ERO Georgetown Gold Operations Pty Ltd v Henry (No 2)

The case ERO Georgetown Gold Operations Pty Ltd v Henry (No 2) involved the respondent, Henry, who successfully sought an amendment to the compensation payable by the appellant, ERO Georgetown Gold Operations Pty Ltd, under the Mineral Resources Act 1989 (Qld). The dispute centred on the costs incurred during the litigation process. Henry had made several settlement offers before and after the Land Court's determination, including a Calderbank offer, which was rejected by the appellant. The Land Appeal Court had to decide the costs associated with the proceedings, particularly whether the respondent was entitled to indemnity costs and if the appellant's rejection of the Calderbank offer was unreasonable.

The legal issues before the court involved interpreting Section 34 of the Land Court Act 2000, which grants the court discretion in awarding costs. The court had to determine whether the statutory provision mandated that each party bear its own costs in the absence of a specific order or whether it allowed for a more flexible approach. Additionally, the court needed to assess the appellant's conduct in rejecting the Calderbank offer and whether this rejection was reasonable under the circumstances. The court also had to consider the established legal principles, including the principle that a party's success can be a significant factor in determining an application for costs.

In its reasoning, the court held that Section 34 of the Land Court Act does not automatically impose a rule that each party should bear its own costs but rather provides the court with discretion to make an appropriate costs order. The court noted that a party's success can often be a significant, though not decisive, factor in determining an application for costs. Regarding the rejection of the Calderbank offer, the court found that the appellant's conduct in rejecting the offer was unreasonable, particularly as the respondent had foreshadowed indemnity costs if the offer was refused. Consequently, the court concluded that the respondent was entitled to indemnity costs from the date of making the Calderbank offer.

The court ordered that the appellant pay the respondent's costs of and incidental to the appeal in the Land Appeal Court. The costs were to be assessed on the standard basis until 15 September 2015, and thereafter on the indemnity basis. This order reflects the court's decision that the appellant's unreasonable conduct warranted indemnity costs for the respondent.