s existing experts, or one or some of them, to provide evidence responding to Mr Curtis’ foreshadowed statement of evidence in relation to the fields of architecture and urban design. That is so even though the appellant’s experts were not notified as having expertise in those fields. It is that order which took up a deal of the debate today. Ultimately, the appellant was unsuccessful in seeking that order. Instead, an order was made to the effect that it should provide, to the respondent, the basis upon which it contends that any of its existing experts have the relevant expertise to respond to Mr Curtis’ statement and also provide a copy of the proposed statement of evidence by them so that any issue in that regard can be later ventilated.
  1. [8]
    The appellant’s application for the matter to be set down for hearing in Maroochydore was unopposed.
  1. [9]
    It will be evident from what I have said that today’s hearing has been concerned with a multiplicity of issues and with two separate applications. One, being setting the matter down in Maroochydore, was entirely uncontentious. The other, being the amended application, involved different elements. One was the provision of a further statement by Mr Curtis which was necessary to bring because of some confusion which arose between the parties as to the effect of an earlier Court order. That was not ultimately controversial between the parties. One was a largely unsuccessful instanter application by the appellant to seek an order today that would have provided for its experts to respond to a statement of evidence by Mr Curtis. Thirdly was the extension of the issues which arose because of the respondent’s oversight in its earlier notification. Whilst the respondent’s failure to notify that issue at an earlier time may have raised the discretion in relation to costs, it seems to me that, having regard to the multiplicity of applications and issues that were dealt with in the course of the day on the return date, the discretion should be exercised so as to order there should be no order as to costs.
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Editorial Notes

  • Published Case Name:

    HPD Property Group Pty Ltd v Sunshine Coast Regional Council

  • Shortened Case Name:

    HPD Property Group Pty Ltd v Sunshine Coast Regional Council

  • MNC:

    [2021] QPEC 27

  • Court:

    QPEC

  • Judge(s):

    Rackemann DCJ

  • Date:

    17 Mar 2021

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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