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Traspunt No. 7 Pty Ltd v Moreton Bay Regional Council[2021] QPEC 9

Traspunt No. 7 Pty Ltd v Moreton Bay Regional Council[2021] QPEC 9

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Traspunt No. 7 Pty Ltd v Moreton Bay Regional Council [2021] QPEC 9

PARTIES:

TRASPUNT NO. 7 PTY LTD (ACN 123 780 889)

(Appellant)

v

MORETON BAY REGIONAL COUNCIL

(Respondent)

FILE NO/S:

2756 of 2018

DIVISION:

Planning and Environment

PROCEEDING:

Application for costs

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

26 February 2021

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions received 30 October 2020, 16 November 2020 and 23 November 2020

JUDGE:

Kefford DCJ

ORDER:

The matter be listed for review at 9 am on 5 March 2021

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – COSTS – where the appellant’s appeal against a condition of a development approval was dismissed – where respondent sought an order as to costs – whether the proceeding was frivolous or vexatious – whether costs should be assessed on the indemnity basis

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 14

Planning and Environment Court Act 2016 (Qld), s 59, s 60

CASES:

Baygol Pty Ltd v Foamex Polystyrene Pty Ltd [2005] FCA 1089, considered

Burdekin Shire Council v Pioneer Sugar Mills Pty Ltd & Anor [2004] QPEC 28; [2005] QPELR 13, approved

Colgate-Palmolive Company & Anor v Cussons Pty Limited [1993] FCA 801; (1993) 46 FCR 225, applied

Ebis Enterprises Pty Ltd v Sunshine Coast Regional Council [2011] QCA 15, applied

Mees v Roads Corporation [2003] FCA 410, considered

Mudie v Gainriver Pty Ltd (No. 2) [2002] QCA 546; [2003] 2 Qd R 271, cited

Sincere International Group Pty Ltd v Council of the City of Gold Coast (No.2) [2019] QPEC 9; [2019] QPELR 662, approved

The Chief Executive administering the Environmental Protection Act 1994 v Baal Gammon Copper Pty Ltd & Anor (No. 2) [2020] QPEC 49, approved

Traspunt No. 7 Pty Ltd v Moreton Bay Regional Council [2020] QPEC 50, cited

COUNSEL:

D O’Brien QC and B Rix for the appellant
D Gore QC and J Ware for the respondent

SOLICITORS:

Macpherson Kelley for the appellant
Moreton Bay Regional Council Legal Services for the respondent

TABLE OF CONTENTS

Introduction2

Background3

How did the issues in dispute evolve?4

What did the expert evidence address?7

Was the appeal frivolous and/or vexatious?8

Should costs be awarded on an indemnity basis?17

Has Traspunt continually failed to properly consider the shortcomings of its case?18

Did Traspunt imprudently reject an offer of compromise?20

Are the Council’s grounds sufficient to justify an order for indemnity costs?23

Conclusion24

Introduction

  1. [1]
    On 21 September 2020, I dismissed an appeal by Traspunt No. 7 Pty Ltd (“Traspunt”) against a condition of a development approval.[1] 
  2. [2]
    Moreton Bay Regional Council (“the Council”) has applied for an order that Traspunt pay its costs of the appeal for the period from 27 November 2019 on an indemnity basis, or such other or further order the Court deems appropriate. 
  3. [3]
    The general rule under s 59 of the Planning and Environment Court Act 2016 (Qld) is that each party must bear its own costs.  However, the Council contends that the power to grant the relief it seeks arises under the exception in s 60(1)(b) of the Planning and Environment Court Act 2016, which states:

“(1) The P&E Court may make an order for costs for a P&E Court proceeding as it considers appropriate if a party has incurred costs in 1 or more of the following circumstances—

  1. (b)
    the P&E Court considers the proceeding to have been frivolous or vexatious;

Example

The P&E Court considers a proceeding was started or conducted without reasonable prospects of success.[2]

  1. [4]
    Traspunt opposes the application for costs. 
  2. [5]
    The submissions advanced by the parties call for determination of two issues.
  1. Was the appeal frivolous and/or vexatious?
  2. If the discretion to award costs is enlivened under s 60(1)(b) of the Planning and Environment Court Act 2016, should costs be awarded on an indemnity basis?
  1. [6]
    Before dealing with each issue, it is convenient to set out some background matters.

Background

  1. [7]
    The appeal involved a challenge to condition 6 of a development permit for reconfiguring a lot (2 into 46 lots and an access easement) granted by the Council with respect to land located at 18-26 Burbury Road, Morayfield (“the subject premises”).
  1. [8]
    Condition 6 required land that was identified on the approved layout plan as “Road Resumption” to be dedicated as road reserve at no cost to the Council.  The area of land was 1 264 square metres. 
  2. [9]
    Condition 6 was imposed under s 665 of the Sustainable Planning Act 2009 (Qld), the equivalent of which is now s 145 of the Planning Act 2016 (Qld).  Amongst other restrictions, a condition under s 145 of the Planning Act 2016 cannot be imposed if it is about trunk infrastructure.
  1. [10]
    Trunk infrastructure is relevantly defined in schedule 2 of the Planning Act 2016 to mean only three things:
    1. (a)
      development infrastructure identified in a LGIP as trunk infrastructure;
    2. (b)
      development infrastructure that, because of a conversion application, becomes trunk infrastructure; or
    3. (c)
      development infrastructure that is required to be provided under a condition under s 128(3) of the Planning Act 2016.
  2. [11]
    By the end of the hearing, the parties agreed the appeal was confined to one issue, namely:[3]

“Whether the dedication required by condition 6 of the Negotiated Decision Notice of 6 July 2018 satisfies the requirements of s 128(2) and (3) the Planning Act 2016 (PA) for the imposition of a “necessary infrastructure condition” under s 128, namely:

  1. (a)
    the LGIP does not identify adequate trunk infrastructure to service the subject premises;
  1. (b)
    the development infrastructure services development consistent with the assumptions in the LGIP about type, scale, location or timing of development; and
  1. (c)
    the development infrastructure is necessary to service the premises.”
  1. [12]
    The above three requirements are cumulative.  Traspunt had to succeed on all three limbs of the issue to prevail.  It was uncontroversial that the dedication required by the condition was a form of “development infrastructure”.[4]
  2. [13]
    The evolution of the issues in dispute is important in the context of the Council’s application for costs.

How did the issues in dispute evolve?

