SUPREME COURT OF QUEENSLAND
CITATION:
Kozik & Ors v Redland City Council [2021] QSC 233
PARTIES:
JOHN MICHAEL KOZIK
(first plaintiff)
SIMON JOHN AKERO
(second plaintiff)
SARAH AKERO
(third plaintiff)NEIL ROBERT COLLIER
(fourth plaintiff)
v
REDLAND CITY COUNCIL(defendant)
FILE NO:
BS 11364 of 2018
DIVISION:
Trial
PROCEEDING:
Civil
DELIVERED ON:
13 September 2021
DELIVERED AT:
Brisbane
HEARING DATE:
14, 15 and 17 June 2021
JUDGE:
Bradley J
ORDER:
1. Pursuant to s 103X of the Civil Proceedings Act (2011) (Qld), the group members affected by this judgment are all the registered owners of rateable land, including building units, in the Redland City local government area who paid the Raby Bay Tidal Works (Community Title Scheme) Special Charge, Raby Bay Tidal Works (Non Community Title Scheme) Special Charge, the Raby Bay Marina Special Charge, the Aquatic Paradise Marina Special Charge, the Aquatic Paradise Special Charge, or the Sovereign Waters Lake Special Charge levied by the defendant between June 2011 and July 2016, excluding:
(a) related bodies corporate, associated entities and officers of the defendant;
(b) judges of this court; and
(c) officers, employees, and legal practitioners of or engaged by the solicitors for the plaintiffs.
2. The answers to the amended agreed questions common to the group members are:
(a) Question 1: Yes;
(b) Question 2: Yes;
(c) Question 3
(i) 3(a): Yes; and
(ii) 3(b): Yes;
(d) Question 4:
(i) 4(a): Yes; and
(ii) 4(b): No; and
(e) Question 5:
(i) 5(a): No; and
(ii) 5(b): Not necessary to answer.
CATCHWORDS:
LOCAL GOVERNMENT – POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY – POWERS GENERALLY – ULTRA VIRES OR ILLEGAL EXERCISE OF POWER– where the plaintiffs owned waterfront residences on land within the Redland City local government area – where the defendant local Council passed resolutions to levy special charges to fund lake and canal works and services (‘the services’) – where the resolutions were passed without compliance with mandatory provisions in the relevant regulations – where the Council refunded the amount of the special charges that had not been spent on the services – where the Council contends that it is not lawfully obliged to return the spent portion of the special charges – whether the plaintiffs are entitled to recover the balance of the special charges
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CLASS ACTIONS OR GROUP PROCEEDINGS – where the claim is a representative action under Part 13A of the Civil Proceedings Act 2011 (Qld) – where the plaintiffs bring their claim on behalf of a group of registered home owners in the local government area who paid the special charges (‘the group members’) – where the Court is to decide five questions of law or fact common to the claims of the group members
REAL PROPERTY – RATES AND CHARGES – RATING OF LAND – RECOVERY OF OVERPAID RATES – where the Council passed invalid resolutions for special charges – where the special charges were paid in rate notices – whether the…
Keep reading for free
Create a free CaseChat account to read Kozik v Redland City Council and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2021] QSC 233
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the plaintiffs were entitled to recover the balance of the special charges, whether the Council was obligated to return the percentage of invalid special charges, and whether the Council could avoid its statutory obligation to return the balance of the special charges by defence that to do so would unjustly enrich the plaintiffs and group members. The court also had to consider whether the plaintiffs could recover the balance of the special charges as money had and received.
The court held that the Council was not lawfully obliged to return the spent portion of the special charges as this would unjustly enrich the plaintiffs and group members. The court found that by reason of the invalid resolutions, the Council had no right to make, use or retain any part of the special charges. However, the services had conferred some benefit on the plaintiffs and group members. The court held that the plaintiffs were entitled to recover the balance of the special charges as money had and received. The court further held that the Council was obligated to return the percentage of invalid special charges.
The court made orders pursuant to section 103X of the Civil Proceedings Act 2011 (Qld) to determine the group members affected by this judgment and answered the amended agreed questions common to the group members. The court found that the plaintiffs were entitled to recover the balance of the special charges as money had and received.
Orders
Orders of the court
1. Pursuant to s 103X of the Civil Proceedings Act (2011) (Qld), the group members affected by this judgment are all the registered owners of rateable land, including building units, in the Redland City local government area who paid the Raby Bay Tidal Works (Community Title Scheme) Special Charge, Raby Bay Tidal Works (Non Community Title Scheme) Special Charge, the Raby Bay Marina Special Charge, the Aquatic Paradise Marina Special Charge, the Aquatic Paradise Special Charge, or the Sovereign Waters Lake Special Charge levied by the defendant between June 2011 and July 2016, excluding:
(a) related bodies corporate, associated entities and officers of the defendant;
(b) judges of this court; and
(c) officers, employees, and legal practitioners of or engaged by the solicitors for the plaintiffs.
2. The answers to the amended agreed questions common to the group members are:
(a) Question 1: Yes;
(b) Question 2: Yes;
(c) Question 3
(i) 3(a): Yes; and
(ii) 3(b): Yes;
(d) Question 4:
(i) 4(a): Yes; and
(ii) 4(b): No; and
(e) Question 5:
(i) 5(a): No; and
(ii) 5(b): Not necessary to answer.
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.