Hughes v Dobe
[2014] QLC 36
•27 October 2014
LAND COURT OF QUEENSLAND
CITATION: Hughes v Dobe [2014] QLC 36 PARTIES: Richard Brian Hughes and Kelva Dyan Hughes
(Applicants)v William Thomas Gordon Dobe and Lennette Ann Dobe
(Respondents)FILE NO: LAA011-10 DIVISION: Land Court of Queensland PROCEEDING: Application for costs. DELIVERED ON: 27 October 2014 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: His Honour, WL Cochrane ORDER: 1. The Application for costs is allowed.
2. The Respondents are to pay the Applicants costs of and incidental to the proceeding including the application for costs on the standard basis.
3. Such costs are to be agreed between the parties on or before 27 November 2014 or failing agreement are to be assessed.
CATCHWORDS: Practice and Procedure – Application for Costs –Land Court Act 2000 s 34(1) – Costs in Boundary Determination -
Costs – Land Act 1994 – s 435
BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd (No. 2) [2009] QLAC 0008
Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors (No 2) [2012] QLAC 002
Wallace v Anson Holdings Pty Ltd & The Environmental Protection Agency [2009] QLC 0107
APPEARANCES: Mr JAC Bell QC for the Applicants.
Mr S Fynes-Clinton for the Respondents.SOLICITORS: Thynne and McCartney for the Applicants.
Ruddy Tomlins & Baxter for the Respondents.
Background
This is a determination of an application for Costs of and incidental to proceedings which were heard by me and which required the determination of the location of a boundary between two grazing properties, each of which was held on a Lease from the Crown.
The proceedings in respect of which the Costs Order is sought was a referral by the relevant Minister pursuant to s 435 of the Land Act 1994.
That section provides:
“435 Minister may refer matters to the court
…
(2)The Minister may refer a dispute about the boundary of a term lease for pastoral purposes to the court for decision, even if the Minister is not a party to the dispute.”
The Land Act 1994 is silent as to any issue arising in respect of costs of proceedings brought before this Court pursuant to that Act.
The costs powers of this Court, unless a provision is made in another Act, are found in s 434 of the Land Court Act 2000.
That section provides:
“34 Costs
(1)Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate.
(2)If the court does not make an order under subsection (1), each party to the proceeding must bear the party’s own costs for the proceeding.”
The initial referral to this Court required the determination of the correct location of the boundary between two grazing properties which, in the original documentation referred to this Court, were identified as “Strathalbyn” and “Piccaninny”.
A more precise identification of the properties, it emerged, was that they are pastoral leases granted by the Crown for holdings referred to as “Mount Piccaninny” and “Johnnycake North”.
The parties identified as the Applicants in this proceeding Richard Brian Hughes and Kelva Dyan Hughes, are the lessees of the property identified as Johnnycake North, while the Respondents, William Thomas Gordon Dobe and Lennette Ann Dobe, are the lessees of the property referred to as “Mount Piccaninny”.
The subject lands were created as Preferred Pastoral Holdings granted by the Queensland Government as pastoral leases from on or about 30 June 1960.
Originally there were two properties referred to as “DeSalis” and “Johnnycake”. DeSalis was, in about 1983, subdivided into two portions and became DeSalis in the north and Mount Piccaninny in the south.
In a similar fashion the Johnnycake property has become Johnnycake North and Johnnycake South.
The issue which led to the need for this Court to determine the precise location of the boundary is that there was an unsurveyed boundary, which was depicted on the documents issued by the Minister for Public Lands and Irrigation as generally an oblique boundary running from the north-west to the south-east and then generally due east.
Other parts of the properties were surveyed and had cadastral descriptions.
The present parties, Mr and Mrs Dobe, purchased their property in about June 1996 and Mr and Mrs Hughes purchased Johnnycake North in or about 2004.
A complicating factor in the original proceedings was that there was fencing constructed on what may have been thought to indicate the boundary between the parties. The Hugheses for their part contended that the fence was in the wrong position and the Dobes contended that it constituted part of the boundary.
In the primary hearing the Applicants, Mr and Mrs Hughes, relevantly provided their own statements to the Court and called evidence from Anthony Joseph Hoffman, a surveyor.
They also tendered letters from Russell Priebbenow, Director of Surveys for the Lands Department.
The Respondents, Mr and Mrs Dobe, called evidence from Geoffrey Joseph Watts and James McLeod Kingdon Blomfield as well as providing evidence in the form of statements by themselves.