  1. [14]
    On 7 August 2019, His Honour Judge Rackemann made orders to define the issues in dispute in the appeal.  The orders required:
    1. (a)
      Traspunt to provide the Council with any amended notice of appeal by 21 August 2019;
    2. (b)
      the Council to provide Traspunt with a statement of facts, matters and contentions by 11 September 2019; and
    3. (c)
      Traspunt to provide the Council with any statement in reply by 2 October 2019.
  2. [15]
    By an Amended Notice of Appeal (filed with leave on 26 November 2019, but provided to the Respondent on 30 August 2019), Traspunt relevantly sought an order that condition 6 be deleted because:
    1. (a)
      it did not comply with s 665 of the Sustainable Planning Act 2009 or s 145 of the Planning Act 2016 as, amongst other matters, it was a condition about trunk infrastructure (rather than non-trunk infrastructure); and
    2. (b)
      it did not comply with s 65 of the Planning Act 2016 as it was not reasonable or relevant.
  3. [16]
    The Respondent’s Statement of Facts, Matters and Contentions was served on Traspunt on 24 September 2019.  It set out the Council’s argument about why the dedication was non-trunk infrastructure.  In paragraph 11(b), the Council alleged that s 128(3) of the Planning Act 2016 was not engaged in relation to condition 6 because one of the necessary pre-conditions was not met.  This is because, according to the Council, the Local Government Infrastructure Plan (“LGIP”) did identify adequate trunk road infrastructure to service the premises the subject of the appeal.  The infrastructure that the Council said was adequate was Oakey Flat Road, to which the subject premises would gain access via Burbury Road and the proposed new road.
  4. [17]
    The Appellant’s Statement of Facts, Matters and Contentions in Reply was filed and served on 18 October 2019.  In paragraph 11(b), Traspunt denied the allegation in paragraph 11(b) of the Respondent’s Statement of Facts, Matters and Contentions.  It did so on two bases.   First, the unformed dedicated road adjoining the subject premises (“the Clark Road Extension”) was not identified in the LGIP.[5]  Second, the connection of the proposed development to Oakey Flat Road through Burbury Road was not adequate to service the proposed development.
  5. [18]
    By an application in pending proceeding filed on 15 November 2019, Traspunt sought an order that the development be allowed to start before the appeal was determined under s 72(2)(b) of the Planning Act 2016.  Relevantly, two of the grounds relied on were:

“3. The issues in dispute in the Appeal are limited to whether the Dedication is for trunk or non-trunk infrastructure;

  1. There is no dispute between the parties as to whether the area of the Dedication is to be provided to the Respondent.”

(emphasis added)

  1. [19]
    The Outline of Argument of the Appellant filed on 26 November 2019 in relation to the application in pending proceeding included the following:

“20. Further, there is no controversy between the parties as to whether the road reserve the subject of the Condition (Road Reserve) will be provided; rather, the dispute between the parties is solely whether the dedication of the Road Reserve by the Appellant to the Respondent amounts to the provision by the appellant of trunk or non-trunk infrastructure.

  1. As it is uncontroversial that the Road Reserve will in fact be provided by the Appellant, the disposition of the Appeal can only result in one of two binary outcomes:
  1. (a)
    If the appeal is decided favourably to the Appellant and the dedication of the Road Reserve is found to amount to the provision of trunk infrastructure, the Appellant will be entitled to infrastructure credits for the road resumption; and
  1. (b)
    If the appeal is decided favourably to the Respondent and the area of dedication is regarded as non-trunk infrastructure, the Appellant will not be entitled to infrastructure credits for the road resumption.
  1. Neither of such outcomes will affect the physical outcome of the development as, in both outcomes, the Road Reserve will be dedicated to the Respondent …”

(emphasis added, footnotes omitted)

  1. [20]
    The application in pending proceeding was determined by His Honour Judge Rackemann on 26 November 2019.  He made an order as follows:

“UPON THE COURT BEING SATISFIED THAT the outcome of the Appeal will not be affected if the development is started before the Appeal is decided

IT IS ORDERED THAT:

  1. The development:
  1. (a)
    may start before the Appeal is decided; and
  1. (b)
    is subject to the conditions contained in the Negotiated Decision Notice dated 6 July 2018 (Negotiated Decision Notice), save for Condition 6 of the Negotiated Decision Notice insofar as it relates to whether the land is to be dedicated at no cost to the Council.”
  1. [21]
    Traspunt’s submissions did not reflect the position it adopted in its Amended Notice of Appeal, namely that condition 6 should be deleted.  The submissions made to secure the order of His Honour Judge Rackemann involved a concession that, if the condition was not imposed under s 128 of the Planning Act 2016, it was a lawful condition under s 145 of the Planning Act 2016.  This is because, unless the condition was lawful under either s 128 or s 145 of the Planning Act 2016, it was a prohibited condition under s 66 of the Planning Act 2016 (and could not be imposed).
  2. [22]
    As I have noted in my reasons for judgment:

“Traspunt bears the onus in the appeal.2  It no longer contends that condition 6 should be deleted.  Rather, Traspunt now contends that condition 6 should be amended to delete the statement that it is to be dedicated at no cost to the Council and to record that it is imposed under s 128 of the Planning Act 2016 (Qld)In the event I am not persuaded that the condition should be imposed under s 128, Traspunt concedes that the condition can be lawfully imposed under s 145 of the Planning Act 2016 (Qld),3 being the equivalent of s 665 of the Sustainable Planning Act 2009 (Qld).

2 See s 45 of the Planning and Environment Court Act 2016.

3 Traspunt’s change of position was made apparent to the Court in its Outline of Argument of the Appellant filed by leave with the Court on 26 November 2019 (Exhibit 17), particularly in paragraphs 19 to 25.  The full effect of those submissions, which spoke of a “binary outcome” are best appreciated by reference to the definitions of “trunk infrastructure” and “non-trunk infrastructure” under s 6 and Schedule 2 of the Planning Act 2016.  In reliance on those submissions, the Court made an order (Exhibit 18), under s 72(2) of the Planning Act 2016, permitting the development to start before the appeal was decided.  A concession that the condition was lawful under s 145 of the Planning Act 2016 was necessary to secure the order.  On day 2 of this hearing, Mr O’Brien QC, Counsel for Traspunt, acknowledged the effect of Traspunt’s concession.”

(emphasis added)

  1. [23]
    In the Appellant’s Submissions on Costs, Traspunt acknowledges that the effect of its submissions, and the consequential order on 26 November 2019, was to concede that the condition would be lawful under s 145 of the Planning Act 2016 in the event it failed to demonstrate that it was lawful under s 128 of the Planning Act 2016.  Relevantly, Traspunt’s submissions state:[6]

“As noted by the Court ([6] RJ]), it was conceded by Traspunt on the morning of Day 2 of the trial, after the matter was correctly raised by the Court, that the effect of the order made by Rackemann DCJ on 26 November 2019 was to reduce the matters in dispute to the one issue, namely whether the dedication required by condition 6 of the Negotiated Decision Notice of 6 July 2018 satisfied the requirements of ss.128(2) and (3) of the PA for the imposition of a “necessary infrastructure condition” and that, if that question was answered in the negative, the dedication required by condition 6 of the Negotiated Decision Notice pursuant to s.145 of the PA would stand. Neither parties appreciated the precise consequence of that order until the matter was raised by the Court on the morning of Day 2 of the hearing. The Council had, on the first day of the trial, agreed to a list of issues being tendered which included as a question whether the dedication was valid under s.145 of the PA.”

What did the expert evidence address?

