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Mudie v Gainriver Pty Ltd (No 2)

Mudie v Gainriver Pty Ltd (No 2)

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Case Copied 13 December 2002 45 min read

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SUPREME COURT OF QUEENSLAND

CITATION:

Mudie v Gainriver P/L & Anor [2002] QCA 546

PARTIES:

KAREN GAYE MUDIE
(applicant/appellant)
v
GAINRIVER PTY LTD ACN 010 965 929
(first respondent/first respondent)
GATTON SHIRE COUNCIL
(second respondent/second respondent)

FILE NO/S:

Appeal No 1300 of 2002
P & E No 1387 of 1997

DIVISION:

Court of Appeal

PROCEEDING:

Planning and Environment Appeal

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

13 December 2002

DELIVERED AT:

Brisbane

HEARING DATE:

12 September 2002

JUDGES:

McMurdo P, Williams JA and Atkinson J
Joint reasons for judgment of McMurdo P and Atkinson J, separate reasons of Williams JA, concurring as to the orders made

ORDERS:

1.Appeal allowed.

2.Set aside the order of the Planning and Environment Court of 31 January 2002.
3.Order that the respondents Gainriver Pty Ltd and Gatton Shire Council pay to the appellant the costs of proceedings No 1387 of 1997 in the Planning & Environment Court other than costs dealt with by the order of 17 March 1998, but including all costs reserved and in particular costs reserved by the order of 19 September 1997 to be assessed according to the scale of costs prescribed by law for the time being in respect of proceedings in the District Court for claims in excess of $50,000.

4.Order that the respondents pay the appellant’s costs of and incidental to the application for costs in the Planning & Environment Court to be assessed on the aforesaid scale and of and incidental to the appeal to be assessed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – OTHER MATTERS – COSTS

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF PARTIES – MISCONDUCT ETC – IN PROCEEDINGS – VEXATIOUS PROCESS AND ISSUES - where order dismissing appellant’s application for costs under s 7.6(1A)(a) Local Government (P&E) Act 1990 (Qld) – where long history of litigation concerning road constructed by the first respondent developer and approved by the second respondent council adjacent to the appellant’s property – where declarations sought by the appellant that the first respondent had committed offences under the Local Government (P&E) Act 1990 (Qld) and that the road be removed – where first and second respondent resisted declarations – where appellant largely successful – whether conduct of the first and second respondents was frivolous or vexatious – whether primary judge erred in dismissing application for costs

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where costs order made regarding six day hearing in Planning & Environment Court – where order should not be interfered with – where appellant entitled to costs of remaining appearances in proceedings

Integrated Planning Act 1997 (Qld), s 6.1.39
Local Government (Planning & Environment) Act 1990 (Qld), s 7.4(3), s 7.6(1A)(a)

Begley v Pine Rivers Shire Council & Ors [1995] QPLR 228, considered
Hudson Surveys Pty Ltd v Council of the City of Hervey Bay [1992] QPLR 160, referred to
Oceanic…

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: [2002] QCA 546
Decision Date: 13 December 2002

CaseChat Overview and Summary

The case of Mudie v Gainriver Pty Ltd (No 2) involved the appellant, Mudie, appealing against a decision of the Planning and Environment Court of Queensland, which had dismissed their application for costs under section 7.6(1A)(a) of the Local Government (Planning and Environment) Act 1990 (Qld). The underlying dispute was a long-standing legal battle between Mudie and the respondents, Gainriver Pty Ltd and Gatton Shire Council, concerning a road constructed by Gainriver adjacent to Mudie's property. Mudie sought declarations that Gainriver had committed offences under the Local Government (Planning and Environment) Act 1990 (Qld) and that the road be removed. The respondents resisted these claims, leading to a protracted litigation history. Despite Mudie's partial success, the primary judge dismissed their application for costs, finding that the conduct of the respondents was not frivolous or vexatious enough to warrant such an order.

The legal issue before the court was whether the primary judge erred in dismissing Mudie's application for costs. The court considered whether the conduct of Gainriver and the Gatton Shire Council was vexatious or frivolous, which would have justified an order for costs under the relevant statutory provisions. The court examined the extensive history of litigation and the nature of the disputes between the parties. The respondents' resistance to Mudie's claims, despite the clear success of the appellant in some respects, was scrutinized to determine if it warranted a costs order. The court held that the primary judge's assessment of the conduct of the respondents was incorrect, and that their actions did indeed amount to vexatious or frivolous behaviour.

