Kalglen Pty Ltd v Brisbane City Council; Stratcliff Pty Ltd v Brisbane City Council

[2009] QPEC 34

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Kalglen Pty Ltd v Brisbane City Council & Ors; Stratcliff Pty Ltd v Brisbane City Council & Anor [2009] QPEC 34

PARTIES:

2954 of 2008

KALGLEN PTY LTD ACN 010 760 540

Applicant

V

BRISBANE CITY COUNCIL

Respondent

And

AUSTRALIAN POSTAL CORPORATION

Co-respondent

2955 of 2008

KALGLEN PTY LTD ACN 010 760 540

Applicant

V

BRISBANE CITY COUNCIL

Respondent

And

STRATCLIFF PTY LTD ACN 066 527 271

Co-Respondent

3573 of 2008

STRATCLIFF PTY LTD ACN 066 527 271

Applicant

V

BRISBANE CITY COUNCIL

First Respondent

And

KALGLEN PTY LTD ACN 010 760 540

Second Respondent

FILE NO/S:

2954/2008, 2955/2008, and 3573/2008

DIVISION:

Original jurisdiction

PROCEEDING:

Application for costs

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

8 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

7 May 2009

JUDGE:

Alan Wilson SC, DCJ

ORDER:

1 That Kalglen Pty Ltd pay Stratcliff Pty Ltd’s costs of and incidental to Kalglen’s application (2955 of 2008) and Stratcliff’s cross-application (3573 of 2008) assessed on an indemnity basis, including the costs of both senior and junior counsel;

2 that Kalglen Pty Ltd pay Australian Postal Commission’s costs of and incidental to Kalglen’s application (2954 of 2008) assessed on an indemnity basis. 

CATCHWORDS:

ENVIRONMENT AND PLANNING – PRACTICE AND PROCEDURE – COSTS – COSTS IN PLANNING AND ENVIRONMENT COURT – where applications made were frivolous and vexatious – where applicant ignored own obligation to grant an easement whilst seeking an order that the reciprocal obligation of the other party to grant an easement be enforced –  whether  the circumstances warrant an exercise of discretion to award indemnity costs – whether costs should include both senior and junior counsel

Integrated Planning Act 1997 s 4.1.23
Local Government (Planning and Environment) Act 1990, s 7.6(1A)(a)

Cases considered:
Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Gold Coast City Council v Metrostar Pty Ltd [2005] QPELR 17
Mudie v Gainriver Pty Ltd (No. 2) (2003) 2 Qd R 271
Yalgan Investments Pty Ltd v Albert Shire Council (2000) 2 Qd R 222

COUNSEL:

M Hinson SC for Kalglen Pty Ltd
T Trotter for Brisbane City Council
Mr Kann, solicitor, for Australian Postal Corporation

R S Litster SC and J Lyons for Stratcliff Pty Ltd

SOLICITORS:

Robert Milne for Kalglen Pty Ltd
Brisbane City Legal Practice for Brisbane City Council
Clarke Kann Solicitors for Australian Postal Corporation

Redmond Van De Graff for Stratcliff Pty Ltd

1. These proceedings concerned three adjoining properties at Oxford Street, Bulimba and a system of interconnecting, complementary easements which they should have enjoyed but for certain historical events outlined in Reasons for judgment delivered on 6 May 2009. 

1. In short an owner of one the properties, Kalglen Pty Ltd, brought proceedings involving the other two, Australian Postal Corporation (APC) and Stratcliff Pty Ltd seeking enforcement orders against them that they formally grant easements.  Stratcliff cross-applied for a similar order against Kalglen.  After further submissions, it was ordered on 7 May that both of Kalglen’s applications (2954/2008 and 2955/2008) be dismissed, but Kalglen was ordered (in 3573/2008) to take steps to comply with conditions which would lead to it perfecting the grant of an easement over its property.