  1. [24]
    On or about 16 December 2019, Traspunt filed and served an affidavit of a traffic engineer, Mr Stuart Holland.  Mr Holland expressed no opinion about whether the LGIP identified adequate trunk infrastructure to service the subject premises or whether the dedication was necessary to service the subject premises.
  2. [25]
    On or about 2 March 2020, the Council filed and served an affidavit of a traffic engineer, Mr Andrew Douglas.  Mr Douglas opined that the LGIP identified adequate trunk infrastructure to service the subject premises and that the dedication was not necessary to service the subject premises.
  3. [26]
    On or about 31 March 2020, Traspunt filed and served a further affidavit of Mr Holland.  In that affidavit, Mr Holland agreed with Mr Douglas that the LGIP identified adequate trunk infrastructure to service the subject premises without the dedication.

Was the appeal frivolous and/or vexatious?

  1. [27]
    The Council submits that the Court’s power is engaged by s 60(1)(b) of the Planning and Environment Court Act 2016.  Using the language of the example to the provision, the Council contends that, from 27 November 2019, the proceeding was “conducted without reasonable prospects of success”.  The example in s 60(1)(b) of the Planning and Environment Court Act 2016 is part of the Act.[7]  As such, it gives meaning to the expression “frivolous or vexatious”.[8] 
  2. [28]
    The phrase “without reasonable prospects of success” was considered in Sincere International Group Pty Ltd v Council of the City of Gold Coast (No. 2).[9]  His Honour Judge Williamson QC observed:[10]

“The phrase ‘without reasonable prospects of success’ has been held to equate its meaning with ‘so lacking in merit or substance as to be not fairly arguable’.[11] A case which is not fairly arguable is one that is regarded as ‘bound to fail’.[12] This is a concept that falls appreciably short of “likely to succeed”.[13] A lack of success does not mean that a proceeding had no reasonable prospects, or lacked merit.[14]

  1. [29]
    The Council carries the onus of proving that Traspunt’s case is frivolous or vexatious.[15]  The standard of “frivolous or vexatious” is a high standard to meet.[16]  The inquiry turns on matters of fact and degree.[17]  Something more than a lack of success needs to be shown.[18]
  1. [30]
    The Council submits that Traspunt’s case was doomed to fail from 27 November 2019.  It says that from that point on, Traspunt could only succeed if s 128(2) of the Planning Act 2016 was engaged in relation to the dedication.[19]  Under s 128(2), Traspunt was required to demonstrate that the Council’s LGIP did not identify adequate road trunk infrastructure to service the subject premises; and that the dedication was necessary to service the subject premises.[20] 
  2. [31]
    Traspunt does not dispute that to succeed it had to demonstrate that s 128(2) of the Planning Act 2016 was engaged.  It accepts that it carried the onus of establishing that:
    1. (a)
      the Council’s LGIP did not identify adequate road trunk infrastructure to service the subject premises; and
    2. (b)
      the dedication was necessary to service the subject premises.
  3. [32]
    These issues called for determination of three intermediate facts, namely:
    1. (a)
      what trunk infrastructure the LGIP identified to service the subject premises;[21]
    2. (b)
      whether the identified trunk infrastructure was adequate to service the subject premises;[22] and
    3. (c)
      whether the dedication required under condition 6 was necessary to service the subject premises.[23]
  4. [33]
    Each of these intermediate facts were the subject of consideration in my reasons for judgment. 
  5. [34]
    The Council says that Traspunt’s case was not fairly arguable for three reasons. 
  6. [35]
    First, the Council submits that the s 128 ground was contrary to the clear and uncontested evidence of the traffic engineers that:
    1. (a)
      the identified trunk infrastructure was adequate to service the subject premises; and
    2. (b)
      the dedication required under condition 6 was not necessary to service the subject premises.
  1. [36]
    The Council notes that I found that the uncontested evidence of both traffic engineers was that the LGIP identified adequate trunk infrastructure to service the subject premises without the provision of the dedication.  This was because of the proposed access via local streets, then Burbury Place to the south (or Lakeview Road to the north) and ultimately to Oakey Flat Road.
  2. [37]
    Second, the Council submits that the six arguments that Traspunt raised at the hearing to overcome the overwhelming expert evidence against it in relation to these factual determinations were found to be, variously, not supported by the evidence, irrelevant to a consideration of the issue, or misconceived. 
  3. [38]
    Third, the Council submits that Traspunt was, or should have been, aware from at least 27 November 2019, that its case was not fairly arguable.  In support of its submission, the Council notes that in paragraph 11(b) of the Respondent’s Statement of Facts, Matters and Contentions[24], it alleged that there was adequate road infrastructure identified in the LGIP to service the subject premises.  It identified the infrastructure to be Oakey Flat Road, to which the subject premises would have access via Burbury Road and the proposed new road.  That allegation was subsequently supported by the opinions of the traffic engineers and was accepted by me.  Further, the Council says the Appellant’s Statement of Facts, Matters and Contentions in Reply[25] provided no meritorious basis for denying paragraph 11(b) of the Respondent’s Statement of Facts, Matters and Contentions.  Two bases were provided for the denial.  They were to the effect that the existing access to the subject premises was not adequate; and the Clark Road Extension was necessary to provide adequate access.  The Council says that the allegation lacked any logical foundation, even at the time it was made.  This is because the Council had approved the proposed reconfiguration without the need for access from the Clark Road Extension and, in any event, the dedication would not, of itself, have provided that access.  The Council submits that subsequent events, including the uncontested opinions of the traffic engineers, and their acceptance by this Court, confirm the lack of merit in this argument.  Finally, the Council says that the first time Mr Holland provided evidence in the case directly addressing the s 128 ground was in his affidavit of 31 March 2020.  He agreed with Mr Douglas’ views.  As such, his evidence provided no evidentiary support for Traspunt’s allegation.  The Council says that Traspunt should have ensured it had an evidentiary foundation for the allegation, given it was a threshold issue in Traspunt’s case.
  4. [39]
    As I have already mentioned above, Traspunt does not dispute that, in order to succeed, it was required to demonstrate that the Council’s LGIP did not identify adequate road trunk infrastructure to service the subject premises; and that the dedication was necessary to service the subject premises.  However, it submits that the three arguments advanced by the Council do not demonstrate that its case was not fairly arguable
  5. [40]
    In support of its submission, Traspunt says that an erroneous approach to the construction of s 128(2) of the Planning Act 2016 infected my findings of fact that:
    1. (a)
      the identified trunk infrastructure was adequate; and
    2. (b)
      the dedication was not necessary to service the subject premises.
  6. [41]
    Traspunt says that my findings were made on the basis that “adequate trunk infrastructure” means infrastructure that was presently required to service the subject premises.  It submits that it was open for it to contend that the term “adequate trunk infrastructure” should instead be construed to mean infrastructure that is needed, either now or in the future, to service the premises.  It further submits that the effect of the expert evidence was that the dedication was development infrastructure needed in the future to service the subject premises.
  7. [42]
    Assuming its construction is adopted, Traspunt submits that it was fairly arguable that the effect of the traffic engineers’ evidence was that the dedication was for development infrastructure that was required not now, but in the future, and that therefore there was inadequate trunk infrastructure under s 128(2) of the Planning Act 2016.  It provides two examples in support of this submission. 
  8. [43]
    The first example is the evidence of the Council’s traffic engineer, Mr Douglas, that:

