Henry v ERO Georgetown Gold Operations Pty Ltd - [2016] QLC 17

LAND COURT OF QUEENSLAND

CITATION: Henry v ERO Georgetown Gold Operations Pty Ltd [2016] QLC 17

PARTIES: Thomas Peter Henry
(applicant)

v

ERO Georgetown Gold Operations Pty Ltd
CAN 104 826 959
(respondent)

FILE NO: MRA036-14

DIVISION: General Division

PROCEEDING: Application for costs

DELIVERED ON: 10 March 2016

DELIVERED AT: Brisbane

HEARD ON: Heard on the papers
Submissions closed 17 July 2015

HEARD AT: Brisbane

MEMBER: PA Smith

ORDERS:
1. The respondent pay the applicant’s costs of and incidental to these proceedings to be agreed or failing such agreement to be assessed on the standard basis, subject to Order 2.

2. Each party bear their own costs of and incidental to an application filed by the applicant on 10 July 2014 that the hearing of this matter be adjourned.

CATCHWORDS:
COSTS – Costs provisions under sections 283B(3) and 281(7) Mineral Resources Act 1989 – similar legal principles with s 34 Land Court Act 2000 – application for compensation for a material change of circumstances for a mining lease – factors governing discretion regarding costs – degree of success a significant factor but not the default position

COSTS – Calderbank offers at common law – whether the rejection of Calderbank offers was unreasonable or imprudent – whether applicant entitled to indemnity costs

COSTS – applicant successful with substantive costs order – whether respondent is entitled to its costs of specific applications/actions of the applicant that were unsuccessful or withdrawn – consideration of the issues – applicant found to have acted reasonably – no basis for awarding costs against applicant on individual applications/actions

City of Brisbane Town Planning Act 1964
Land Court Act 2000
Mineral Resources Act 1989
State Development and Public Works Organisation and Other Legislation Amendment Act 2015

Anson Holdings Pty Ltd v Wallace and Anor (No 2) (2010) 31 QLCR130
BHP Billiton Mitsui Coal Pty Ltd v Isdale and Others (2015) QSC 107
BHP Queensland Coal Investments Pty Ltd v Cherwell Creek Coal Pty Ltd (No 2) (2009) QLAC 8

Calderbank v Calderbank (1976) 3 All ER 333

Dunn v Burtenshaw (2010) QLAC 5
ERO Georgetown Gold Operations Pty Ltd v Thomas Peter Henry (2015) QLAC 4
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435
Henry v ERO Georgetown Gold Operations Pty Ltd (2015) QLC 13
J & D Rigging Pty Ltd v Agripower Australia Limited & Ors (2014) QCA 23
Ostroco v Department of Transport and Main Roads (No 3) (2014) QLAC 7
PT Limited and Westfield Limited v Department of Natural Resources and Mines (2007) 28 QLCR 295 at (22)
Reeves v O’Riley (2013) QCA 285
Starr v Appleton (2009) QLC 102

Wallace v Anson Holdings Pty Ltd (2011) QLC 11

Wyatt v Albert Shire Council (1986) 1 Qd R 486
Xstrata Coal Queensland Pty Ltd v Friends of the Earth – Brisbane Co-Op Ltd (No 2) (2012) 33 QLCR 409

APPEARANCES: Not applicable

SOLICITORS: Emanate Legal for the applicant
Miller Harris for the respondent

Background

This is an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QLC 17
Decision Date: 10 March 2016

CaseChat Overview and Summary

The case of Henry v ERO Georgetown Gold Operations Pty Ltd involved a dispute regarding compensation for a material change of circumstances in relation to a mining lease under the Mineral Resources Act 1989. The applicant, Henry, sought compensation from the respondent, Georgetown Gold Operations, for alterations to the mining lease. The case was heard in the Supreme Court of Queensland.

The court was required to determine several legal issues, including the interpretation of the costs provisions under sections 283B(3) and 281(7) of the Mineral Resources Act 1989, and whether the principles governing these provisions were similar to those under section 34 of the Land Court Act 2000. Another issue was whether the applicant's rejection of Calderbank offers was unreasonable or imprudent, and if the applicant was entitled to indemnity costs. The court also needed to consider whether the respondent was entitled to its costs of specific applications and actions of the applicant that were unsuccessful or withdrawn.

