Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd (No 22)

Case [2019] QLC 47

LAND COURT OF QUEENSLAND

CITATION: Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 22) [2019] QLC 47
PARTIES: Cherwell Creek Coal Pty Ltd
(ACN 063 763 002)
(applicant)
v
BHP Queensland Coal Investments Pty Ltd
(ACN 098 876 825)
QCT Resources Pty Ltd
(ACN 010 808 705)
BHP Coal Pty Ltd
(ACN 010 595 721)
QCT Mining Pty Ltd
(ACN 010 487 840)
Mitsubishi Development Pty Ltd
(ACN 009 779 873)
QCT Investment Pty Ltd
(ACN 010 487 831)
Umal Consolidated Pty Ltd
(ACN 000 767 386)
(respondents)
FILE NO: MRA1332-08
DIVISION: General division
PROCEEDING: Application for costs
DELIVERED ON: 12 December 2019
DELIVERED AT: Brisbane
HEARD ON: Submissions closed 22 November 2019
HEARD AT: Heard on the papers
PRESIDENT: FY Kingham
ORDERS: 1.     The respondent must pay the applicants’ costs of the application filed on 11 October 2019, as assessed against the Supreme Court scale, if not agreed.
CATCHWORDS:

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the parties disagree as to costs of an application for leave, where the Court found that leave was not required – where the Court found that costs should follow the event  

Land Court Act 2000 s 34
Uniform Civil Procedure Rules 1999 r 378

Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 8) [2017] QLC 7, cited
Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 9) [2017] QLC 12, followed
Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 21) [2019] QLC 41, cited
APPEARANCES:  Not applicable

  1. The parties do not agree about costs orders on the application by the respondents (BMA) for leave, if required, to amend their defence. On 8 November 2019, I published reasons for finding BMA did not require leave, but that, if leave were required, I would grant it.[1]

  1. The Court has discretion to order costs in a proceeding, as it considers appropriate. If the Court makes no other order, each party must bear their own costs.[2]

    [2]Land Court Act 2000 s 34(2).

  1. The Court’s discretion to order costs is unfettered “except to the extent it is confined by the subject matter and the scope and purpose of the legislation.”[3] The Court has recognised and applied the general rule that costs follow the event in cases involving commercial disputes such as this one.[4]

  1. BMA seeks an order that Cherwell Creek Coal Pty Ltd pay its costs, because it was entirely successful in its application.

  1. Cherwell Creek seeks an order that the costs of the application be costs in the proceeding, because BMA sought the indulgence of the Court and Cherwell Creek’s resistance to the application was reasonable.

  1. The effect of making that order would be that the successful party in the proceedings would have their costs of this application. I am not satisfied that is a fair and just order.

  1. BMA succeeded on its primary case that leave was not required. That outcome is consistent with a finding I made in an earlier interlocutory decision,[5] that the directions that then applied to this case had not ousted the operation of r 378 of the Uniform Civil Procedure Rules 1999. In my recent decision, I found the circumstances were not materially different from the earlier application.[6]

  1. As the directions stood at the time of this application,[7] it was open to BMA to file and serve the amended pleading without leave. It should have its costs of the application.

    [7]        On 15 November 2019, after consultation with the parties, I made orders that will prevent the parties filing any further amended pleadings, except to the extent provided in those directions, or with the leave of the Court.

FY KINGHAM
PRESIDENT OF THE LAND COURT


Details
AGLC
Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd (No 22) [2019] QLC 47
Case
[2019] QLC 47
Decision Date

CaseChat Overview and Summary

Cherwell Creek Coal Pty Ltd sought an order for the respondent, BHP Queensland Coal Investments Pty Ltd, to pay the costs of an application for leave to appeal, arguing that the Court of Appeal had found the application for leave was not necessary. The Supreme Court of Queensland, in the Division of Appeals, was tasked with determining whether the respondent should be liable for the costs of the application. The primary legal issue before the court was whether the respondent should be held responsible for the costs of the application given that the Court of Appeal found leave to appeal was not required. The court considered the principle that costs generally follow the event, which means that the unsuccessful party typically bears the costs of the proceeding.

The court acknowledged that in this instance, the Court of Appeal had determined that leave to appeal was not required, effectively rendering the application moot. Despite this, the court found that the principle of costs following the event should apply, and thus, the respondent should bear the costs of the application. The court reasoned that the principle of costs following the event is a fundamental aspect of the legal system, ensuring that unsuccessful parties contribute to the costs of proceedings, even where the application was ultimately deemed unnecessary by the Court of Appeal. This decision underscores the importance of adhering to procedural rules and the consequences of initiating proceedings without sufficient basis.

The court ordered that the respondent must pay the applicants’ costs of the application, as assessed against the Supreme Court scale, if not agreed. This ruling reinforces the principle that parties must carefully consider the merits of their applications before proceeding, to avoid incurring costs that could have been avoided. The decision serves as a reminder of the importance of procedural fairness and the need for parties to act judiciously in their litigation strategies.

Orders

Orders of the court

1. The respondent must pay the applicants’ costs of the application filed on 11 October 2019, as assessed against the Supreme Court scale, if not agreed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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