“In the absence of the condition [to dedicate the land], the safety and efficiency of the transport network of which the unconstructed portion of Clarke Road is a component would be compromised impacting the safe and efficient delivery of the infrastructure network as currently indicated in its long-term planning. Specifically, it will comprise the Respondent’s long-term planning … ”

(emphasis added by Traspunt)

  1. [44]
    The second example provided by Traspunt is the evidence of its traffic engineer, Mr Holland, who opined that:

“as to paragraphs 40 to 41, whilst not specifically stated, I interpret Mr Douglas to be saying that the land dedication the subject of this proceeding is required to accommodate “future trunk infrastructure”. I agree that:

  1. (i)
    The land is required to accommodate future land infrastructure; and
  1. (ii)
    That the land should therefore not be prejudiced.”

(emphasis added by Traspunt)

  1. [45]
    I reject these submissions.  Although I did not accept Traspunt’s construction, that did not infect my findings of fact.  As is evident from the findings in paragraphs [24] to [29], [37] to [39] and [43] of my reasons for judgment, the mere acceptance of Traspunt’s interpretation of s 128(2) of the Planning Act 2016 did not influence my findings about the opinions expressed by the traffic engineers.  Regardless of the meaning of “adequate trunk infrastructure” in s 128(2) of the Planning Act 2016, the evidence of the traffic engineers was unequivocal.  Both expressed the opinion that the LGIP identified adequate trunk infrastructure.  It was not put to either traffic engineer that their opinion was premised on an incorrect assumption that “adequate trunk infrastructure” means infrastructure that was presently required. 
  2. [46]
    In addition, I do not accept that it is fairly arguable that the effect of the traffic engineer’s evidence, including that referred to in paragraphs [43] and [44] above, was that the dedication was for development infrastructure that was required not now, but in the future, and that there was therefore inadequate trunk infrastructure under s 128(2) of the Planning Act 2016
  3. [47]
    The evidence of Mr Douglas referred to in paragraph [43] above does not relate to whether the LGIP identified adequate trunk infrastructure to service the subject premises, either now or in the future.  Rather, it concerns the need for the dedication to address the safety and efficiency of the transport network generally.  The evidence was clearly directed to the Council’s case that the condition was lawfully imposed under s 145 of the Planning Act 2016.  That provision permits a local government to impose a development condition about providing development infrastructure to protect or maintain the safety or efficiency of the infrastructure network of which the non-trunk infrastructure is a component. 
  4. [48]
    As for the evidence of Mr Holland referred to in paragraph [44] above, the extract referred to by Traspunt forms part only of a paragraph.  Traspunt’s extract provides a false impression of the issue being addressed by Mr Holland.  Mr Holland’s evidence was:

“3. I have reviewed the Affidavit of Andres Douglas sworn 28 February 2020 and filed on behalf of the Respondent in this Appeal on 2 March 2020 (Douglas Affidavit) and I have outlined my comments in relation to that affidavit below.

Douglas Affidavit Evaluation

  1. In response to the Douglas Affidavit I say as follows:

  1. (b)
    As to paragraphs 26 to 30, I agree with Mr Douglas that the LGIP identifies adequate trunk infrastructure to service the subject land, without provision of the road widening.
  1. (c)
    As to paragraphs 40 to 41, whilst not specifically stated, I interpret Mr Douglas to be saying that the land dedication the subject of this proceeding is required to accommodate “future trunk infrastructure”.  I agree that:
  1. (i)
    the land is required to accommodate future land infrastructure; and
  1. (ii)
    that the land should therefore not be prejudiced.

However, it does not then follow that the land the subject of the Appeal should be provided to the Council free of cost.  There is nothing in the proposed development the subject of this proceeding that requires the land to be provided.  The upgrade of Clark Road (which would presumably be accommodated within the expanded road reserve) is not necessary to service the proposed development.  The land dedication’s only practical purpose is to serve a wider function that is not directly related to the subject development (that is, a trunk infrastructure function).

I also note for completeness, that I have not sighted the road planning layout prepared by the Respondent on which the extent of road widening requirement along the Clark Road frontage of the land has been based.

  1. (d)
    As to paragraphs 42 to 43, without connection to the north via Lakeview Drive, the development could still rely on access via the existing Burbury Road.  Even if access via Clarke Road between the site and Oakey Flat Road were required to service the development, via a non-trunk road such as the Respondent’s Contemporary Residential Street, it could be satisfactorily accommodated within the existing Clark Road reservation without the subject widening.”

(emphasis added)

  1. [49]
    It is apparent from this evidence that Mr Holland was of the view that the proposed dedication is relevant to safety and efficiency of the transport network generally (which would authorise imposition of the condition under s 145).  It is equally clear that Mr Holland did not view the dedication as necessary to service the subject premises (which is a prerequisite to a lawful condition under s 128).  This impression of the effect of Mr Holland’s evidence is reinforced when one considers those paragraphs of Mr Douglas’s affidavit to which Mr Holland refers.  They state:

Does the Respondent’s LGIP identify adequate trunk infrastructure to service the Subject Land?

  1. The Respondent’s LGIP mapping identifies the following existing trunk road infrastructure and trunk road upgrades in the vicinity of the Subject Land, within the life of the LGIP:
  1. (a)
    Oakey Flat Road as an existing trunk road;
  1. (b)
    A future road upgrade along Oakey Flat Road north of Clark Road; and
  1. (c)
    A future intersection upgrade at the intersection of Burbury Road and Oakey Flat Road(trunk).
  1. On my review of the approved plans which accompanied the NDN and having undertaken inspections of the locality, external access is to be obtained through:
  1. (a)
    Lakeview Road to the north which ultimately connects to Oakey Flat Road; and
  1. (b)
    Burbury Road to the south which also ultimately connects to Oakey Flat Road.
  1. On my review of the materials, nether (sic) the Appellant nor the Respondent has indicated that the LGIP is deficient in terms of the existing or planned trunk transport networks servicing the Subject Development, despite the Subject Land being located outside the Respondent’s PIA.
  1. Further it appears no Traffic Impact Assessment or Integrated Traffic Assessment report accompanied the development application.  This indicates to me that the Appellant was and remains of the view that:
  1. (a)
    the Respondent has provided adequate trunk infrastructure to service the locality of which the subject land is a part; and
  1. (b)
    the trunk infrastructure provided or planned is adequate to facilitate the Subject Development.
  1. This is of importance in my view as the Respondent may only impose a condition for trunk infrastructure under section 128 of the Planning Act 2016 on the basis that the trunk infrastructure has not been provided or has been provided but is not adequate as set out in sections 127 and 128(2) of the Planning Act 2016.

