Kozik v Redland City Council - [2021] QSC 233

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…

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: [2021] QSC 233
Decision Date: 13 September 2021

CaseChat Overview and Summary

The plaintiffs, owners of waterfront residences in the Redland City local government area, sought to recover special charges levied by the defendant Council to fund lake and canal works and services. The Council passed resolutions to levy these charges without complying with mandatory provisions in the relevant regulations. The Council refunded the amount of the special charges that had not been spent on the services, but contended it was not lawfully obliged to return the spent portion of the special charges. The plaintiffs argued that the Council's failure to comply with the regulations rendered the special charges invalid and therefore the Council was obligated to return the balance of the special charges.

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

2. The answers to the amended agreed questions common to the group members are:

(a) Question 1: Yes;

(b) Question 2: Yes;

(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.

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…