MCG Resources Pty Ltd (In Liquidation) v Greywolf Resources Nl - [2012] QLC 21

LAND COURT OF QUEENSLAND

CITATION:MCG Resources Pty Ltd (In Liquidation) v Greywolf Resources NL [2012] QLC 0021
PARTIES:MCG Resources Pty Ltd
ACN 129 717 531
(In Liquidation)

(Applicant)

v.

Greywolf Resources NL
ACN 139 304 911
(Respondent)

FILE NO:MRA171-12
DIVISION:General Division
PROCEEDING:  Application for costs
DELIVERED ON:                  23 May 2012
DELIVERED AT:                   Brisbane
HEARD ON:  By written submissions filed on 8 May 2012
HEARD AT:Brisbane
MEMBER:Mr WA Isdale

ORDER/S:1. That the respondent pay the costs of and incidental to the originating and general applications to the applicant on an indemnity basis.
2.This order, in accordance with s.34(3) of the Land Court Act 2000, is made an order of the Supreme Court and may be enforced in the Supreme Court.

3.The Court orders that the costs are to be assessed by the appropriate assessing officer of the Supreme Court of Queensland (being a person who is a “costs assessor” as that term is defined in Rule 679 of the Uniform Civil Procedure Rules) on the indemnity basis using the Supreme Court scale of costs current at the date of this order.

CATCHWORDS: COSTS – STANDARD OR INDEMNITY BASIS

Land Court Act 2000
Land Court Rules 2000, Rule 34
Anderson v AON Risk Services Australia Limited & Anor [2004] QSC 180
Colgate-Palmolive Co & Anor v Cussons Pty Ltd (1993) 46 FCR 225
Di Carlo v Dubois & Ors [2002] QCA 225
Fick v Groves (No. 2) [2010] QSC 182
Keswick Developments Pty Ltd v Keswick Island Pty Ltd & Ors [2009] QSC 59
Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors [2012] QLAC 001
Mentech Resources Pty Ltd v MCG Resources Pty Ltd & Ors [2011] QLAC 0008
Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liquidation) & Ors [2011] QLC 0059
Thiess Pty Ltd v FLSMIDTH Minerals Pty Ltd(No. 2) [2010] QSC 120
Todrell Pty Ltd v Finch (No. 2) [2008] 2 Qd R 95

APPEARANCES: Mr MD Martin, instructed by ClarkeKann Lawyers for the applicant
Mr P Nagle, solicitor, for the respondent

Background and the applications

The applicant filed an originating application in this Court on 5 April 2012 seeking, inter alia, that caveat no. 1040010 lodged by the respondent on 12 February 2012 be removed. The caveat prevented any dealings with Exploration Permit for Coal (EPC) 1044. That permit had been the subject of litigation in this Court and in the Land Appeal Court.[1] In the application, the applicant sought an order that the respondent pay its costs on an indemnity basis. On the same day it filed a general application in the same matter, and seeking the same orders, the general application being returnable on 18 April 2012.

[1] Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors [2012] QLAC 001, in the Land Appeal Court.

Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liquidation) & Ors [2011] QLC 0059, in the Land Court.

The Court…

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: [2012] QLC 21
Decision Date: 23 May 2012

CaseChat Overview and Summary

In the matter of MCG Resources Pty Ltd (In Liquidation) v Greywolf Resources NL, the applicant sought an order that the respondent pay the costs of and incidental to the originating and general applications on an indemnity basis. The respondent lodged a caveat over Exploration Permit for Coal (EPC) 1044, which prevented any dealings with the permit. The applicant argued that the caveat was without merit and was lodged in wilful disregard of known facts. The respondent did not file the material it proposed to rely on by the Court's order and did not inform the applicant of the intention to withdraw the caveat until it did so in Court. The Court found that the respondent's conduct was unreasonable and irresponsible and that an order for indemnity costs was justified. The Court ordered that the respondent pay the costs of and incidental to the originating and general applications to the applicant on an indemnity basis, and that the costs be assessed by the appropriate assessing officer of the Supreme Court of Queensland on the indemnity basis using the Supreme Court scale of costs current at the date of this order.

The Court considered the principles governing an award of indemnity costs, including that the circumstances which may be considered to warrant the exercise of the discretion to award costs on an indemnity basis include the fact that proceedings were commenced or continued in wilful disregard of known facts, the making of allegations which ought never to have been made, the undue prolongation of a case by groundless contentions, evidence of particular misconduct that causes loss of time to the court and to other parties, and any imprudent refusal of an offer to compromise. The Court found that the respondent's conduct fell within these principles and that it was unreasonable and irresponsible for the caveat to be lodged. The respondent did not comply with the Court's order to file its material and did not inform the applicant of the intention to withdraw the caveat until it did so in Court. The applicant had a sound basis to be represented by Counsel on 2 May 2012 as it had no knowledge until then that the caveat was proposed to be withdrawn. The Court did not accept Mr Nagle's submission that the lawyers who appeared for the applicant should be put to proof that they held proper instructions to do so. Taking into account all of the circumstances in this case, the Court was satisfied that an order for indemnity costs was justified.

Orders