Berry v Gold Coast City Council (No. 2)

[2011] QLC 79

LAND COURT OF QUEENSLAND

CITATION:

Berry & Anor v Gold Coast City Council (No. 2) [2011] QLC 0079

PARTIES:

Colleen Patricia Berry and Francis John Sheehan (as Trustees)
(applicants)

v.

Gold Coast City Council
(respondent)

FILE NO:

AQL036-11

DIVISION:

General Division

PROCEEDING:

Application for costs

DELIVERED ON:

23 December 2011

DELIVERED AT:

Brisbane

HEARD AT:

Written Submissions

PRESIDENT:

CAC MacDonald

ORDERS:

1.    The respondent is ordered to pay the applicants’ costs of and incidental to the application for a partial joint hearing to be assessed on the standard basis.

2. Pursuant to s.34(3) of the Land Court Act 2000 this order may be made an order of the Supreme Court and enforced in the Supreme Court.

CATCHWORDS:

Costs of interlocutory application — principles to be applied — costs awarded to successful party — s.34 Land Court Act 2000

SOLICITORS:

Collas Moro Ross for the applicants
Gall Standfield Smith for the respondent

1. On 22 August 2011 I handed down a decision refusing an application by the Gold Coast City Council for a partial joint hearing of two claims for compensation for the compulsory acquisition of land under the Acquisition of Land Act 1967 (the AQLA).[1] One of the claims was brought by Colleen Patricia Berry and Francis John Sheehan (as Trustees) (the applicants) against the Gold Coast City Council (AQL036-11) (the respondent). The other claim was brought by Halycon Waters Community Pty Ltd against the Chief Executive, Gold Coast City Council (AQL359-09).

   [1]     Berry v Gold Coast city Council [2011] QLC 0053.

2. This decision deals with a subsequent application brought by Berry and Sheehan that the respondent should pay the applicants’ costs of and incidental to the application for a partial joint hearing, to be assessed on the standard basis.

3. The respondent has submitted that costs should be reserved pending a determination of costs in the substantive proceedings. Alternatively, the respondent submitted that if the Court is minded to make an order for costs, the order should be that a percentage of costs be awarded

4. Section 34 of the Land Court Act 2000 (the LCA) provides:

   “34 Costs

   (1)   Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate.

   (2)   If the court does not make an order under subsection (1), each party to the proceeding must bear the party’s own costs for the proceeding.

   (3)   An order made under subsection (1) may be made an order of the Supreme Court and enforced in the Supreme Court.

   (4)   For subsection (3), it is enough to file the order in the Supreme Court.

   (5)   The court may, if it considers it appropriate, order the costs to be decided by the appropriate assessing officer of the Supreme Court.

   (6)   If the court makes an order under subsection (5), the assessing officer may decide the appropriate scale to be used in assessing the costs.”

5. The effect of s.34(1) of the LCA is that the Land Court has a discretion as to whether to award costs. It is been held on many occasions that the discretion given to the Land Court by s.34 is complete and that the discretion is not to be fettered by any pre-conceived rules or principles other than that the discretion is to be exercised judicially.[2]

   [2]     Anson Holdings Pty Ltd v Wallace (2010) 31 QLCR 130 at [5].

6. Because s.34(1) invests the Land Court with an unfettered discretion as to the award of costs, the principle that costs “follow the event”, which has been incorporated into Rule 689 of the Uniform Civil Procedure Rules 1999 (the UCPR), is not applicable in this jurisdiction.[3] Nevertheless there are factors which have been recognised as relevant in guiding the Court in the exercise of the discretion given under s.34(1) of the LCA. Those factors include the outcome of the litigation and the overall purpose of the legislation.[4]

   [3]     PT Limited and Westfield Limited v Department of Natural Resource and Mines (2007) 28 QLCR 295 at [20].

   [4]     PT Limited and Westfield Limited v Department of Natural Resource and Mines (2007) 28 QLCR 295 at [22].

7. In this matter, Berry and Sheehan have been completely successful in resisting the application for a partial joint hearing. Their counsel submitted, therefore, that costs should follow the event, not by way of punishment of the unsuccessful party but because costs are intended to be compensatory, that is to indemnify the successful party against the expense to which he or she was put by reason of the legal proceedings. The applicants say they had no choice but to expend costs resisting the application and therefore it is just and reasonable that they should be reimbursed for the costs incurred.

8. The respondent’s submission that the costs of the interlocutory application should be reserved pending the final determination of Berry and Sheehan compensation claim was based on the proposition that there is sufficient uncertainty associated with the issues in those proceedings to justify concern as to whether any, and if so what, order for costs should be made when the matter is finally determined. The respondent says that the principal difference between the parties in the substantive proceedings is the extent of the developable area on the applicants’ land prior to the resumption and the hydraulic considerations which are likely to determine that issue. In that context, the respondent says, it was not unreasonable for the respondent to have sought the joint hearing.

9. I do not accept the respondent’s submission that the costs of the application for a partial joint hearing should be reserved. The application raised a discrete issue, that is, whether the Court should exercise its discretion to order a joint hearing. Berry and Sheehan’s success in resisting the application will stand whatever the final outcome of the compensation claim. I am of the view, therefore, that the costs of the application should be treated separately from the costs of the substantive proceedings.

10. On the face of it the applicants are entitled to the costs of the interlocutory application as they were completely successful in resisting the application and there has been no suggestion that they acted unreasonably in relation to the application. However, the respondent submitted that, if costs were to be awarded, a percentage, in the region of 70%, of costs on a standard basis would be appropriate. The respondent said that the Court should take into account that some of the work associated with these proceedings, including perusal of the joint expert reports, had already occurred in the proceedings and therefore there would be some duplication of work.

11. I am not persuaded by this submission as there is insufficient detail to enable me to identify precisely what work it is that the respondent says may have been duplicated. In any event, the issue of whether particular costs are appropriately claimed is a matter that can be determined by a costs assessor, if the parties are unable to reach agreement on that issue. It does not provide a reason for my reducing the percentage of costs payable to the applicants.

12. My conclusion, therefore is that the applicants should be awarded their costs in respect of the application for a partial joint hearing.

ORDERS

1.The respondent is ordered to pay the applicants’ costs of and incidental to the application for a partial joint hearing to be assessed on the standard basis.

2.Pursuant to s.34(3) of the Land Court Act 2000 this order may be made an order of the Supreme Court and enforced in the Supreme Court.

CAC MacDONALD

PRESIDENT OF THE LAND COURT