Lockyer Valley Regional Council v Zaczane Holdings Pty Ltd (No 2)

[2015] QPEC 20

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Lockyer Valley Regional Council v Zaczane Holdings Pty Ltd & Anor (No 2) [2015] QPEC 20

PARTIES:

LOCKYER VALLEY REGIONAL COUNCIL

(Applicant)

v

ZACZANE HOLDINGS PTY LTD
(ACN 100 464 631)

(First Respondent)

and

KHALED HAMMOUD

(Second Respondent)

FILE NO/S:

BB4044/14

DIVISION:

Planning and Environment

PROCEEDING:

Application for further orders as to costs

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

15 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Searles DCJ

ORDER:

1. The First and Second Respondents pay the Applicant’s costs on the standard basis for the stay application filed 22 January 2015 and dismissed 16 April 2015.

2. The First and Second Respondents pay the Applicant’s costs on the standard basis for the costs application relating to the application filed 22 January 2015 and dismissed 16 April 2015.

CATCHWORDS:

PROCEDURE – COSTS – Where the Respondents’ stay application was dismissed – Whether general rule as to costs is that under the Integrated Planning Act 1997 (Qld) or the Sustainable Planning Act 2009 (Qld) - Where the Applicant’s originating application was amended after Respondent filed stay application – Where Respondents argue this shows the Applicant was not entirely successful in resisting stay application – Whether discretion should be exercised to depart from the general rule.

COUNSEL:

Mr D O’Brien QC for the Applicant

Mr P van Eps of Counsel for the First and Second Respondents

SOLICITORS:

Corrs Chambers Westgarth for the Applicant

Aden Lawyers Pty Ltd for the First and Second Respondents

1. This judgment concerns the costs on the principal judgment delivered on 16 April 2015. In the principal judgment, I dismissed the Respondent’s application for a stay of the above proceedings (Stay Application).[1] At the time of delivery of that judgment, I made an order that the Respondents pay the Applicant’s costs of and incidental to the Stay Application on a standard basis, subject to the Respondents filing submissions within seven days seeking an alternative costs order.

   [1]Lockyer Valley Regional Council v Zaczane Holdings Pty Ltd & Anor [2015] QPEC 15.

1. The Respondents did file submissions on 23 April 2015 and the Applicant responded with written submissions on 30 April.

1. The Respondents argue that the parties should bear their own costs of the Stay Application. Alternatively, they say Council should recover only two thirds of its costs given it was not entirely successful, or alternatively, that Council be restricted to costs incurred after 5 February 2015 and offset by the Respondents’ costs incurred prior to 5 February 2015.

1. The application for the stay was filed by the Respondents on 23 January 2015. 12 days later, on 5 February 2015, the Applicant amended its originating application in the proceedings, dropping any claimed relief in relation to conditions relating to permanent residency and the condition in DA5525 concerning the allegation that the property was being operated without a permit in the 2012 – 2013 periods. In essence, the Respondents say that the Applicant has not been entirely successful in the Stay Application because they abandoned those issues.

1. The above proceedings which the Applicants brought were for declarations pursuant to s 4.1.21 of the Intergrated Planning Act 1997 (Qld) (IPA), or in the alternative        s 456 of the Sustainable Planning Act 2009 (Qld) (SPA). Section 457(9) of the latter Act provides that the costs of the proceeding mentioned in s 601 are in the discretion of the Court, but should follow the event unless the Court otherwise orders. The Council’s proceedings are enforcement proceedings under s 601 of SPA. They were commenced on 16 October 2014, subsequent to the commencement of the operation of s 457 of SPA. Accordingly, s 457(9) applies, notwithstanding the reliance on IPA as well.

1. The only discretionary matter the Respondents raised which would be relevant to s 457(9) of SPA is the reference that the Applicant Counsel agreed not to pursue the above mentioned issues.[2] That, as I have said, was notified to the Respondents on 5 February - 18 days before the hearing on 23 February 2015. But, as the principal judgment reveals, those concessions did not materially impact on the principal judgment. I am not satisfied that the Respondents have raised any matter which would found the exercise of my discretion under s 457(9) of SPA to order costs other than on the basis that they follow the event.

   [2]Judgment at [4].

1. The costs order I made on 23 February 2015 will stand - the Respondents are ordered to pay the Applicant’s costs for the hearing of the stay application on a standard basis. I also order the Respondents to pay the Applicant’s costs relating to the present costs application the subject of this judgment, again, on a standard basis.