LGM Enterprises Pty Ltd v Brisbane City Council
[2008] QLAC 231
•22 December 2008
LAND APPEAL COURT OF QUEENSLAND
CITATION:
LGM Enterprises Pty Ltd v Brisbane City Council [2008] QLAC 0231
PARTIES:
LGM Enterprises Pty Ltd (ABN 850 916 49 660)
Claimant/Appellant
v
Brisbane City Council
Respondent
FILE NO:
LAC2008/0081
DIVISION:
Land Appeal Court of Queensland
PROCEEDING:
Application for costs
ORIGINATING COURT:
Land Court of Queensland
DELIVERED ON:
22 December 2008
DELIVERED AT:
Brisbane
THE COURT:
White J
Mrs CAC MacDonald, President of the Land Court
Mr RS Jones, Member of the Land CourtORDERS:
1. The cost order made by the Land Court on 28 May 2008 is set aside.
2. Instead, it is ordered that the respondent pay the appellant’s costs of and incidental to the hearing of the proceedings in the Land Court dealing with the preliminary question, such costs to be assessed on the standard basis.
3. The respondent pay the appellant’s costs of and incidental to the appeal to this Court, such costs to be assessed on the standard basis.
CATCHWORDS:
COSTS - s.34 Land Court Act 2000 - cost of appeal to Land Appeal Court - usual rule that costs follow the event - cost orders made by Court below set aside where no appeal against that decision
Land Court Act 2000
Oshlack v Richmond River Council (1989) 193 CLR 72APPEARANCES:
No appearances. Parties filed written submissions on costs.
On 16 May 2008 the Land Court determined that the appellant did not have an estate or interest in land pursuant to s.12(5) of the Acquisition of Land Act 1967 and, accordingly, that the Land Court had no jurisdiction to hear the appellant's claim for compensation under that Act.[1]The jurisdiction of the Land Court to hear the compensation claim filed by the appellant was dealt with as a preliminary question.
[1][2008] QLC 0091.
Consistent with his decision concerning the preliminary question, on 28 May 2008 the learned Member ordered the appellant to pay the respondent’s costs of and incidental to the hearing.[2]
[2][2008] QLC 0104.
Dissatisfied with the decision concerning the preliminary question the appellant appealed that decision but no appeal was filed against the cost decision of the learned Member.
On 27 November 2008 this Court allowed the appeal and remitted the appellant’s claim for compensation back to that Court for determination.[3] The parties were invited to make submissions about the costs of and incidental to the appeal to this Court. Before this Court, as was the situation below, the appellant was represented by Mr L McGinn a director of the appellant company. Mr McGinn holds no legal qualifications.
[3]LGM Enterprises Pty Ltd v Brisbane City Council [2008] QLAC 0214.
On 10 December 2008 the appellant filed its submissions seeking that the respondent pay its costs in the amount of $28,223. The submissions made on behalf of the appellant in support of this order are that:
(i) The costs claimed are not excessive or extravagant but are reasonable.
(ii) The costs were "disbursements" incurred by the company.
Accompanying the submissions were a number of documents including taxation invoices from Short Punch and Greatorix, solicitors and from Mr Carrigan of counsel.
It is tolerably clear by reference to the documents filed by the appellant that a significant proportion of the costs it is now seeking to recover are not costs associated with the appeal to this Court but with the substantive proceedings in the Court below.
In addition to the appellant filing its material concerning costs it also served them on the respondent. The respondent does not agree to the amount claimed by the appellant. However, notwithstanding that and notwithstanding the fact that the appellant had not appealed the costs decision below, the respondent made the following submissions.
"5. The respondent is not opposed to an order in respect of payment by the respondent of the claimant/appellant's costs of the hearing of the preliminary point before the Land Court and of the hearing of the appeal before the Land Appeal Court in respect of the preliminary point.
6. If the Court in the exercise of its discretion is prepared to accede to the application for costs by the claimant/appellant, then the respondent submits than an appropriate order would be that the respondent pay the claimant/appellant's costs of and incidental to the hearing of the preliminary point in the Land Court, and costs of and incidental to the hearing of the appeal before the Land Appeal Court in respect of the preliminary point, each to be assessed by the appropriate assessing officer of the Supreme Court, as provided for by s.34(5) of the Land Court Act 2000."
Section 34 of the Land Court Act 2000 relevantly provides:
"Costs
(1)Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate.
(2)If the court does not make an order under subsection (1), each party to the proceeding must bear the party’s own costs for the proceeding.
(3) An order made under subsection (1) may be made an order of the Supreme Court and enforced in the Supreme Court."
The award of costs is discretionary but must be exercised judicially in accordance with established principles and factors relevant to the litigation. A significant factor, if not the most significant factor, influencing the exercise of the discretion to award costs is the outcome of the litigation.[4] In the circumstances of this case there is no other Act to the contrary or which limits the operation of the discretion given pursuant to s.34 of the Land Court Act.
[4]Oshlack v Richmond River Council (1998) 193 CLR 72 at 95-98 per McHugh J
As has been effectively conceded by the respondent, that the appellant was not legally represented does not prevent favourable cost orders being made. It is considered appropriate to make a costs order in favour of the appellant concerning the appeal to this Court in accordance with the general rule that costs ordinarily follow the event.
By reference to the submissions made by the respondent it is clear that it does not wish to take the point that the appellant had not appealed the costs decision made by the Court below. The respondent does "not oppose" an order requiring it to pay the appellants costs of and incidental to the hearing of the preliminary question, in the event that this Court considered it appropriate to exercise its discretion in favour of the appellant.
The usual course in circumstances such as this would be that the respondent would have to pay not only the appellants costs of and incidental to the appeal to this Court but also the appellant’s costs of and incidental to the hearing below. Consistent with its written submission the respondent has not sought to place material before this Court supporting a departure from that course of action. In the circumstances of this case and, in particular, the respondent’s attitude to the costs below, it is also considered appropriate to make cost orders in favour of the appellant in respect of those proceedings. We would however observe that but for the attitude of the respondent the appellant would have faced some difficulty in having the cost order of the Court below set aside in the absence of an appeal against that order.
In circumstances where the parties have not been able to agree on the quantum of costs it is appropriate that the costs be assessed. Accordingly, the orders of the Court are:
1. The cost order made by the Land Court on 28 May 2008 is set aside.
2. Instead, it is ordered that the respondent pay the appellant’s costs of and incidental to the hearing of the proceedings in the Land Court dealing with the preliminary question, such costs to be assessed on the standard basis.
3. The respondent pay the appellant’s costs of and incidental to the appeal to this Court, such costs to be assessed on the standard basis.
WHITE J
CAC MACDONALD
PRESIDENT OF THE LAND COURT
RS JONES
MEMBER OF THE LAND COURT
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