The Dobes engaged a surveyor, Mr Leslie Sherwood Todd of WS Surveys who, like Mr Hoffman, produced a report expressing his opinions.
Needless to say the surveyors did not agree on the location of the boundary, hence the need for this Court to make a determination.
It is unnecessary to traverse in any detail the evidence given by either party in the earlier hearing. It is sufficient to note that my decision was that I preferred the approach taken by Mr Hoffman, and I found that the boundary of the properties in dispute was that contended for by Mr Hoffman and marked in its original position in the original lithographic plans, which accompanied the invitation to persons to apply to take up occupancy of the original “DeSalis” holdings, and partly described by metes and bounds in the original description.
The outcome of that finding was that the boundary between Lot 7 on SB730 and Lots 5347 on PH1818 and 5348 on PH1819 was a straight line running at a bearing of about 160°.
The Applicants now ask for their costs.
The Applicants, in their written outline of submissions, contend that they were “entirely successful” in their application for a declaration that the boundary between their property and that of the Respondents was the straight line running at a bearing of about 161°.
They go on to say:
“The circumstances of the matter are such that the ‘deeply embedded” rule that costs usually follow the event should apply.”
I should immediately observe that I am not convinced that there is any “deeply embedded” rule that Costs usually follow the event. Any perusal of s 34 of the Land Court Act would confirm that view.
Member Scott in Wallace v Anson Holdings Pty Ltd[1] had to consider exactly the same proposition. That was in the context of an application for a mining lease pursuant to the Mineral Resources Act. His Honour’s observations however, about costs following the event, are entirely apposite to the present case.
[1] Wallace v Anson Holdings Pty Ltd & The Environmental Protection Agency [2009] QLC 0107.
He observed:
“It follows that the discretion bestowed on the Court by s.34(1) is complete and ought not to be exercised by reference to any guiding rule or principle other than that the discretion be exercised judicially.”[2]
[2] Wallace v Anson Holdings Pty Ltd & The Environmental Protection Agency [2009] QLC 0107 para [12].
The Applicants, in their written submissions, drew the Court’s attention to the dicta contained in BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd (No. 2)[3].
[3] BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd (No. 2) [2009] QLAC 0008.
The passages to which the Court’s attention was drawn were paragraphs 6, 7, 11 and 12 which relevantly stated:
[6]In Wyatt v Albert Shire Council[4], the Full Court considered s.31(1) of the City of Brisbane Town Planning Act 1964 which relevantly provided that the Local Government Court may make such order as it thinks fit as to the costs of any proceeding before it. The similarity between s.31(1) and s.34(1) has been recognized by this Court in the past.[5] The Full Court held in Wyatt that the effect of s.31 was that the discretion conferred with respect to costs is complete or full. The discretion is not to be exercised arbitrarily, but judicially, that is, for reasons that can be considered or justified. Resort may be had to any settled practice of a court but a purported exercise of discretion which fails because the mind is closed to relevant considerations through a rigid adherence to preconceptions is an error of law. Thus an approach that required exceptional circumstances to be established before such a wide discretion is exercised is likely to be incorrect. Similarly it would not be right to start with the preconception that costs follow the event. The Court also said that it would be wrong to attempt to lay down rules governing the exercise of the discretion and each case should be governed by its circumstances.[6]
[4] [1986] 1 Qd R 486.
[5]Kabale Holdings Pty Ltd v Chief Executive, Department of Transport (1997) 18 QLCR 166 at 198; Haber v Department of Main Roads [2004] QLAC 102 at [6]. The decision in Kabale Holdings dealt with s.44(16) of the Land Act 1962 which was, relevantly, to the same effect as s.34(1) of the Land Court Act 2000.
[6] At 489, 493.
[7]The decision in Wyatt was subsequently considered by the Full Court in Solomon Services Pty Ltd v The Council of the Shire of Woongarra[7]. While acknowledging that the discretion is an unfettered one, Dowsett J said that, in exercising the discretion, a non-exhaustive list of relevant matters to be considered might include the issues which have been raised, their public nature or otherwise, the extent to which a party may be said to have a commercial interest in the outcome, the success or failure of the parties on particular issues, the amount of time spent on issues and the extent to which they might be said to have been arguable or otherwise, and the difficulty of resolving the matter according to commonly understood principles.[8]
[7] [1988] 2 Qd R 202.
[8] At 207.
…
[11]We also accept that the principles raised by the respondent were arguable and that the respondent has acted reasonably in the presentation of its argument at first instance and on appeal. Neither of those are factors which point positively to the exercise of our discretion in favour of the respondent.
