AHC Ltd v Gold Coast City Council

[2010] QPEC 57

[2010] QPEC 57

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 1828 of 2009

A H C LIMITED	Applicant
and
GOLD COAST CITY COUNCIL	Respondent

BRISBANE

..DATE 23/07/2010

ORDER

CATCHWORDS

Premature to order appellant to pay respondent's costs where default had occurred in complying with court directions

HIS HONOUR:  The court makes the following orders:

(1) Paragraph 3 of the order of his Honour Judge Searles made on 12 May 2010 is vacated.

(2) On the applicant's request for further time, extend the date by which the applicant must file and serve any affidavit material or expert reports in reply to the respondent's material or reports to 16 September 2010.

(3) Adjourn today's review of the originating application to 17 September 2010.

(4) The application is listed for callover on 20 September 2010 to the October 2010 pool sittings; estimate of two days.

(5) Reserve determination of whether the applicant must pay the respondent's costs thrown away by the adjournment and of and incidental to its default of the order made 12 May 2010.

...

HIS HONOUR:  This is an application by the applicant calculated to force the council to accept a road constructed as part of a development.  If things had run smoothly, the council may have accepted that road as a facility for which it assumed future responsibility some considerable time ago.

It seems that when the issue arose, the council made serious complaints about the soundness of the road.  It is unclear to me on the basis of cursory inquiries at today's mention whether the council faces a contention that it was obliged to accept the road on any particular day regardless of its condition.

The applicant today seeks additional time to comply with Judge Searles’ order on the basis of difficulties it claims to have faced from belated intimations from the council that the problem with the road may not relate to the construction of it but rather to the quality of underlying fill.

Mr Knox for the council asserts that if that particular issue is relevant, the applicant has known about it for a long time.  The applicant, Mr Kelleher says, faces a particular difficulty from the intervening death of the gentleman who was primarily responsible for the fill.

The council seeks costs on the basis of the applicant's default which Mr Kelleher says is inappropriate in light of the council's material of May 2010 having been provided some three months late after an indulgence had been procured from the court.

In those circumstances, I am not prepared to order that the applicant pay the council's costs immediately.  I prefer to reserve them on the basis that the council will have two potential bases for seeking costs if the matter is argued in the future, one, the default and, two, the adjournment of today's review.

The council's request that the matter go in the September pool should not be accepted in light of the amount of time Mr Kelleher seeks for his client to comply with Judge Searles' order.

My adjustment of the draft submitted to provide for an October sittings may yet be frustrated.  There is contention between the parties as to whether or not it might be appropriate for experts to meet again at the court's direction.  Whether that is necessary or not can be determined on the adjourned review.

Order as per initialled draft.

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