Kozik v Redlands City Council

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SUPREME COURT OF QUEENSLAND

CITATION:

Kozik v Redlands City Council [2025] QSC 124
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)
and
AUGUSTA VENTURES LIMITED ACN 00687054
(Intervener)

FILE NO/S:

BS 11364 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

4 June 2025

DELIVERED AT:

Brisbane

HEARING DATE:

30 April 2025

JUDGE:

Treston J

ORDER:

Order in accordance with paragraph [130].
CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CLASS ACTIONS OR GROUP PROCEEDINGS – COSTS – COSTS OUT OF FUND OR PROPERTY – POWER OF COURT TO ORDER - where the plaintiffs were successful in their class action proceeding against the defendant and judgment was delivered in their favour in 2021 for a sum of $3.79 million – where the 2021 judgment was appealed and the appeals dismissed in both the Queensland Court of Appeal and the High Court of Australia – where the plaintiffs obtained costs orders in their favour in all three proceedings – where the plaintiffs now seek distribution of the monies to Group Members in respect of the judgment sum and interest and costs on the judgment sum – where the plaintiffs seek costs in respect of a period for which there has no costs order, that is from 14 March 2024 onwards following the High Court’s judgment – where a common fund order was made in 2019 – where the common fund order requires the plaintiffs to seek a determination of the amounts to be paid to the litigation funder (intervener) prior to any distribution – whether the distribution should be made in the scheme contended for by the plaintiffs, that is broadly, by the “resolution sum” less approved deductions being paid by the defendant to the plaintiffs’ solicitors and distributed to Group Members thereafter under the common fund order – whether payment to the litigation funder (intervener) for commission ought to be deducted from the “resolution sum” prior to distribution – whether the defendant ought to pay the plaintiffs’ costs following 14 March 2024 and whether those costs ought to be fixed

Civil Proceedings Act 2011 (Qld), ss 103B, 103G, 103R, 103V, 103W, 103X, 103ZA, 103ZB, 103ZC
 Uniform Civil Procedure Rules 1999 (Qld), rr 679, 681, 687

Australian Securities and Investments Commission v Atlantic 3 (Financial Aust) Pty Ltd (No 3) [2008] 2 Qd R 298
Blairgowrie Trading Ltd and Another v Allco Finance Group Ltd (ACN 007 721 129) (recs and mgrs. apptd) (in liq) and Others (No 3) (2017) 343 ALR 476
BMW Australia Ltd v Brewster (2019) 269 CLR 574
Court v Spotless Group Holdings Ltd [2020] FCA 1730
Kozik & Ors v Redland City Council [2021] QSC 233
Krieger v Colonial First State Investments Limited [2024] FCA 1402
McMullin v ICI Australia Operations Pty Ltd (1998) 84 FCR 1
Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd

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Details
Case
[2025] QSC 124
Decision Date

CaseChat Overview and Summary

In the case of Kozik v Redlands City Council, the plaintiffs were successful in a class action proceeding against the Redlands City Council. The dispute centred on the validity of special charges levied on ratepayers for services related to canal or lakefront reserves, which were later found to be invalid due to non-compliance with statutory requirements. The plaintiffs, who owned properties within the Redland City Local Government area, sought to recover the unrefunded portion of these charges. The case culminated in a judgment in favour of the plaintiffs in 2021 for a sum of $3.79 million, which was subsequently affirmed by both the Queensland Court of Appeal and the High Court of Australia. The plaintiffs now seek to distribute the monies to the Group Members, which includes determining the amounts to be paid to the litigation funder and the Council's liability for costs incurred post-judgment.

The central legal issues the court had to address were the distribution of the judgment sum, interest, and costs among the Group Members, the deduction of the litigation funder's commission from the resolution sum before distribution, and the Council's responsibility for costs incurred by the plaintiffs following the High Court's judgment. The court also had to consider whether the plaintiffs' solicitors were entitled to additional costs from the defendant and whether those costs should be fixed.

The court ruled that the monies should be distributed to the Group Members according to the scheme proposed by the plaintiffs, which involved deducting the litigation funder's commission from the resolution sum before distribution. The court found that the plaintiffs' solicitors were entitled to additional costs from the defendant but did not fix the amount of those costs. The court also determined that the Council was responsible for paying the plaintiffs' costs incurred after the High Court's judgment.

The final orders of the court were that the monies should be distributed to the Group Members, with the litigation funder's commission deducted from the resolution sum, and that the Council should pay the plaintiffs' costs incurred after the High Court's judgment. However, the exact amount of those costs was not determined by the court.

Orders

Orders of the court

Order in accordance with paragraph [130].

