Maroochy Shire Council v Maroochydore Central Holdings Pty Ltd

[2003] QLAC 36

LAND APPEAL COURT OF QUEENSLAND

CITATION:	Maroochy Shire Council v Maroochydore Central Holdings Pty Ltd  [2003] QLAC 36
PARTIES:	Maroochy Shire Council (appellant)
v.
Maroochydore Central Holdings Pty Ltd (respondent)
FILE NO:	LAC2002/0833
DIVISION:	Land Appeal Court of Queensland
PROCEEDING:	Judgment on Costs
ORIGINATING COURT:	Land Court of Queensland
DELIVERED ON:	27 May 2003
DELIVERED AT:	Brisbane
HEARD BY:	Written submissions
JUDGE MEMBERS	Justice Mullins Mr JJ Trickett Mr RP Scott
ORDER:	No order as to costs of the appeal
CATCHWORDS:	Procedure - Costs - Where appellant successful in obtaining outcome sought on appeal of setting aside declaration made by Land Court but not for the reasons advanced by the appellant - Where the issue of whether the declaration should be made was remitted for hearing before Land Court and remains unresolved - The declaration was sought in the first instance as a result of the conduct of the appellant - The declaration had been made by the Land Court as a result of the arguments put forward by the respondent - Pursuant to s 34 Land Court Act 2000 (Q) the Land Appeal Court has unfettered discretion in relation to costs - No order as to the costs of the appeal.
REPRESENTATION:	Andrew NS Skoien, of Counsel, for the appellant Lestar Manning, Solicitor, for the respondent

1. On 9 April 2003 the Land Appeal Court published the reasons for judgment (“the reasons”) for allowing the appellant’s appeal in respect of the declaration made by the learned Member, Mrs C A C MacDonald, on 25 September 2002.  The citation of the reasons is Maroochy Shire Council v Maroochydore Central Holdings Pty Ltd [2003] QLAC 0024.

2. In para [59] of the reasons, the court indicated that it was not disposed to make any order for costs in respect of the appeal, but that indication was subject to hearing submissions from the parties on the question of costs.

3. The appellant’s submissions on costs were filed on 17 April 2003.  The respondent’s submissions were filed on 12 May 2003.

4. The appellant submits that by virtue of r 4 of the Land Court Rules 2000, r 689 of the Uniform Civil Procedure Rules provides for the general rule which should apply to the costs of the appeal.  That is stated as the costs ought to follow the event.  The appellant therefore submits that as the appeal was successful and the declaration made by the learned Member at first instance set aside, this general rule with regard to costs should be followed and an order made in the appellant’s favour.

5. Reference is also made by the appellant to the concerns which it raised at the commencement of the hearing in the Land Court which it submits are reflected in, and confirmed by, paras [54] to [58] of the reasons, and that, despite those concerns, the respondent proceeded with its application for the declaration which has now been set aside.

6. The respondent relies on the observations made by the court at para [59] of the reasons and submits that as a consequence of the misconception of the appellant about the effect of s 17 and s 41 of the Acquisition of Land Act 1967 (“the Act”) that the parties incurred further costs in respect of the appeal and the proceeding for the declaration remains unresolved.

7. The respondent also submits that the decision of the Land Court necessitated that the respondent appear to defend its position before this court and that the respondent has acted reasonably, having regard to the fact that it is the dispossessed owner of the subject land.

8. The respondent therefore seeks its costs of the appeal and submits that the appellant is not entitled to its costs.

9. The court has an unfettered discretion in relation to costs of the appeal by virtue of s 34 of the Land Court Act 2000. In those circumstances it is neither necessary nor appropriate to seek to resort to any rule under the Uniform Civil Procedure Rules for determining the approach the court should take on the question of the costs of the appeal.

10. The appellant can be described as technically successful in obtaining the outcome of the appeal sought by the appellant, but it was not for the reasons primarily advanced by the appellant. The appeal was brought as a consequence of the declaration made in a proceeding necessitated by the misguided approach of the appellant to s 17 and s 41 of the Act. These circumstances do not support an order for costs in favour of the appellant.

11. The declaration which has been set aside on the appeal was made by the learned Member at the request of the respondent and as a result of the acceptance by the learned Member of the arguments put forward by the respondent.  It was those arguments of the respondent which resulted in the form of the declaration made by the learned Member which the respondent was defending on the appeal.  In the circumstances, there should be no order for costs of the appeal in favour of the respondent.

12. The appropriate order for the costs of the appeal is that there be no order as to the costs of the appeal.

13. In the written submissions filed on 17 April 2003 the appellant also sought an order that the costs order made by the learned Member on 6 February 2003 be set aside.  After the learned Member published reasons for making the declaration on 25 September 2002, the respondent applied for an order for the costs of the application for the declaration.  That application was determined on 6 February 2003 when the learned Member ordered that the appellant pay the costs of the respondent of the application for the declaration filed on 22 March 2002.

14. The only submissions which the court sought on 9 April 2003 was in respect of the costs of the appeal.  There was no notice of appeal before this court in respect of the order made for costs by the learned Member on 6 February 2003.  No submissions were made by the appellant or the respondent on the question of the jurisdiction of this court to entertain an appeal against the costs order made by the learned Member in circumstances where the substantive order made by the learned Member was set aside on the appeal, but there was no formal appeal against the costs order.

15. The appellant’s written submissions proceeded on the assumption that there was such jurisdiction.  The respondent’s written submissions were confined to the question of the costs of the appeal.  It is therefore not appropriate to determine the question of jurisdiction in the absence of submissions on that issue.

16. Even if this court had the power to consider whether the costs order made by the learned Member on 6 February 2003 should remain, the arguments advanced by the appellant for setting aside that order are unconvincing.

17. Although the declaration made by the learned Member has been set aside by the court, this court has confirmed the learned Member’s rejection of the appellant’s construction of s 17 of the Act. The application for the declaration was properly brought by the respondent in the light of the unsatisfactory situation brought about by the failure of the appellant to appreciate the distinction between a discontinuance under s 17 of the Act and a disposal under s 41 of the Act which was reflected in the appellant’s proposals to the respondent prior to the application for the declaration being brought.

18. No order will be made on this appeal in relation to the costs order made by the learned Member on 6 February 2003.

Mullins J

JUSTICE OF THE SUPREME COURT

JJ Trickett

PRESIDENT OF THE LAND COURT

RP Scott

MEMBER OF THE LAND COURT