Hampton Irrigators Pty Ltd v Toowoomba Regional Council

Hampton Irrigators Pty Ltd sought relief from the Queensland Land Court in the form of three declarations against Toowoomba Regional Council. The applicants had entered into an agreement with the respondents for the supply of water from a bore at Kleinton. In 2019, the respondents raised concerns about the levels of radionuclides in the water. They purported to terminate the agreement on the basis that the water was not fit for potable use due to the presence of excessive radionuclides and that the agreement was thereby frustrated. The applicants retained an expert to provide a report on the radiological water quality, which concluded that the water was suitable for human consumption. The parties continued to test the water quality. Hampton Irrigators sought three declarations from the court: (1) that the water capable of being extracted from the applicant’s bore is suitable for human consumption; (2) that the termination of the agreement by the respondent is void; and (3) that the agreement remains binding on the parties. The respondents agreed that the second and third declaration should be made but disputed the first.

The court considered the evidence before it and found that there was compelling evidence that the water was potable in regard to its radiological water quality. The court considered the relevant case law and concluded that the first declaration should be made in the terms sought by the applicant. The court also considered the costs of the proceedings. The applicants sought their costs on an indemnity basis. The respondents accepted that they must pay the applicants’ costs but submitted that the costs should be assessed on the standard basis. The court considered the relevant case law and concluded that the respondents should be ordered to pay the applicants’ costs on the indemnity basis because they had allowed the proceedings to continue when it should have known it had no chance of success.