Australian Capital Holdings P/L v. Mackay City Council

[2008] QCA 188

SUPREME COURT OF QUEENSLAND

CITATION:

Australian Capital Holdings P/L v Mackay City Council & Ors [2008] QCA 188

PARTIES:

AUSTRALIAN CAPITAL HOLDINGS PTY LTD
ACN 087 497 863
(appellant/first respondent)
MACKAY CITY COUNCIL
(respondent/second respondent)
THE CHIEF EXECUTIVE UNDER THE TRANSPORT

INFRASTRUCTURE ACT 1994
(first co-respondent/third respondent)
v
EULCOM PTY LTD
ACN 102 773 106
(second co-respondent/first applicant)
W A STOCKWELL PTY LTD
ACN 010 095 360
(third co-respondent/second applicant)
PORTERCO PTY LTD
ACN 009 801 736
(fourth co-respondent/third applicant)
PETER SOLOGINKIN AND COLLEEN SOLOGINKIN
(fifth co-respondents/fourth applicants)
PAUL SOLOGINKIN AND JUDY SOLOGINKIN
(fifth co-respondents/fifth applicants)

FILE NO/S:

Appeal No 1822 of 2008
P & E Appeal No 3575 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Integrated Planning Act – Further Order

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

18 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the Papers

JUDGES:

Holmes and Fraser JJA and Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The order made on 27 June 2008 should be vacated and instead it should be ordered that the first respondent pay the appellants' costs of and incidental to complying with the orders made by the Planning and Environment Court on 4 February 2008.

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – CORRECTION UNDER SLIP RULE – where the first and second respondents were ordered to pay the appellants’ costs of and incidental to complying with orders made by the Planning and Environment Court on 4 February 2008 – where the second respondent contended that the order should have been made against the first respondent only – where it was evident that the order of the Court did not accurately reflect the intention of the majority judgments – where the appellant and the first respondent did not oppose the correction sought by the second respondent – whether the orders made should be corrected under the slip rule

SOLICITORS:

Hopgood Ganim for the first to fifth applicants
MacDonnells Law for the first respondent
SB Wright & Wright and Condie for the second respondent
Crown Law for the third respondent

1. HOLMES JA: I agree that the orders proposed by Fraser JA should be made as properly reflecting the intention of the majority.

1. FRASER JA: On 27 June 2008 this Court ordered the respondents to pay the appellants' costs of and incidental to complying with orders made by the Planning and Environment Court on 4 February 2008.  Pursuant to leave, the second respondent has made submissions seeking an amendment of that order under the slip rule, so that only the first respondent is ordered to pay the appellants' costs of and incidental to complying with those orders of 4 February 2008.

1. The second respondent submits that it is apparent from the reasons delivered on

   
   

   27 June 2008 that the Court understood that the costs application before it was an application by the appellants that only the first respondent pay the relevant costs and that the decision of the majority of this Court was based on certain acts and omissions by the first respondent only in the Planning and Environment Court.

1. It is evident, as the second respondent submits, that the order of the Court did not accurately reflect the intention reflected in the majority judgments.  The appellants and the first respondent do not oppose the correction sought by the second respondent. 

1. Accordingly, the order made on 27 June 2008 should be vacated and instead it should be ordered that the first respondent pay the appellants' costs of and incidental to complying with the orders made by the Planning and Environment Court on

   
   

   4 February 2008.

1. CHESTERMAN J: I agree with the order proposed by Fraser JA and with his Honour’s reasons for that order.