F. Does the area of land to be provided by the Appellant constitute trunk infrastructure or non-trunk infrastructure?

  1. Whilst it is a matter for the Court to determine, from a traffic engineering and transport planning perspective, I consider the Dedicated Land to meet the requirements of section 145(a) of the Planning Act 2016, noting the condition states:
  1. (a)
    the infrastructure to be provided; and
  1. (b)
    when the infrastructure must be provided.
  1. I am also of the opinion that the Dedicated Land is necessary to protect the safety and efficiency of the transport infrastructure network of which the unconstructed portion of Clark Road is a component.  I conclude this for the following reasons:
  1. (a)
    The Subject Development is contained within the Respondent’s Emerging Community Zone (Transition Precinct).  It is relevant to consider the purpose of the Emerging Community Zone as this was a requirement for the Respondent when determining whether the development application the subject of this appeal was consistent with the assessment benchmarks of the Reconfiguring a lot code, Emerging community zone (Transition Precinct).  The purpose of the code is to:
  1. (i)
    identify land that is suitable for urban purposes and conserves land that may be suitable for urban development in future;
  1. (ii)
    manage the timely conversion of non-urban land to urban purposes;
  1. (iii)
    prevent or discourage development that is likely to compromise appropriate longer term land use;
  1. (b)
    The Respondent’s planning scheme contains a Strategic Framework Map entitled Regional Infrastructure – Map 3.11.1, which identifies Clark Road (including the unconstructed part of Clark Road) as forming part of a “Road Investigation Corridor – indicative only”;
  1. (c)
    The Respondent’s Planning Scheme classifies the unconstructed section of Clark Road as “Proposed Council Sub-Arteria” (sic) under the Respondent’s Road Hierarchy Overlay Mapping.  There are several notes on the map including:

“This overlay map assists with interpreting tables of assessment and applying development requirements throughout the planning scheme.”

“Inclusion in this map does not necessarily mean there are associated requirements.”

  1. I take the above to simply require that any development on the Subject Land is to not prejudice a possible future sub-arterial road being constructed in the future.  I note that any provision of such a road is subject to further investigation, is not required to service anticipated development within the life of the LGIP and is not planned to be constructed within the life of the Respondent’s LGIP.
  1. Whilst it is possible that the localised western extension of Clark Road could have been conditioned to service the Subject Development and adjacent land parcels, the adjacent recent subdivision immediately to the west has instead extended Lakeview Road to facilitate a northern connection to Oakey Flat Road and a southern connection to Oakey Flat Road via Burbury Road.  Further adequate pathway links have been provided along Lakeview Road to Oakey Flat Road.
  1. The works undertaken as part of the other nearby developments have therefore benefited the Subject Development such that any construction of Clark Road is not required.  The Dedicated Land in turn may benefit future development beyond the planning horizon applied in the Respondent’s LGIP.”

(emphasis added)

  1. [50]
    When the evidence of Mr Holland relied on by Traspunt is viewed in the context in which it originally appeared, it is not open for Traspunt to argue that Mr Holland’s evidence supports imposition of the condition under s 128 of the Planning Act 2016.  Similarly, it is not open for Traspunt to argue that the evidence of Mr Douglas supports Traspunt’s case.  Leaving aside whether the LGIP identified adequate trunk infrastructure, the evidence of the traffic engineers is incapable of supporting a finding that the dedication required by condition 6 was necessary to service the subject premises.
  2. [51]
    In addition to the evidence extracted in paragraphs [43] and [44] above, Traspunt submits that there was other evidence before the Court that rendered Traspunt’s contention (that the dedication was development infrastructure needed in the future to service the premises) fairly arguable.  The other evidence it relies on is:
    1. (a)
      the unchallenged evidence that the Clark Road Extension was designated under the Council’s Planning Scheme as:
      1. a “proposed Council sub-arterial” in the “Overlay Map – Road Hierarchy”;
      2. a “Future District Collector” road in the mapping to the Emerging Community Zone Code and the Reconfiguring of a Lot Code,

with such standard of roads being categorised as trunk infrastructure under the LGIP;

  1. (b)
    the unchallenged evidence that the Council, in its pre-lodgement meeting for the subject development, stated as its position that:

“Current concept planning (Clark Road Concept interim, Clark Road Concept ultimate) indicates that provision of road reserve widening is required on the Clark Road frontage to facilitate development of the Clark Road extension and provision of future connectivity for development of the Morayfield South Area”;

  1. (c)
    consistent with the evidence referred to in sub-paragraphs [51](a) and [51](b) above, the Council had previously required developments adjoining the subject premises to dedicate land for the Clark Road Extension by way of a condition under the former Sustainable Planning Act 2009 equivalent to what is now s 128(2) of the Planning Act 2016, including by, as recently as 14 September 2017, imposing a condition on Traspunt’s subdivision of the adjoining lot, and describing such condition as:

Provision of Trunk Infrastructure – Land Dedication for Trunk Roads”;

  1. (d)
    other correspondence from the Council confirming that the Clark Road Extension was proposed trunk infrastructure;
  2. (e)
    the Council contending in its pleadings that the dedication was required to connect “the premises to external infrastructure networks” and that it is also necessary to protect or maintain “the safety or efficiency of the infrastructure network of which the [dedication] is a component”; and
  3. (f)
    the Council’s continued insistence that the land be dedicated for the Clark Road Extension, as evidenced by the imposition of condition 6 and resistance to this appeal.
  1. [52]
    Traspunt acknowledges that I did not accept this evidence and I did not accept that it meant that there was inadequate trunk infrastructure under s 128(2) of the Planning Act 2016.  However, Traspunt submits that this evidence was at least sufficient for it to be fairly arguable that the Council required the dedication, and that it was development infrastructure needed in the future to service the premises such that s 128(2) was engaged.
  2. [53]
    I do not accept Traspunt’s submission.  As I found at paragraph [34] of my reasons for judgment, even if I were to accept the evidence referred to by Traspunt as a true reflection of the Council’s views about their future intentions for Clark Road, they do not provide an arguable case that s 128(2) of the Planning Act 2016 is engaged.  As I noted in paragraph [31] of my reasons for judgment, s 128(2) of the Planning Act 2016 does not permit the Council to impose a condition to secure the dedication of any possible future trunk infrastructure it may desire to serve its broader network.  The development infrastructure must be necessary to service the subject premises.  The evidence relied on by Traspunt is not capable of establishing this.  Traspunt was unable to discharge its onus, even on the construction of s 128(2) of the Planning Act 2016 that it urged.
  3. [54]
    For the reasons provided above, even if Traspunt’s construction was accepted, Traspunt was bound to fail.  Regardless of the statutory construction of s 128(2) of the Planning Act 2016 that one adopted, Traspunt’s arguments about the evidence lacked merit.  Traspunt’s contention that s 128 of the Planning Act 2016 is a provision of some complexity, and that this was the first case to come before the Court in relation to it, cannot overcome the deficiency in its evidence.  I am satisfied that Traspunt’s case was frivolous and vexatious.  After the hearing before his Honour Judge Rackemann on 26 November 2019, when Traspunt effectively conceded that the condition could be lawfully imposed under s 145 of the Planning Act 2016, Traspunt’s case was conducted without reasonable prospects of success. 
  4. [55]
    Accordingly, I am satisfied that the Council has demonstrated that the power to award costs from 27 November 2019 is enlivened under s 60(1)(b) of the Planning and Environment Court Act 2016.  Although it does not follow that a costs order will be made, Traspunt does not advance any reason why the discretion should not be exercised to make an order as to costs.  However, it does contend that it is not appropriate for the costs to be assessed on an indemnity basis.

