Mofo Group Pty Ltd v Brisbane City Council

[2010] QPEC 80

[2010] QPEC 80

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Application No 593 of 2010

MOFO GROUP PTY LTD	Applicant
and
BRISBANE CITY COUNCIL AND OTHERS	Respondents

BRISBANE

..DATE 01/09/2010

ORDER

CATCHWORDS

Uniform Civil Procedure Rules, r 388

"Slip rule" - court's declared intention to award successful (separately represented) respondents' costs from the date they notified the applicant of intention to seek them - likewise indemnity costs - second respondent seeks indemnity costs from an earlier date than the order specified - applicant stated it had no submissions to make

HIS HONOUR:  The court dealt with the underlying originating
application on the 24th of August 2010 and on that day made
costs orders in favour of the four respondents, which were
intended to allow them costs against the applicant from the
time when they had foreshadowed seeking costs and indemnity
costs from the time when they had foreshadowed seeking those.

Subsequently, the second respondent approached the court
seeking that a change be made to the order in its favour
pursuant to the "slip rule", which was presumably intended as
a reference to rule 388 of the UCPR.

The point of the application was to seek indemnity costs for
the second (indeed, also the first) respondent from the 29th
of April 2010 when the fourth respondent filed an application
seeking striking out of the originating application and
indemnity costs for all respondents.

On the 24th of August, the court proceeded on a more refined
basis, which referred to specific communications emanating
from particular respondents.

In the second respondent's case the commencing date for costs
was the 15th of March 2010, being costs on the standard basis, and 16th July 2010 for indemnity costs, that being the date of
filing of an outline of argument or written submissions on
behalf of that party.

Mr MacNaughton's detailed submission seeking recourse to the
slip rule takes the view that the court made an error in
respect of the dates which can be rectified under that rule.

I am unwilling to accept that the error or slip or mistake was
the court's.  Indeed, Mr MacNaughton's latest submission -
which I'll mark Exhibit 1 and also give leave to read and
file - acknowledges that relevant matters "were not
specifically brought to the court's attention during the
hearing."

Mr MacNaughton remained silent when the participants at the
hearing were invited to indicate that anything was wrong about
the details of the order made.

Whether any error or omission, et cetera, was that of the
court or one or more of the parties appears not to matter for
The purposes of rule 388. See Thakral Fidelity Pty Ltd v.
The Commissioner of Stamp Duties (No 2) [2001] 1 QdR 428 at 425 where reference is made to High Court decisions where the slip rule was invoked consequent upon omissions of parties' representatives: L Shaddock & Associates Pty Ltd v. Parramatta City Council (No 2) (1982) 151 CLR 590 at 594 and Gould v. Vaggelas (1985) 157 CLR 215 at 275.

As one would expect, the court was concerned not to afflict the innocent party, which in this confined respect is the
applicant Mofo, with costs incurred in the correction of someone else’s mistake.
My associate communicated as much to the parties in an e-mail
communication sent last Wednesday afternoon after receipt of
Mr MacNaughton's communication, which certainly cannot be
criticised for being slow in coming.

The Brisbane City Council, I'm pleased to say, does not seek
any more favourable treatment for costs than that included in
the original order.  Indeed, it never sought a better outcome
than that.

I'll mark Exhibit 2 a copy of my associate's communication.  It contains responses from other parties.  Exhibit 3 is a letter to my associate from the Council dated 25 August 2010.

What greatly assists the court to reach the view that
Mr MacNaughton's application ought to be acceded to is Exhibit
4 and a letter sent by e-mail last Friday, 27th of August
2010, from Mofo's solicitors which indicates that Mofo has no
further submissions to make in relation to the matter of costs
and, like the others, wishes to avoid having to make any
further appearance.

No party is present in court today.

I take Exhibit 4 as an indication of non-opposition to what
the second respondent now seeks.

The order of the 24th of August will be amended in respect of
provision made for the second respondent's costs to provide
that it applies to costs from 16 March 2010 rather than
15 March 2010 and for indemnity costs after 29 April 2010
rather than 16 July 2010.

The former amendment is made at Mr MacNaughton's application on the basis that his communication dated 15 March 2010 was not in fact sent until the day following.

It hasn't been necessary to consider in any further detail the
fourth respondent's application filed on the 29th of April
2010.  It, although purporting to be made for the benefit of
all respondents as regards costs, hasn't been taken up by all
of them in that respect.  One might speculate that the second respondent was in some way complicit in the filing of that application and, indeed, the court was expecting that such an application might come from Mr MacNaughton rather than Mr Crane.

The former has made no submissions and presented no evidence
relevant to such speculation and there's really to need to
engage in it.

Exhibit 5 is a copy of the associate’s email sent this morning alerting the parties to the court’s intention to act as indicated above.

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