Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd and Ors (No.7)

[2013] QLC 4

LAND COURT OF QUEENSLAND

CITATION:	Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No.7) [2013] QLC 4
PARTIES:	Cherwell Creek Coal Pty Ltd (applicant)
v.
BHP Queensland Coal Investments Pty Ltd QCT Resources Pty Ltd BHP Coal Pty Ltd QCT Mining Pty Ltd Mitsubishi Development Pty Ltd QCT Investment Pty Ltd Umal Consolidated Pty Ltd (respondents)
FILE NO:	MRA1332-08
DIVISION:	Land Court of Queensland
PROCEEDING:	Application for Costs
DELIVERED ON:	8 February 2013 [Ex tempore]
DELIVERED AT:	Brisbane
HEARD AT:	Brisbane
MEMBER:	Mr PA Smith
ORDER:	The Respondents pay 60% of the Applicant’s costs of and incidental to the Applicant’s application of 16 November 2012 to be agreed between the parties or, failing agreement, to be taxed.
CATCHWORDS:	COSTS - Costs of Application - matter of discretion - significant omission from application - partial award of costs made
APPEARANCES:	Ms Chapple of Counsel for the applicant Mr Stumer of Counsel for the respondents
SOLICITORS:	Mr Boys of Holding Redlich Lawyers for the applicant
Ms Munnelly of Allens for the respondents

[Following the finalisation of Orders in the matter of Cherwell Creek Coal Pty Ltd (CCC) v BHP Queensland Coal Investments Pty Ltd & Ors (BMA) (No. 6) [2013] QLC 1, each party sought different orders as to costs of the applications made by CCC. The following ex-tempore reasons were delivered]

1. It has been rightly pointed out by both Counsel that the issue of costs is one that falls to the discretion of the Court.  Both Counsel have also submitted that the provisions of s.380 of the Mineral Resources Act 1989 (MRA) refers to the actual cost associated with the activity and those, of course, are costs that at the end of the day will be incorporated into the ultimate determination for the overall proceeding rather than the legal costs of the application.

2. The issue now is whether or not there should be an award for costs with respect to the application.  I am troubled by a number of aspects of this application with respect to both parties.  The simple position may be to reserve the question of the costs until the end of the day, but I am minded that in the current complex circumstances of this litigation that it may be best to make a formal decision as to costs now.

3. On the basis of the application, the applicant has, in my view, been successful and has probably been successful to an extent greater than 50 per cent with respect to the application as a whole, but not to such a high extent as 75 per cent.

4. I am also aware from the authorities that discretion does exist to make a partial award of costs, although this is not meant to be a simple weighting exercise.

5. I do feel in the current case that a major failing in the applicant's case was the omission of any reference to CCC meeting the costs BMA would incur because of the drilling activities to be undertaken on their property, and that this must have helped inform BMA in its decision-making processes as to their stance they took in response to the application.

6. In those circumstances, I do find that CCC has been substantially successful in its application, but there should be some feature of costs which it falls from because of the deficiencies in its application, and accordingly, I award CCC 60 per cent of its costs, to be agreed between the parties, or failing agreement, to be taxed.

Order

1. The Respondents pay 60 per cent of the Applicant’s costs of and incidental to the Applicant’s application of 16 November 2012 to be agreed between the parties or, failing agreement, to be taxed.

PA SMITH

MEMBER OF THE LAND COURT