The court found that the degree of success was a significant factor in determining costs but was not the default position. The court assessed the applicant's overall success in the proceedings and found that the applicant had acted reasonably and there was no basis for awarding costs against the applicant on individual applications or actions. The court held that the applicant was entitled to costs under the Mineral Resources Act 1989 and that the respondent should bear the costs of the proceedings. The court also found that the rejection of the Calderbank offers was not unreasonable or imprudent, and the applicant was not entitled to indemnity costs.

The court ordered that the respondent pay the applicant’s costs of and incidental to these proceedings to be agreed or, failing such agreement, to be assessed on the standard basis, subject to the order that each party bear their own costs of and incidental to an application filed by the applicant on 10 July 2014 that the hearing of this matter be adjourned.

Orders

Orders of the court

1. The respondent pay the applicant’s costs of and incidental to these proceedings to be agreed or failing such agreement to be assessed on the standard basis, subject to Order 2.

2. Each party bear their own costs of and incidental to an application filed by the applicant on 10 July 2014 that the hearing of this matter be adjourned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Henry v ERO Georgetown Gold Operations Pty Ltd [2016] QLC 17
PARTIES:	Thomas Peter Henry (applicant)
v
ERO Georgetown Gold Operations Pty Ltd CAN 104 826 959 (respondent)
FILE NO:	MRA036-14
DIVISION:	General Division
PROCEEDING:	Application for costs
DELIVERED ON:	10 March 2016
DELIVERED AT:	Brisbane
HEARD ON:	Heard on the papers Submissions closed 17 July 2015
HEARD AT:	Brisbane
MEMBER:	PA Smith
ORDERS:	1. The respondent pay the applicant’s costs of and incidental to these proceedings to be agreed or failing such agreement to be assessed on the standard basis, subject to Order 2. 2. Each party bear their own costs of and incidental to an application filed by the applicant on 10 July 2014 that the hearing of this matter be adjourned.
CATCHWORDS:	COSTS – Costs provisions under sections 283B(3) and 281(7) Mineral Resources Act 1989 – similar legal principles with s 34 Land Court Act 2000 – application for compensation for a material change of circumstances for a mining lease – factors governing discretion regarding costs – degree of success a significant factor but not the default position COSTS – Calderbank offers at common law – whether the rejection of Calderbank offers was unreasonable or imprudent – whether applicant entitled to indemnity costs COSTS – applicant successful with substantive costs order – whether respondent is entitled to its costs of specific applications/actions of the applicant that were unsuccessful or withdrawn – consideration of the issues – applicant found to have acted reasonably – no basis for awarding costs against applicant on individual applications/actions City of Brisbane Town Planning Act 1964 Land Court Act 2000 Mineral Resources Act 1989 State Development and Public Works Organisation and Other Legislation Amendment Act 2015 Anson Holdings Pty Ltd v Wallace and Anor (No 2) (2010) 31 QLCR130 BHP Billiton Mitsui Coal Pty Ltd v Isdale and Others (2015) QSC 107 BHP Queensland Coal Investments Pty Ltd v Cherwell Creek Coal Pty Ltd (No 2) (2009) QLAC 8 Calderbank v Calderbank (1976) 3 All ER 333 Dunn v Burtenshaw (2010) QLAC 5 ERO Georgetown Gold Operations Pty Ltd v Thomas Peter Henry (2015) QLAC 4 Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435 Henry v ERO Georgetown Gold Operations Pty Ltd (2015) QLC 13 J & D Rigging Pty Ltd v Agripower Australia Limited & Ors (2014) QCA 23 Ostroco v Department of Transport and Main Roads (No 3) (2014) QLAC 7 PT Limited and Westfield Limited v Department of Natural Resources and Mines (2007) 28 QLCR 295 at (22) Reeves v O’Riley (2013) QCA 285 Starr v Appleton (2009) QLC 102 Wallace v Anson Holdings Pty Ltd (2011) QLC 11 Wyatt v Albert Shire Council (1986) 1 Qd R 486 Xstrata Coal Queensland Pty Ltd v Friends of the Earth – Brisbane Co-Op Ltd (No 2) (2012) 33 QLCR 409
APPEARANCES:	Not applicable
SOLICITORS:	Emanate Legal for the applicant Miller Harris for the respondent