Lonergan & Anor v Friese (No 2) - [2020] QLAC 4

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Lonergan & Anor v Friese (No 2) [2020] QLAC 4

Patrick Joseph Lonergan & Prue Madeline Lonergan
(appellants)

v

Murray John Friese

(respondent)

FILE NOs:

LAC007-19
Land Court No MRA219-18

DIVISION:

Land Appeal Court of Queensland

PROCEEDING:

Application for costs

ORIGINATING COURT:

Land Court of Queensland

DELIVERED ON:

10 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

Submissions closed 28 May 2020

THE COURT:

Crow J
FY Kingham, President of the Land Court
WA Isdale, Member of the Land Court

ORDERS:

1. The appellants must pay the respondent’s costs of and incidental to the appeal assessed on an indemnity basis.

2. The parties are to bear their own costs of the hearing at first instance.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appeal was dismissed by the Land Appeal Court – where the respondent sought indemnity costs for the appeal on the basis that the appellant’s grounds of appeal were unreasonable –– where the appellant submitted that at least half of the appeal was taken up with the respondent’s application – where the Court found that the appellant acted unreasonably by advancing an exaggerated claim for compensation both at first instance and on appeal – where the Court ordered that the appellant pay the respondent’s costs on the indemnity basis

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellant sought standard costs of the hearing at first instance – where the respondent also sought costs of the hearing at first instance on standard basis on the grounds that the respondent was successful, given the disparity between the appellants claim and the compensation awarded – where the Court found that neither party were successful – where the Court held that each party should bear their own cost of the hearing at first instance

Land Court Act 2000 s 34, s 36, s 37, s 57A,
Land Court Rules 2000 r 4
Mineral Resources Act 1989 (as at 21 August 2017) s 279, s 279A, s 281
Mineral Resources Act 1989 s 282(5), s 282A(6)

AAI Limited v Caffrey [2020] QCA 116, applied
Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586, cited
ERO Georgetown Gold Operations Pty Ltd v Henry (No 2) (2016) 37 QLCR 186; [2016] QLAC 3, considered
Friese v Lonergan & Anor [2019] QLC 27, considered
Kendell v Kendell & Ors [2005] QCA 390, applied
Lonergan & Anor v Friese [2020] QLAC 3, considered
Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) (No. 2) (2012) 33 QLCR 43; [2012] QLAC 2, considered
Mio Art Pty Ltd v Brisbane City Council (No 3); Greener Investments Pty Ltd (In Liquidation) v Brisbane City Council (No 3) (2013) 34 QLCR 222; [2013] QLAC 3, considered
Mio Art Pty Ltd & Ors v Brisbane City Council [2010] QLC 86, considered

APPEARANCES:

SW…

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: [2020] QLAC 4
Decision Date: 10 June 2020

CaseChat Overview and Summary

In the case of Lonergan & Anor v Friese (No 2), the respondents sought indemnity costs for the appeal, arguing that the appellants' grounds of appeal were unreasonable. The appellants contended that a significant portion of the appeal was consumed by the respondent's application. The court found that the appellants acted unreasonably by advancing an exaggerated claim for compensation both at first instance and on appeal. Consequently, the court ordered that the appellants pay the respondent's costs on an indemnity basis.

The primary legal issue before the court was whether the appellants acted unreasonably by advancing an exaggerated claim for compensation. The court needed to determine if the appellants' grounds of appeal were reasonable and if the respondents were entitled to indemnity costs for the appeal. The court also needed to decide if either party was successful in the first instance hearing and if so, who should bear the costs.

The court found that the appellants acted unreasonably by advancing an exaggerated claim for compensation both at first instance and on appeal. The court noted that the appellants' claim was significantly higher than the compensation awarded, and the appellants did not provide sufficient evidence to support their claim. The court also found that neither party was successful in the first instance hearing, and therefore, each party should bear their own costs of the hearing at first instance.

The court ordered that the appellants pay the respondents' costs of and incidental to the appeal assessed on an indemnity basis. The court also ordered that the parties bear their own costs of the hearing at first instance.

Orders

Orders of the court

1. The appellants must pay the respondent’s costs of and incidental to the appeal assessed on an indemnity basis.

2. The parties are to bear their own costs of the hearing at first instance.

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:	Lonergan & Anor v Friese (No 2) [2020] QLAC 4
Patrick Joseph Lonergan & Prue Madeline Lonergan (appellants) v Murray John Friese (respondent)
FILE NOs:	LAC007-19 Land Court No MRA219-18
DIVISION:	Land Appeal Court of Queensland
PROCEEDING:	Application for costs
ORIGINATING COURT:	Land Court of Queensland
DELIVERED ON:	10 June 2020
DELIVERED AT:	Brisbane
HEARING DATE:	Submissions closed 28 May 2020
THE COURT:	Crow J FY Kingham, President of the Land Court WA Isdale, Member of the Land Court
ORDERS:	1. The appellants must pay the respondent’s costs of and incidental to the appeal assessed on an indemnity basis. 2. The parties are to bear their own costs of the hearing at first instance.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appeal was dismissed by the Land Appeal Court – where the respondent sought indemnity costs for the appeal on the basis that the appellant’s grounds of appeal were unreasonable –– where the appellant submitted that at least half of the appeal was taken up with the respondent’s application – where the Court found that the appellant acted unreasonably by advancing an exaggerated claim for compensation both at first instance and on appeal – where the Court ordered that the appellant pay the respondent’s costs on the indemnity basis APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellant sought standard costs of the hearing at first instance – where the respondent also sought costs of the hearing at first instance on standard basis on the grounds that the respondent was successful, given the disparity between the appellants claim and the compensation awarded – where the Court found that neither party were successful – where the Court held that each party should bear their own cost of the hearing at first instance Land Court Act 2000 s 34, s 36, s 37, s 57A, Land Court Rules 2000 r 4 Mineral Resources Act 1989 (as at 21 August 2017) s 279, s 279A, s 281 Mineral Resources Act 1989 s 282(5), s 282A(6) AAI Limited v Caffrey [2020] QCA 116, applied Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586, cited ERO Georgetown Gold Operations Pty Ltd v Henry (No 2) (2016) 37 QLCR 186; [2016] QLAC 3, considered Friese v Lonergan & Anor [2019] QLC 27, considered Kendell v Kendell & Ors [2005] QCA 390, applied Lonergan & Anor v Friese [2020] QLAC 3, considered Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) (No. 2) (2012) 33 QLCR 43; [2012] QLAC 2, considered Mio Art Pty Ltd v Brisbane City Council (No 3); Greener Investments Pty Ltd (In Liquidation) v Brisbane City Council (No 3) (2013) 34 QLCR 222; [2013] QLAC 3, considered Mio Art Pty Ltd & Ors v Brisbane City Council [2010] QLC 86, considered
APPEARANCES:	SW…