Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors

Cherwell Creek Coal Pty Ltd (CC) filed a claim against BHP Queensland Coal Investments Pty Ltd and others (BMA) for compensation under section 722G of the Mineral Resources Act 1989, following the 2008 amendment which altered the applicants' opportunities to renew or obtain certain tenures. BMA sought an order that CC provide security for costs, which was refused by the Land Court and subsequently upheld on appeal. The current dispute revolves around the costs incurred from two separate applications filed by both parties. CC's application, filed on 5 March 2010, sought to have parts of BMA's defence struck out, while BMA's application, filed on 28 September 2009, sought the separate determination of certain questions raised in their defence. Both applications were refused. The court considered the submissions from both parties regarding the costs of these applications, with CC arguing that costs should follow the event in both cases and BMA contending that CC should bear the costs of their unsuccessful application. The Land Court's power to order costs is provided by section 34 of the Land Court Act 2000, which allows the court to order costs as it considers appropriate. The court examined relevant case law and found that while the rule that costs follow the event is deeply embedded in the law, it is not automatically applied and each case should be considered on its merits. The court decided that the costs of BMA's unsuccessful application should be borne by BMA, with additional costs thrown away by CC for having to make submissions on the matter. The costs of CC's unsuccessful application to strike out parts of BMA's defence were ordered to be borne by CC.

The final orders of the court were as follows:

1. The Respondents pay, on the standard basis, the Applicant's costs of and incidental to the Respondents' General Application dated and filed 28 September 2009 for separate determination of a question. The Respondents also pay, on the same basis, the Applicant's additional costs thrown away in relation to submissions made on that matter.
2. The Applicant pay, on the standard basis, the Respondents' costs of and incidental to the Applicant's General Application dated 4 March 2010 and filed on 5 March 2010 seeking to have parts of the Respondents' defence struck out.