Should costs be awarded on an indemnity basis?

  1. [56]
    Ordinarily, costs will be awarded on the standard basis.  However, indemnity costs may be ordered where the particular facts and circumstances of the case in question warrant the making of an order departing from the usual course.[26]  There should be some unusual feature in the case justifying departure from the ordinary practice.  
  2. [57]
    The Council submits that its costs from 27 November 2019 should be assessed on the indemnity basis.  It relies on two grounds to justify such an order. 
  1. [58]
    First, the Council says the shortcomings of Traspunt’s case under s 128 of the Planning Act 2016 were raised on multiple occasions.  The Council submits that Traspunt failed to properly consider the shortcomings of its case on each of these occasions and that, had it done so, it would have withdrawn its appeal.  The Council says, in those circumstances, Traspunt’s conduct in prosecuting the appeal justifies an order that the costs be assessed on the indemnity basis.
  2. [59]
    The second ground advanced by the Council is that Traspunt imprudently refused to accept an offer in an email sent at 2.01 pm on 23 June 2020.  The imprudent refusal of an offer to compromise is one of the accepted circumstances in which a Court may consider awarding indemnity costs.[27]

Has Traspunt continually failed to properly consider the shortcomings of its case?

  1. [60]
    The Council points to multiple occasions when it says the shortcomings of Traspunt’s case were raised.  The first occasions relied on by the Council are those identified in paragraph [38] above. 
  2. [61]
    Next, against the background of the uncontested evidence of the traffic engineers and the matters referred to in paragraph [38] above, during his opening address on 22 June 2020, Queen’s Counsel for the Council, Mr Gore QC, observed that there was no basis on which Traspunt could contend that s 128 of the Planning Act 2016 was engaged.[28]  Mr Gore QC identified that the Council’s case in that regard was based on the factual common ground between Mr Douglas and Mr Holland. 
  3. [62]
    In addition, on the morning of 23 June 2020, at the resumed hearing of the appeal, Traspunt (through its Queen’s Counsel) conceded that the only basis on which it contended the appeal should be upheld was its case under s 128 of the Planning Act 2016.  That concession was made in light of the matters referred to in paragraphs [18] to [23] above.  At that point, I adjourned to allow Traspunt an opportunity to seek instructions about whether it wished to proceed, particularly in light of Mr Gore QC’s opening, which I summarised as the Respondent indicating it had a “slam dunk” case on both its evidence and on the evidence for Traspunt.[29]  Despite this opportunity to consider its position, Traspunt indicated that it would continue to prosecute the appeal.  The matter was adjourned with written submissions to be provided by 11 am on 24 June 2020 and oral addresses to commence at 11 am on 25 June 2020.
  4. [63]
    The Council also says the shortcomings were raised by an email sent at 2.01 pm on 23 June 2020.  That correspondence states:

Without prejudice save as to costs

Dear Daniel,

We refer to the Court proceedings this morning.

In particular, we refer to the indication from your client’s Senior Counsel to the Court this morning that the only basis on which your client contends its appeal should be upheld is Issue 1 from the Agreed List of Issues (ex 14).

That provides as follows:

1. Whether the dedication required by condition 6 of the Negotiated Decision Notice of 6 July 2018 satisfies the requirements of s 128(2) and (3) the Planning Act 2016 (PA) for the imposition of a “necessary infrastructure condition” under s 128, namely:

  1. (a)
    the LGIP does not identify adequate trunk infrastructure to service the subject premises;
  2. (b)
    the development infrastructure services development consistent with the assumptions in the LGIP about type, scale, location or timing of development; and
  3. (c)
    the development infrastructure is necessary to service the premises.

As indicated in paragraph 11(b) the Respondent’s Statement of Facts, Matters and Contentions dated and provided to you on 24 September 2019 (ex 13), the LGIP does identify adequate trunk infrastructure to service the subject premises.  This is the agreed evidence of both traffic engineers retained in this case.  This is for the reasons set out in the evidence of the traffic engineer retained by the Council in this case: see Affidavit of Andrew James Douglas filed on 2 March 2020 (ex 5), paragraphs 26 to 30.  The traffic engineer retained by your client, Mr Holland, agrees with this: Affidavit of Stuart Andrew Holland filed on 31 March 2020 (ex 4), paragraph 4(b).  The matters which the traffic engineers rely on (referred to in paragraphs 26 to 30 of Mr Douglas’ affidavit) on was evident (and in fact obvious) from the time the Appeal was commenced.  Senior Counsel for the Council squarely raised this in his opening yesterday and her Honour Judge Kefford brought it to the attention of your client’s Senior Counsel again this morning. 

Because of the above, and on the uncontested evidence of even your own traffic engineer, Issue 1(a) must be determined in the negative.  That is, your client has no basis to assert that the LGIP does not identify adequate infrastructure to service the subject premises.  As Issue 1(a) is one of three requirements which must be established to succeed on Issue 1, your client is (and always was) doomed to fail on that Issue and therefore its appeal must fail.

In relation to issues 1 and 2, it is apparent from the matters ventilated in Court this morning, your client could not sustain those issues from the date of his Honour Judge Rackemann’s order of 26 November 2019.  Accordingly your client had no reasonable prospect of success on those matters, at least from that date.

Despite the above, the Council is prepared to offer to settle this appeal on the following basis:-

  1. your client withdraw its appeal; and
  1. your client pay the Council’s costs of the Appeal on the standard basis, for the period 27 November 2019 to 22 June 2020 (i.e. it excludes the period on and prior to 26 November 2019 and it also excludes the costs of today).

Given her Honour directed that written submissions in this matter be exchanged at 11am tomorrow (Wednesday 24 June 2020) and oral submissions are set down for 11am on Thursday 25 June 2020, this offer:-

  1. is open for acceptance until 10am tomorrow (Wednesday 24 June 2020) (the Nominated Time);
  1. may only be accepted by return email (i.e. to [email protected]) within the Nominated Time;
  1. will, if not accepted by the Nominated Time, automatically lapse;
  1. is made on a without prejudice basis and based on the principles set out in Calderbank v Calderbank [1975] 2 All ER 333; and
  1. span style="">if accepted, will be formalised by your client seeking, or consenting to, appropriate orders reflecting the above as soon as reasonably practicable.