[12]The appellants have been successful in this appeal. We do not accept that the principle that costs follow the event should not be applied in this matter. Section 34(1) of the Land Court Act gives this Court an unfettered discretion as to the award of costs. As this Court has said previously, the rule that costs will usually follow the event is one which is deeply embedded in our law[9] and that is a factor which may be taken into account in exercising our discretion under s.34(1) bearing in mind that this dispute is between significant commercial entities on the part of the appellants and a respondent who can call upon a funder for this expensive litigation. In our opinion that principle points to an award of costs in favour of the appellants and we can find no compelling reasons to order otherwise. [Emphasis added.]”
[9] Barns v Director-General, Department of Transport (1997) 18 QLCR 133 at 135.
The Applicants also drew the Court’s attention to the Decision of Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors (No. 2)[10] where the Land Appeal Court said[11]:
“… The discretion to award costs is unfettered. However the rule often followed, and the rule incorporated in r 689 of the Uniform Civil Procedure Rules 1999, is that costs follow the event. That rule, while it does not govern the exercise of the discretion here, nonetheless informs it, as there is justice in that approach. It protects those put to unnecessary and substantial expense at the behest of others.”
[10] Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors (No 2) [2012] QLAC 002.
[11] At para [4].
The Applicants, in their written submissions, pointed to what they identified as five factors which they say weigh in favour of exercise of a discretion to order the Respondent to pay costs.
Those five factors reflect really the observations made by Dowsett J in Solomon Services Pty Ltd v The Council of the Shire of Woongarra[12].
[12] Solomon Services Pty Ltd v. The Council of the Shire of Woongarra (1988) 2 QdR 202 at 207.
The observations of Dowsett J are recited in the extract above from the Cherwell Creek Coal Decision.
In the Solomon Services case His Honour went on to say[13]:
“I do not for a moment suggest that these considerations are exhaustive, and I have no doubt that the learned judges of the Local Government Court, who are much more experienced in these matters than am I, will be able to add many others. A consideration of all relevant issues will indicate whether or not an order for costs is indicated in the circumstances of that case.”
[13] Page 207.
Notwithstanding the Applicants’ contention that they identified five factors, my review of their written outline leads me to suggest that they identified eight factors.
The eight factors emphasised by the Applicants are as follows:
1.The Applicants were highly successful at the Hearing.
2.My observations in the Decision that there was no indicia of an evidentiary sort which suggested that it was intended that the boundary was as contended by the Respondents.[14]
3.The affected properties being held by the parties under Crown Pastoral Leases are commercial properties and accordingly there was a commercial interest in the outcome of the Hearing. They emphasised that the disputed land comprises in excess of 1,000 hectares. The use of which land was denied to the Applicants in the past (dating from the time that the Respondents asserted their claim) and which has a commercial use for the future.
4.The Respondents have had the use of the commercial land during the period of the dispute while the Applicants have been paying the Rates or Crown Rental on that land and the Applicants were required to bring the present proceedings to vindicate their claim to the land.
5.The Applicants had made offers of a commercial nature to forego any claim for reimbursement of Rates or Crown Rental if the Respondents agreed to re-fence the land along the true boundary and these offers were refused.
6.The only settlement offers made by the Respondents involved the Respondent obtaining Title to the disputed land to the loss of the Applicants[15].
7.The disinclination of the Applicants to accept the Respondents offers gave the Applicants no choice but to incur the cost of proceeding with the Hearing to vindicate their claim to the disputed land.
8.There was no evidence to suggest that an Order that the Respondents pay the Applicants costs would cause undue (or any) financial hardship for the Respondents.
[14] See the reasons at paragraph 165.
[15] See the Affidavit of Richard Brian Hughes at Exhibits RBH3 and RBH4.
Unsurprisingly the Respondents, in their written outline of submissions, contended that there were no proper grounds for a Costs Order to be made against their own client and contended that the appropriate Order ought be that each party bear their own costs.
In support of that contention the Respondents identified five factors which, it was submitted, supported an Order to the effect that the parties should bear their own costs.
The first proposition advanced by the Respondents was that the litigation, which ultimately resulted in a Decision in favour of the Applicants, concerned the question in relation to an unsurveyed boundary and in respect of which there was little authority.
In that regard the Respondents submitted:
“The available authority were old, conflicting, and relied upon a source of early U.S. authorities and interpretations of the practical effect of those authorities by lay practitioners whose views had, in the circumstances, an influential effect on the parties’ positions.”[16]
[16] Respondent’s written outline of submissions para 9.