The court found that the primary judge had erred in dismissing the application for costs. The appellate court allowed the appeal, set aside the order of the Planning and Environment Court, and ordered that Gainriver Pty Ltd and Gatton Shire Council pay Mudie the costs of the proceedings, excluding those costs already dealt with in a prior order. The court further directed that these costs be assessed according to the scale prescribed by law for proceedings in the District Court for claims exceeding $50,000. Additionally, the respondents were ordered to pay Mudie's costs of and incidental to the application for costs in the Planning and Environment Court, as well as the costs of the appeal, to be assessed on the same scale. This decision underscores the importance of considering the overall conduct of parties in litigation and the potential for costs orders to address vexatious or frivolous behaviour.

Orders

Orders of the court

1.Appeal allowed.

2.Set aside the order of the Planning and Environment Court of 31 January 2002.

3.Order that the respondents Gainriver Pty Ltd and Gatton Shire Council pay to the appellant the costs of proceedings No 1387 of 1997 in the Planning & Environment Court other than costs dealt with by the order of 17 March 1998, but including all costs reserved and in particular costs reserved by the order of 19 September 1997 to be assessed according to the scale of costs prescribed by law for the time being in respect of proceedings in the District Court for claims in excess of $50,000.

4.Order that the respondents pay the appellant’s costs of and incidental to the application for costs in the Planning & Environment Court to be assessed on the aforesaid scale and of and incidental to the appeal to be assessed.

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:	Mudie v Gainriver P/L & Anor [2002] QCA 546
PARTIES:	KAREN GAYE MUDIE (applicant/appellant) v GAINRIVER PTY LTD ACN 010 965 929 (first respondent/first respondent) GATTON SHIRE COUNCIL (second respondent/second respondent)
FILE NO/S:	Appeal No 1300 of 2002 P & E No 1387 of 1997
DIVISION:	Court of Appeal
PROCEEDING:	Planning and Environment Appeal
ORIGINATING COURT:	Planning and Environment Court at Brisbane
DELIVERED ON:	13 December 2002
DELIVERED AT:	Brisbane
HEARING DATE:	12 September 2002
JUDGES:	McMurdo P, Williams JA and Atkinson J Joint reasons for judgment of McMurdo P and Atkinson J, separate reasons of Williams JA, concurring as to the orders made
ORDERS:	1.Appeal allowed. 2.Set aside the order of the Planning and Environment Court of 31 January 2002. 3.Order that the respondents Gainriver Pty Ltd and Gatton Shire Council pay to the appellant the costs of proceedings No 1387 of 1997 in the Planning & Environment Court other than costs dealt with by the order of 17 March 1998, but including all costs reserved and in particular costs reserved by the order of 19 September 1997 to be assessed according to the scale of costs prescribed by law for the time being in respect of proceedings in the District Court for claims in excess of $50,000. 4.Order that the respondents pay the appellant’s costs of and incidental to the application for costs in the Planning & Environment Court to be assessed on the aforesaid scale and of and incidental to the appeal to be assessed.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – OTHER MATTERS – COSTS PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF PARTIES – MISCONDUCT ETC – IN PROCEEDINGS – VEXATIOUS PROCESS AND ISSUES - where order dismissing appellant’s application for costs under s 7.6(1A)(a) Local Government (P&E) Act 1990 (Qld) – where long history of litigation concerning road constructed by the first respondent developer and approved by the second respondent council adjacent to the appellant’s property – where declarations sought by the appellant that the first respondent had committed offences under the Local Government (P&E) Act 1990 (Qld) and that the road be removed – where first and second respondent resisted declarations – where appellant largely successful – whether conduct of the first and second respondents was frivolous or vexatious – whether primary judge erred in dismissing application for costs APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where costs order made regarding six day hearing in Planning & Environment Court – where order should not be interfered with – where appellant entitled to costs of remaining appearances in proceedings Integrated Planning Act 1997 (Qld), s 6.1.39 Local Government (Planning & Environment) Act 1990 (Qld), s 7.4(3), s 7.6(1A)(a) Begley v Pine Rivers Shire Council & Ors [1995] QPLR 228, considered Hudson Surveys Pty Ltd v Council of the City of Hervey Bay [1992] QPLR 160, referred to Oceanic…