Mentech Resources Pty Ltd v MCG Resources Pty Ltd (in liq) & Ors (No 2)

[2012] QLAC 2

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors (No 2) [2012] QLAC 002

PARTIES:

Mentech Resources Pty Ltd
(Appellant)

v

MCG Resources Pty Ltd (in liquidation)
(First Respondent)

and

Terence Burt, Judy-Anne Galway and Robert William Kirkby
(Second Respondents)

FILE NO:

LAC006-2011

DIVISION:

General Division

PROCEEDING:

Costs of Appeal to Land Appeal Court

ORIGINATING COURT:

Land Court

DELIVERED ON:

6 March 2012

DELIVERED AT:

Rockhampton

HEARING DATE:

16 December 2011

THE COURT:

D McMeekin J 

CAC MacDonald, President of the Land Court

PA Smith, Member of the Land Court

ORDERS:

1.   The appellant pay the first respondent’s costs of the appeal including any reserved costs on the standard basis, such costs to be agreed or, failing agreement, to be assessed by a cost assessor of the Supreme Court.

2. Pursuant to s 34(3) of the Land Court Act 2000 this order may be made an order of the Supreme Court and enforced in the Supreme Court. 

CATCHWORDS:

Costs - unfettered discretion - costs awarded to the successful party - application of the principle that costs follow the event - ss.34 and 72 - Land Court Act 2000.

COUNSEL:

Mr TS Hale SC with Mr H Trotter for the appellant

Mr MD Martin for the first respondent

SOLICITORS:

Macdonald & Michel Lawyers for the appellant

Clarke Kann Lawyers for the first respondent

1. The Court:  Judgment in this matter was handed down on 10 February 2012. The appeal was dismissed. The parties were directed to make such submissions as to costs as they were advised. They have done so. The first respondent seeks costs to be paid by the appellant, the first respondent having been successful on the appeal. Neither the appellant nor the second respondents have made submissions.

1. Section 34 of the Land Court Act 2000 (Qld) (“the Act”) provides:

“34 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.

(4) For subsection (3), it is enough to file the order in the Supreme Court.

(5) The court may, if it considers it appropriate, order the costs to be decided by the appropriate assessing officer of the Supreme Court.

(6)If the court makes an order under subsection (5), the assessing officer may decide the appropriate scale to be used in assessing the costs.”

1. Section 72(1) of the Act provides that s34, amongst other provisions, applies “with necessary changes” to the Land Appeal Court and a “reference in the applied sections to the Land Court is taken to be a reference to the Land Appeal Court”.

1. Hence the Land Appeal Court may order costs “as it considers appropriate”. The discretion to award costs is unfettered. However the rule often followed, and the rule incorporated in r 689 of the Uniform Civil Procedure Rules 1999, is that costs follow the event.[1] That rule, while it does not govern the exercise of the discretion here, nonetheless informs it, as there is justice in that approach. It protects those put to unnecessary and substantial expense at the behest of others.[2] There is no reason here why costs should not follow the event in the usual way.

   [1]Barns v Director General, Department of Transport (1997) 18 QLCR 133 at 135.

   [2]PT Limited v Department of Natural Resources & Mines (2007) 28 QLCR 295 at [25].

1. The first respondent seeks that the order be made an order of the Supreme Court pursuant to s 34(3) of the Land Court Act. Presumably that will facilitate enforcement of the order made here. That is appropriate.

1. The orders will be:

1.   The appellant pay the first respondent’s costs of the appeal including any reserved costs on the standard basis, such costs to be agreed or, failing agreement, to be assessed by a cost assessor of the Supreme Court.

2. Pursuant to s34(3) of the Land Court Act 2000 this order may be made an order of the Supreme Court and enforced in the Supreme Court.

D McMEEKIN J

CAC MacDONALD
PRESIDENT OF THE LAND COURT

PA SMITH
MEMBER OF THE LAND COURT