The consequence of that submission, if it were accepted, was that, at very least, the Respondents’ case was an arguable one.
Secondly, the Respondents submit that weight ought be given to the attempts of the Respondents to resolve the matter and the fact that they advanced proposals for settlement ought to weigh in their favour.
Thirdly, the Respondents point to the willing participation by the Respondents in a mediation which, it is said by the Respondents:[17]
“Brought into focus the unique nature of the dispute and the uncertainty of the law in relation to the dispute.”
[17] Respondent’s written outline of submissions para 11.
Fourthly, the Respondents submit that the participation by them in a mediation ought count in their favour.
The Respondents, in the written submissions delivered on behalf of them dispute that there was any “tactic” of delay or unreasonable desire not to negotiate on commercial terms.
Fifthly, the Respondents contend:[18]
“The case was characterised by an inherent difficultly of resolving the matter according to commonly understood principles.”
[18] Respondent’s written outline of submissions para 13.
I am unsure as to precisely what that proposition means.
In an attempt apparently, to clarify the proposition the Respondents counsel continued:
“That is a circumstance to be understood as distinct from the question of whether each side had a clearly arguable case.”
I propose to respond in short form to each of the propositions advanced by the Respondents.
I do not accept that the authorities upon which each party was caused to rely were necessarily old or conflicting, nor that they relied upon a source of early United States authorities.
I believe I was able to glean from all of the relevant authorities presented to me the matters to which the Court was compelled to have regard were clearly identifiable and resulted in a Decision adverse to the contentions of the Respondents. I was not led to resort to early United States Authorities.
As to the second point raised by the Respondents, it is true and in their favour that they did initiate attempts to resolve the matter and to advance proposals for settlement. However, those proposals were, in the ultimate event, proposals which would have resulted in the Respondents acquiring possession and control of the land to which they were not otherwise entitled.
The mere fact of the occurrence of a mediation in which both parties participated is, in my view, not sufficient to enable this Court to disregard the outcome of the Court-based determination.
As to the fourth proposition advanced by the Respondents I am not moved by any proposition advanced to the effect that the Respondents were embarking on some tactic of delay or an unreasonable resistance to negotiating on commercial terms.
The ambitions of offers for settlement and the willingness to negotiate a “commercial” outcome to a dispute does not, in my view, displace an inclination by a party to rely upon a Court to determine their legal entitlements.
Indeed, the ultimate outcome of a Court determined resolution to a dispute about matters such as boundaries, clarifies the position taken by each of the contended parties. It demonstrates that, notwithstanding an “arguable” case, one party clearly was wrong.
As I hope the Decision demonstrates, the outcome was a consequence of the application of commonly understood principles relating to boundary disputes to the evidence available to me including the documentation extant at the time of the grant of the lease.
Having regard to both the area of land involved and its potential commercial value, I find that this is a boundary dispute attended by significant commercial consideration.
Further, I am influenced by the fact that it was only by resort to the Court that the Applicants were able to successfully agitate for the identification of the proper boundaries between their property and that of the Respondents.
Further, I accept that the Respondents made gestures directed towards resolving the matter but I also find that those gestures were designed to create a result which heavily favoured the Respondents and which were, in the event, contrary to the determination of the location of the boundary which I made.
Further, I should record that I do accept, based upon the affidavit of William Thomas Gordon Dobe sworn 7 June 2013, that Mr Dobe and the rest of his family believed that the legal boundary line was the line in accordance with the constructed fence.
I reject however his proposition that I should be moved by the impracticality of constructing a fence on the boundary line as contended for by the Applicants and as ultimately found by me.
Similarly, I am unmoved by Mr Dobe’s assertion that the Applicants failed to make any alternative offers of compromise in the face of the offers made by the Respondent to which I refer above.
It was not for the Applicants to reach some sort of commercial resolution of the matter. Had the Decision gone against them they could well have found themselves in exactly the same position as the Respondents.
In all of the circumstances I am satisfied that an appropriate exercise of my discretion with respect to the issue of costs of the Hearing and the costs of the Application for Costs is that Costs should be paid by the Respondents on a standard basis and I order accordingly.
Orders:
The Application for costs is allowed.
The Respondents are to pay the Applicants costs of and incidental to the proceeding including the application for costs on the standard basis.
Such costs are to be agreed between the parties on or before 27 November 2014 or failing agreement are to be assessed.
HIS HONOUR, WL COCHRANE
MEMBER OF THE LAND COURT
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