Leslie v Buttner (No 2) - [2022] QSC 164

SUPREME COURT OF QUEENSLAND

CITATION:

Leslie v Buttner & Anor (No 2) [2022] QSC 164

PARTIES:

MAXWELL GORDON LESLIE

(applicant)

v
ROBERT JOHN ALEXANDER BUTTNER AND JANICE ANNE BUTTNER

(first respondents)
SANCTUARY COVE PRINCIPAL BODY CORPORATE GTP 202
(second respondent)

FILE NO/S:

BS 1993 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application for costs

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Cooper J

ORDERS:

The applicant pay the respondents’ costs of and incidental to the proceeding to be assessed on the standard basis if not agreed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – COSTS OF AND INCIDENTIAL TO PROCEEDING – where the applicant sought declarations that development approvals granted by the second respondent to the first respondents were invalid and injunctive relief to remove renovation work undertaken pursuant to those approvals – where the application was dismissed – where the applicant accepts that costs should follow the event and be assessed on the standard basis – where the first and second respondent seek an order that the applicant pay their costs on the indemnity basis – where the first respondent made three offers of settlement – whether the applicant unduly prolonged the proceeding or otherwise acted unreasonably in conducting the proceedings – whether indemnity costs should be awarded

Civil Proceedings Act 2011 (Qld), s 15
Uniform Civil Procedure Rules 1999 (Qld), r 681, r 702, r 703
Sanctuary Cove Resort Act 1985 (Qld), s 104B, s 104C

Calderbank v Calderbank [1975] 3 All ER 333, cited
Leslie v Buttner & Anor [2022] QSC 131, related
LPD Holdings (Aust) Pty Ltd & Anor v Phillips, Hickey and
Toigo & Ors [2013] QCA 305, applied

S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No 2) [2020] QSC 323, cited

COUNSEL:

C Jennings QC for the applicant
B Kidston for the first respondents

B Strangman for the second respondent

SOLICITORS:

Clinton Mohr Lawyers for the applicant

Mahoneys for the first respondents

Grace Lawyers for the second respondent

Introduction

In this matter, the applicant sought declarations that development approvals granted by the second respondent to the first respondents were invalid and injunctive relief to remove renovation work undertaken pursuant to those approvals. For the reasons which I gave in the principal judgment,[1] the application was dismissed. The parties have now filed written submissions on costs.
[1]Leslie v Buttner & Anor [2022] QSC 131.
The applicant accepts that costs should follow the event and submits that the appropriate order is that the applicant pay the respondents’ costs of the proceeding to be assessed on the standard basis.
The first respondents and the second respondent each seek an order that the applicant pay their costs on the indemnity basis.
The grounds which the respondents submit warrant the exercise of the discretion to order that costs be assessed on the indemnity basis fall into two…

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.

Continue reading Leslie v Buttner (No 2)

Details

AGLC: Leslie v Buttner (No 2) [2022] QSC 164
Case: [2022] QSC 164
Decision Date: 11 August 2022

CaseChat Overview and Summary

Leslie v Buttner (No 2) is a case where the applicant sought declarations that certain development approvals granted by the second respondent to the first respondents were invalid and injunctive relief to remove renovation work undertaken pursuant to those approvals. The application was dismissed by the court, leading to the issue of costs. The applicant accepted that costs should follow the event and be assessed on the standard basis, but the respondents sought an order that the applicant pay their costs on the indemnity basis, citing the applicant’s conduct in the proceedings.

The court considered whether the applicant unduly prolonged the proceedings or otherwise acted unreasonably in conducting the proceedings, which could warrant an order for indemnity costs. The respondents argued that the applicant made several offers of settlement, which were reasonable, and that the applicant’s conduct in advancing contentions that he should have known had no chance of succeeding contributed to the prolongation of the proceedings. However, the court was not satisfied that the applicant’s conduct warranted an order for indemnity costs. The court found that the applicant did not unduly prolong the proceeding or otherwise act unreasonably in the commencement or prosecution of the proceeding.

As a result, the court concluded that the applicant should pay the respondents’ costs of and incidental to the proceeding to be assessed on the standard basis if not agreed. This means that the applicant will bear the costs of the proceedings as per the usual practice, without the higher indemnity costs being awarded to the respondents. This decision underscores the principle that indemnity costs are reserved for cases where the conduct of the party is particularly egregious.

Orders

Orders of the court

The applicant pay the respondents’ costs of and incidental to the proceeding to be assessed on the standard basis if not agreed.

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

Ultimately, I am not satisfied that any of the matters identified in the respondents’ submissions on costs warrant a finding that the applicant unduly prolonged the proceeding by advancing contentions that properly advised, he should have known had no chance of succeeding or otherwise acted so unreasonably in the commencement or prosecution of the proceeding as to warrant an order for indemnity costs.Conclusion The order will be that the applicant pay the respondents’ costs of and incidental to the proceeding to be assessed on the standard basis if not agreed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Leslie v Buttner & Anor (No 2) [2022] QSC 164
PARTIES:	MAXWELL GORDON LESLIE (applicant) v ROBERT JOHN ALEXANDER BUTTNER AND JANICE ANNE BUTTNER (first respondents) SANCTUARY COVE PRINCIPAL BODY CORPORATE GTP 202 (second respondent)
FILE NO/S:	BS 1993 of 2022
DIVISION:	Trial Division
PROCEEDING:	Application for costs
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	11 August 2022
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGE:	Cooper J
ORDERS:	The applicant pay the respondents’ costs of and incidental to the proceeding to be assessed on the standard basis if not agreed.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – COSTS OF AND INCIDENTIAL TO PROCEEDING – where the applicant sought declarations that development approvals granted by the second respondent to the first respondents were invalid and injunctive relief to remove renovation work undertaken pursuant to those approvals – where the application was dismissed – where the applicant accepts that costs should follow the event and be assessed on the standard basis – where the first and second respondent seek an order that the applicant pay their costs on the indemnity basis – where the first respondent made three offers of settlement – whether the applicant unduly prolonged the proceeding or otherwise acted unreasonably in conducting the proceedings – whether indemnity costs should be awarded Civil Proceedings Act 2011 (Qld), s 15 Uniform Civil Procedure Rules 1999 (Qld), r 681, r 702, r 703 Sanctuary Cove Resort Act 1985 (Qld), s 104B, s 104C Calderbank v Calderbank [1975] 3 All ER 333, cited Leslie v Buttner & Anor [2022] QSC 131, related LPD Holdings (Aust) Pty Ltd & Anor v Phillips, Hickey and Toigo & Ors [2013] QCA 305, applied S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No 2) [2020] QSC 323, cited
COUNSEL:	C Jennings QC for the applicant B Kidston for the first respondents B Strangman for the second respondent
SOLICITORS:	Clinton Mohr Lawyers for the applicant Mahoneys for the first respondents Grace Lawyers for the second respondent