1. Both Stratcliff and the Australian Postal Corporation sought costs against Kalglen. 

1. Costs in this jurisdiction are governed by s 4.1.23 of the Integrated Planning Act 1997 (IPA) which contains, firstly, a primary guiding principle that each party in this court will ordinarily bear its own costs: section 4.1.23(1). The court does, however, have a discretion to order costs ‘… as it considers appropriate …’ in certain circumstances listed in sub-section (2) including if the court concludes that the proceeding was frivolous or vexatious.  That is the ground upon which Stratcliff and APC rely.

1. A similar power under the legislation which preceded IPA (the Local Government (Planning and Environment) Act 1990, s 7.6(1A)(a)) was extensively considered by the Court of Appeal in Mudie v Gainriver Pty Ltd (No. 2) (2003) 2 Qd R 271. The Court held that the words should be given their ordinary meaning, and referred to the Macquarie and Oxford Dictionaries. ‘Frivolous’ means (among other things) ‘… having no reasonable grounds’; and ‘vexatious’ has, relevantly, the meaning ‘… instituted without sufficient grounds for winning; purely to cause trouble or annoyance to the defendant’.

1. My reasons for judgment in the three applications contain, as I was reminded, passages which point strongly to the conclusion that Kalglen’s proceedings can fairly be described in those terms.  Its conduct in ignoring its own obligations to grant an easement; its construction of barriers which prevented interconnectivity between the neighbouring developments; its non-compliance with an enforcement notice; and, its lodgment of a Development Application which ignored its existing obligations were inimical to the relief it sought, to a degree which means the proceedings were plainly doomed to fail.

1. That aspect of the matter was exacerbated by its inability to advance any legitimate defence to Stratcliff’s proceeding; and, the strong inference that the proceedings involved an attempt to obtain relief which was never, realistically, available and in a way which was, in some respects, troubling and discreditable.

1. This is, I am satisfied, a clear case for a finding that Kalglen’s conduct was both frivolous and vexations and it ought to pay the costs of APC and Stratcliff in the two actions it brought against them, and Stratcliff’s costs in its cross-application.

1. Both Stratcliff and APC seek those costs on an indemnity basis.  It has already been held, in this court, that such an award may be made: Gold Coast City Council v Metrostar Pty Ltd [2005] QPELR 17. In Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 the circumstances which might warrant the exercise of a discretion to award indemnity costs were considered and it was held, in particular, that an order might be attracted where a party has conducted a case for some ulterior motive or with wilful disregard of the plain facts or the clearly established law[1].

   [1]Per Sheppard J at 254, 255 and 257.

1. As appears from the passages set out in paragraphs 9, 12, 18, 20 and 21 of the Reasons in this matter, that is an apt description of Kalglen’s position, and conduct.  This is, therefore, an appropriate case in which to order that costs be assessed on the higher basis.

1. Kalglen submitted, however, that Stratcliff should not have the costs of two counsel.  It was said for Kalglen, with reference to a phrase used by Byrne J (as his Honour then was) in Yalgan Investments Pty Ltd v Albert Shire Council (2000) 2 Qd R 222, that the appropriate test is whether or not the retention of both senior and junior counsel was a ‘…luxury or over-cautious’[2]. 

   [2]At 228.

1. What Kalglen sought was a serious remedy – an enforcement order against Stratcliff – and it did so in circumstances where Stratcliff (and APC) were at risk of losing, forever, easement rights they should have been able to exercise over Kalglen’s land.  The dispute involved large parcels of what, it may safely be assumed, is valuable commercial property in a busy and popular suburban retail street.  Kalglen itself retained senior counsel.  It cannot be said, in those circumstances, that Stratcliff’s retention of two counsel can be fairly described in terms of the phrase used by Byrne J.

1. It is appropriate, then, to order that Kalglen pay Stratcliff’s costs of and incidental to Kalglen’s application (2955 of 2008) and Stratcliff’s cross-application (3573 of 2008) assessed on an indemnity basis, including the costs of both senior and junior counsel; and, that Kalglen pay APC’s costs in 2954 of 2008, also assessed on an indemnity basis.