Background

Background to the litigation

Neither the plaintiffs nor the Council opposed either aspect of Augusta’s submissions.Background to the proceedings The plaintiffs each owned properties with frontage on to a waterway within the Redland City Local Government area. Under resolutions passed by the Council each year from 2011 to 2016, rates notices were issued to taxpayers, including the plaintiffs, that included ‘Special Charges’ to fund capital and operational expenditure on services relating to three canal or lakefront reserves. Some of those Special Charges were spent on the services in or before March 2017 before the Council became aware, that the resolutions were invalid for non-compliance with certain statutory requirements. In late 2017 the Council refunded to ratepayers their respective share of unspent Special Charges. To recover the spent (that is the unrefunded) portion, the plaintiffs commenced a proceeding pursuing claims in debt and restitution. Group Members were registered owners of rateable land in that local government area who paid the Special Charges. There were 1,055 properties which were the subject of the Special Charges levied by the Council. There were over 2,200 Group Members, but 652 Group Members opted out of the proceedings. Ultimately there were approximately 1,620 Group Members remaining, in respect of whom the unrefunded portion of the Special Charges amounted to $3,791,536.80. Shine Lawyers, who ultimately became the solicitors for the plaintiffs, became aware of complaints from a number of ratepayers in relation to the Special Charges. Shine Lawyers carried out some investigation and concluded that 1,592 ratepayers had been charged the levy and that $12.596 million (before interest) remained unpaid. That information formed the basis of the class definition in the proceeding. Shine Lawyers held two “town hall” meetings, advertised, and wrote to affected ratepayers. By late November 2018, 182 ratepayers had registered their interest in a potential proceeding. Shine Lawyers did not engage in any further book building due to the substantial time and costs involved, and because the matter was considered to be a “small quantum” representative proceeding. Shine Lawyers filed a Common Fund Order (CFO) application seeking a CFO that would allow the proceeding to progress with an open class action without needing to sign up individual Group Members to costs agreements and funding agreements. Justice Boddice (as his Honour then was) made the CFO on 28 June 2019. The Council did not oppose the making of such an order. The CFO was made on 28 June 2019:“Common Fund1. Subject to further Order, pursuant to sections 13 and 103ZA of the Civil Proceedings Act 2011 (Qld) (CPA) and upon the undertaking from Augusta Ventures Limited, the Plaintiff and Shine Lawyers to each other and to the Court as set out in Annexure ‘B’ to these Orders, an Order that the Plaintiff and Group Members shall pay from any Resolution Sum (as defined in the Funding Terms being Annexure ‘A’ to these orders) an amount to be determined by the Court and not exceeding the amounts calculated in accordance with clause 6 of the Funding Terms, prior to any distribution to Group Members (Common Fund Order).”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The plaintiffs were successful in their proceeding and judgment was delivered in their favour by Justice Bradley (as his Honour then was) on 30 September 2021 for a sum of $3.79 million.[1] The terms of Justice Bradley’s order of that date were as follows:[1]Kozik & Ors v Redland City Council [2021] QSC 233.“THE COURT DECLARES THAT:1. Pursuant to s 103X of the Civil Proceedings Act 2011 (Qld), the group members affected by this judgment are 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 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 2011 and July 2016, excluding:(a)related bodies corporate, associated entities and officers of the defendant;(b)judges of this court;(c)officers, employees, and legal practitioners of or engaged by the solicitors for plaintiffs; and (d)ratepayers who have opted out.2. Pursuant to s.103V(1)(c) of the Civil Proceedings Act, the plaintiffs and group members are entitled to recovery from the defendant of the unrefunded amount of the special charges so levied.THE ORDER OF THE COURT IS THAT:3. Pursuant to s.103V(1)(a) and (b) of the Civil Proceedings Act, the answers to common questions of law and fact are determined between the plaintiffs, group members and the defendant, in terms of the schedule hereto.4. Pursuant to s.103V(1)(f), and (g), of the Civil Proceedings Act, there be judgment against the defendant:(a)for damages, in an aggregated amount in respect of the plaintiffs and group members, in the sum of $3,791,536.80 (judgment sum);(b)interest pursuant to s.58 of the Civil Proceedings Act on the judgment sum to the date of these orders, and any such s. 58 interest to be agreed and made the subject of a consent judgment, or in default of agreement, be assessed and adjudicated upon further hearing (interest adjudication).5. Pursuant to s. 59 of the Civil Proceedings Act, the time for payment of interest thereunder on the judgment sum is extended to 28 days from the date of these orders, but if not paid within such time interest thereon accrues and is payable by the defendant thereunder from the date of these orders to the date of payment thereof.6. In the event the defendant files a notice of appeal in respect of these orders (including the judgment sum):(a)the payment of the judgment sum and any interest adjudication is stayed until final judgment or other order of the Court of Appeal;(b)subject to judgment sum and any interest adjudication being set aside by or other order of the Court of Appeal, under s. 59 of the Civil Proceedings Act the defendant pay interest on the judgment sum from the date of these orders to the date of payment thereof, and on any interest adjudication from the date of such adjudication to the date of the payment thereof. 7. If the Defendant does not file a notice of appeal in respect of these orders, the judgment sum is payable in 28 days from the date of this order. 8. The defendant pay the plaintiffs’ costs of the proceeding on the standard basis to and including 10 September 2020 and thereafter on the indemnity basis.9. The judgment sum, any adjudicated interest and costs:(a)subject to Order 6 above or further order, be discharged by the defendant by payment to Shine Lawyers, as solicitors for the plaintiffs and group members, whose receipt therefor shall be a sufficient discharge to the defendant;(b)shall be held by the solicitors for the plaintiffs and group members on trust to be invested in an interest-bearing Australian bank account on short-term investment;(c)shall not be disbursed by such solicitors except by order of the Court.10. The proceeding be adjourned to a date to fixed to enable adjudication of interest under Order 4(b) above and any consequential matters and other matters required under Part 13A of Civil Proceedings Act to be heard and determined.11. The parties have liberty to apply.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.