In the event the offer is rejected or lapses, and proves more favourable than the outcome before the Court, Council intends to apply for indemnity costs.”

  1. [64]
    The offer expired without acceptance.  Written submissions were exchanged approximately an hour later.
  2. [65]
    The Council submits that Traspunt failed to properly consider the shortcomings of its case on each of the occasions referred to above and that, had it done so, it would have withdrawn its appeal.  Traspunt resists this submission on the basis that its case was fairly arguable and that it was not unreasonable for it to seek to argue its interpretation of the law and evidence in relation to s 128(2) of the Planning Act 2016.  For the reasons already provided, I reject Traspunt’s submission.  The Council has established this ground.

Did Traspunt imprudently reject an offer of compromise?

  1. [66]
    The Council advances four reasons it says Traspunt’s refusal of its offer to compromise, as set out in paragraph [63] above, was imprudent. 
  2. [67]
    First, the offer outlined the matters that the Council says demonstrate the hopelessness of Traspunt’s case and the reasons why that hopelessness extended back to 27 November 2019.  It says these matters formed the basis of the reasons for judgment.  Traspunt resists this submission for the reasons identified in paragraph [65] above.  For the reasons already provided, I reject Traspunt’s submission. 
  3. [68]
    The second reason the Council says the rejection was imprudent is that the offer excluded the costs of 26 November 2019 and 23 and 24 June 2020, even though the Council says it could have pursued at least part of those costs.
  4. [69]
    Traspunt submits that the Calderbank offer made by the Council was not an offer of a significant benefit.  It says there was no true compromise and, as such, it was not in fact a Calderbank offer.  In this respect, Traspunt relies on the observations of Tamberlin J in Baygol Pty Ltd v Foamex Polystyrene Pty Ltd[30] that:

“The weight to be given to the existence of an offer to settle prior to the conclusion of the hearing depends on the reasonableness of the failure by the relevant part to accept the offer.  A distinction has been drawn in the authorities between a genuine offer of a realistic compromise, and a demand to capitulate in circumstances where the case has some prospect of success.  The question posed is whether the offer advanced by the party is designed merely to trigger costs sanctions, in which case it would not be treated as a genuine offer of compromise, or whether it is an offer of a significant benefit, in which case it could be so treated.  A refusal to acknowledge any substance in the opposing party’s case will usually not be sufficient of itself to warrant the making of a costs award on a solicitor client basis.  The existence of a Calderbank offer, and its significance and importance, depends on the terms of the offer considered in the circumstances of each case and it is one factor to weigh and balance when exercising in a judicial manner the unfettered discretion conferred.  Some authorities refer to the concept of “delinquency” on the part of the unsuccessful party as a significant consideration.  In the present case, having regard to the submissions made and the evidence, I am not persuaded that it can be said that the unsuccessful party, namely, Baygol, could be said to have engaged in any “delinquency” in the sense that expression is used by Gaudron and Gummow JJ in Oslack v Richmond River Council (1998) 193 CLR 72 at [44].”

(emphasis added by Traspunt)

  1. [70]
    Traspunt also submits that the comments of Gray J in Mees v Roads Corporation[31] are equally applicable here, namely:

“… When they are examined in substance, these letters do not amount, in my view, to Calderbank offers.  They amount, rather, to assertions that the respondents were in a strong position to defeat the proceeding and that the applicant should capitulate.  If he were to do so at that time, the respondents were prepared to allow him to capitulate without enforcing any obligation to pay their costs.  But the letters reminded the applicant that if he were to proceed to judgment and to fail he might be obliged to pay costs.  There was nothing in the nature of an offer of anything that the applicant might have sought in the proceeding, below which he might have fallen, in order to invoke the Calderbank principles. …”

(emphasis added by Traspunt)

  1. [71]
    Traspunt says that the Council did not identify a basis for obtaining its costs from 26 November 2019, nor explain how an offer to forego costs not yet incurred involves a compromise.  It says that it is critical to bear in mind that the Council’s Calderbank offer was made in a jurisdiction where the usual order is that each party bear its own costs.  The starting point is therefore that a litigant in this Court has no entitlement to costs.  Viewed in that light, the Council’s offer on 23 June 2020 that Traspunt pay “the Council’s costs of the Appeal on the standard basis, for the period 27 November 2019 to 22 June 2020” was made at a time when there was no basis to seek an indemnity costs order.  As such, it says that the offer was no compromise at all.
  2. [72]
    I do not accept Traspunt’s submission that the offer was made at a time when there was no basis to seek an indemnity costs order.  The ability to obtain an indemnity costs order is not limited to circumstances of an imprudent refusal of an offer of compromise.  Indemnity costs may be ordered where the particular facts and circumstances of the case in question warrant the making of an order departing from the usual course.[32]  The Council identifies two grounds for such an order and I accept that the first ground is made out.  Further, this case can be distinguished from Baygol Pty Ltd v Foamex Polystyrene Pty Ltd[33] and Mees v Roads Corporation[34] as it is not simply a case where the Council was in a strong position.  Traspunt’s case was bound to fail.  Nevertheless, I accept that there is some force to the submissions made by Traspunt.  The offered compromise was only of marginal benefit. 
  3. [73]
    The third reason the Council says it was imprudent for Traspunt to reject its offer is that the failure to accept the offer lead to further unnecessary costs being incurred by the Council after 10 am on 24 June 2020.  Traspunt says that this submission ignores the late timing of the offer and whether it was open for a reasonable time.
  4. [74]
    In Jones v Bradley (No. 2),[35] the New South Wales Court of Appeal unanimously approved the following statement of principle in SMEC Testing Services Pty Ltd v Campbelltown City Council[36]:

“The making of an offer of compromise in the form of a Calderbank Letter … where the offeree does not accept the offer but ends up worse off than if the offer had been accepted, is a matter to which the court may have regard when deciding whether to otherwise order, but it does not automatically bring a different order as to costs.  All the circumstances must be considered, and while the policy informing the regard had to a Calderbank letter is promotion of settlement of disputes an offeree can reasonably fail to accept an offer without suffering in costs.  In the end the question is whether the offeree’s failure to accept the offer, in all of the circumstances, warrants departure from the ordinary rule as to costs, and that the offeree ends up worse off than if the offer had been accepted does not of itself warrant departure.”

(emphasis added by Traspunt)

  1. [75]
    The timing of an offer and the time for which it is open are significant factors in determining whether its refusal is unreasonable and whether the Court should exercise its discretion to award indemnity costs.  Dal Pont, in Law of Costs,[37] summarised the position in relation to late offers open for a short period in this way:

“… [A]n offer made on or slightly before the date of trial, open only for a matter of hours, or even over a weekend, is unlikely, other than most exceptionally, to trigger costs consequences.  Moreover, such an offer, given its tardiness and the short period for which it is open, can be construed as being opportunistic, made chiefly with the intention of securing a costs advantage rather than a genuine attempt at settlement.”

  1. [76]
    Here, the offer was made the day before closing submissions were due.  It was only open for 20 hours.  I do not accept Traspunt’s submission that it was made chiefly with the intention of securing a cost advantage and not as a genuine attempt at settlement.  However, given its timing, I do not consider it was imprudent for Traspunt to reject it in the circumstances. 
  2. [77]
    Fourthly, the Council says the rejection of its offer was imprudent as it reveals that, even at that late stage in the proceedings, Traspunt had failed to confront the shortcomings in its case, which shortcomings had been identified as early as 24 September 2019.  Traspunt rejects this reason on the basis that its case was fairly arguable.  For reasons already provided, I reject Traspunt’s submissions on that issue.
  3. [78]
    Although the Council has established some of the reasons it says the rejection of its offer was imprudent, given the timing of the offer and its marginal benefit, I do not consider it was imprudent for Traspunt to reject the offer in all of the circumstances.

Are the Council’s grounds sufficient to justify an order for indemnity costs?

  1. [79]
    The Council has established one of the grounds it relies on to justify an order for indemnity costs.  However, it does not necessarily follow that an award is appropriate. 
  2. [80]
    Here, it is apparent from the agreed list of disputed issues presented by the parties on 22 June 2020 and the statements made by Counsel for both parties at the hearing on 23 June 2020 that neither party had turned its mind to the consequence of Traspunt’s submissions before His Honour Judge Rackemann and the order made on 26 November 2019 until the matter was raised by the Court on the morning of 23 June 2020.  This is also reflected in the lateness of the Council’s offer of compromise.  In those circumstances, I do not accept that the grounds advanced by the Council are sufficient to justify an order for indemnity costs prior to 23 June 2020. 
  3. [81]
    However, I am satisfied that the Council’s grounds justify an order for indemnity costs from 11.40 am on 23 June 2020.  After that time, Traspunt elected to continue despite having been given an adjournment by me for the express purpose of considering the evidence, its position, and the potential cost ramifications of continuing to prosecute the proceeding.

Conclusion

  1. [82]
    For the reasons provided above, I will hear from the parties as to the form of orders, which are to reflect the following:
  1. The appellant pay the respondent’s costs of the proceeding incurred on and from 27 November 2019, inclusive of the costs of this application.
  2. The respondent’s costs incurred between 27 November 2019 and 11.40 am on 23 June 2020 be assessed on the standard basis.  The respondent’s costs thereafter be assessed on an indemnity basis.
  1. [83]
    The matter will be reviewed at 9 am on 5 March 2021 for this purpose.

Footnotes

[1]See Traspunt No. 7 Pty Ltd v Moreton Bay Regional Council [2020] QPEC 50 for the Reasons for Judgment.

[2]For the purposes of s 60(1) of the Planning and Environment Court Act 2016, a “P&E Court proceeding is a proceeding before the P&E Court, including a part of a proceeding and an application in a proceeding.  See Schedule 1 of the Planning and Environment Court Act 2016.  This appeal is a P&E Court proceeding.

[3]Reasons for Judgment, p 5 [11].

[4]Reasons for Judgment, p 5 [12].

[5]This was identified by referring to paragraph 9(m) of the Amended Notice of Appeal.

[6]At paragraph 10 (footnotes omitted).

[7]Acts Interpretation Act 1954 (Qld), s 14(3).

[8]Previous Queensland statutes that had used the phrase “frivolous or vexatious” did not contain the example that the Planning and Environment Court Act 2016 contains.  The leading case on that expression was Mudie v Gainriver Pty Ltd (No. 2) [2002] QCA 546; [2003] 2 Qd R 271.  The discussion of that term in the joint judgment of McMurdo P and Atkinson J at [35]-[37] is not necessarily directly applicable, particularly where the application for costs is made by reference to the example provided. 

[9][2019] QPEC 9; [2019] QPELR 662.

[10]Sincere International Group Pty Ltd v Council of the City of Gold Coast (No.2) [2019] QPEC 9; [2019] QPELR 662, 669 [30].

[11]Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284; [2005] NSWSC 3 (Degiorgio v Dunn (No 2)) at [28].

[12]Compare Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683; [2003] QCA 157 at [24] per Davies JA.

[13]Degiorgio v Dunn (No 2) at [28].

[14]Ferreyra v Brisbane City Council (No 2) [2016] QPELR 374; [2016] QPEC 13 at [11].

[15]Ebis Enterprises Pty Ltd v Sunshine Coast Regional Council [2011] QCA 15, [11].

[16]Burdekin Shire Council v Pioneer Sugar Mills Pty Ltd & Anor [2004] QPEC 28; [2005] QPELR 13, 16 [14]; The Chief Executive administering the Environmental Protection Act 1994 v Baal Gammon Copper Pty Ltd & Anor (No. 2) [2020] QPEC 49, [22].

[17]Mudie v Gainriver Pty Ltd (No. 2) [2002] QCA 546; (2003) 2 Qd R 271, 284 [37]; The Chief Executive administering the Environmental Protection Act 1994 v Baal Gammon Copper Pty Ltd & Anor (No. 2) [2020] QPEC 49, [22].

[18]Mudie v Gainriver Pty Ltd (No. 2) [2002] QCA 546; (2003) 2 Qd R 271, 284 [36] and [40].

[19]This is because of the concession Traspunt made on 26 November 2019.  See paragraphs [18] to [23] above.

[20]This was identified as paragraphs (a) and (c) of the issues in dispute.  See paragraphs [11] and [12] above.

[21]See paragraphs [16] to [21] of the Reasons for Judgment.

[22]See paragraphs [22] to [44] of the Reasons for Judgment.

[23]See paragraphs [45] to [47] of the Reasons for Judgment.

[24]This was provided to the Appellant on 24 September 2019.

[25]Filed and served on 18 October 2019.

[26]Colgate-Palmolive Company & Anor v Cussons Pty Limited [1993] FCA 801; (1993) 46 FCR 225, 233-4.

[27]Colgate-Palmolive Company & Anor v Cussons Pty Limited [1993] FCA 801; (1993) 46 FCR 225, 233.

[28]See Transcript of proceeding 22 June 2020, pp 1-42 – 1-44.

[29]See Transcript of proceeding 22 June 2020, pp 2-2 – 2-6.

[30][2005] FCA 1089, [12].

[31][2003] FCA 410, [17].

[32]Colgate-Palmolive Company & Anor v Cussons Pty Limited [1993] FCA 801; (1993) 46 FCR 225, 233-4.

[33][2005] FCA 1089, [12].

[34][2003] FCA 410, [17].

[35][2003] NSWCA 258, [8].

[36][2000] NSWCA 323, [37] per Giles JA.

[37]Dal Pont, Law of Costs, (Lexis Nexis, 3rd ed, 2013), 416.

Close

Editorial Notes

  • Published Case Name:

    Traspunt No. 7 Pty Ltd v Moreton Bay Regional Council

  • Shortened Case Name:

    Traspunt No. 7 Pty Ltd v Moreton Bay Regional Council

  • MNC:

    [2021] QPEC 9

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    26 Feb 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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