Nickmere Pty Ltd v Dianne Mining Corporation Pty Ltd

[2012] QLC 36

LAND COURT OF QUEENSLAND

CITATION:

Nickmere Pty Ltd v Dianne Mining Corporation Pty Ltd [2012] QLC 0036

PARTIES:

Nickmere Pty Ltd
ACN 061 662 271
(Applicant)

v.

Dianne Mining Corporation Pty Ltd
ACN 095 326 079
(Respondent)

FILE NO:

MRA226-11

DIVISION:

Land Court of Queensland

PROCEEDINGS:

Hearing of Application for Costs

DELIVERED ON:

27 July 2012

DELIVERED AT:

Brisbane

HEARD AT:

Brisbane

MEMBER:

WL Cochrane

ORDERS:

1.     The applicant pay the respondent’s costs of and incidental to the proceeding as agreed or, failing agreement, to be assessed on the standard basis applying the Supreme Court scale of costs under the Uniform Civil Procedure Rules.

2.   The respondent’s costs be decided by the appropriate assessing officer of 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 standard basis using the Supreme Court scale of costs current at the date of this order.

CATCHWORDS:

Costs – Land Court – Costs of application – Discretion in Court to award costs – Whether costs follow the event – Relevant circumstances

Land Court Act 2000, s.34
Uniform Civil Procedure Rules 1999

Anson Holdings Pty Ltd v Wallace & Anor [2010] QLAC 004
Calcifer Industrial Minerals Pty Ltd v Daraleigh Pty Ltd as Trustee for the DC & ML Dillon Trust [2010] QLC 0095
Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors [2010] QLC 0122
Seachange GC Pty Ltd v Chief Executive Officer, Gold Coast City Council [2010] QLC 0113

COUNSEL:

APPEARANCES:

Mr D deJersey of Counsel for the applicant
Mr A Lyons of Counsel for the respondent

MacDonells Law, solicitors for the applicant
Preston Law, solicitors for the respondent

Background

1. This is an application for costs brought by a party who successfully responded to an application by the applicant to file a further caveat or, in the alternative, seeking declarations that a caveat which had previously been lodged was of full force and effect. The applicant failed for a variety of reasons and the respondent, unsurprisingly, has applied for an order for costs in its favour.

2. The power to award costs is given to this Court by virtue of s.34 of the Land Court Act 2000.

3. I gave directions for the delivery of submissions with respect to the issue of costs and the respondent, by correspondence dated 21 February 2012, made such submissions. Those submissions were accompanied by an affidavit sworn by one Peter Zhang on or about 21 February 2012.

4. The affidavit deposed to the value of the mining leases as being approximately $3,500,000 and referred also to offers which the respondent says it had received to sell the mining leases, the subject of the caveats. Those contracts, it is said, did not eventuate as a consequence of the caveats lodged by the applicant which it sought to reinforce or validate in the failed application. However, it seems from the material that no applications seeking to set aside the caveats at an earlier time had been made by the respondent so as to facilitate those prospective sales.

5. No objection was received from the applicant to the granting of leave to file and read the affidavit of Zhang.

6. In its submissions the respondent usefully referred to the number of decisions and the Land Appeal Court, including Calcifer Industrial Minerals Pty Ltd,[1] Cherwell Creek Coal Pty Ltd[2] and Seachange GC Pty Ltd v Chief Executive Officer, Gold Coast City Council.[3]

   [1]     Calcifer Industrial Minerals Pty Ltd v Daraleigh Pty Ltd as Trustee for the DC & ML Dillon Trust [2010] QLC 0095.

   [2]     Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors [2010] QLC 0122 and the reference to Anson Holdings Pty Ltd v Wallace & Anor [2010] QLAC 004.

   [3] [2010] QLC 0113.

7. The thrust of the extracts quoted from those decisions was to the effect that the discretion of this Court to award costs in an appropriate circumstance is well recognised and, while there is no automatic application of the “rule” that costs will normally follow the event, that proposition is a factor to be taken into account when exercising the discretion to make an order for costs in favour of a party.

8. As to the merits of the current case the respondent urges upon the Court that it should have regard to the following matters:-

   “(a) The Respondent was completely successful in the proceeding. There were three different bases upon which the Applicant sought to maintain a caveat, in one form or other, over the mining leases. Each of those bases completely failed.

   (b)   The Respondent has conducted itself in respect of the proceeding both reasonably and appropriately at all times.

   (c)   On the other hand, the motives of the Applicant in bringing its application are questionable, given that it has never commenced the Supreme Court proceeding seeking the relief to which it alleged gave rise to a right to maintain a caveat over the mining leases. The proceeding was foreshadowed in the Applicant’s Originating Application filed with the Court on 27 June 2011. It was again foreshadowed by Counsel for the Applicant at the hearings before this Court on 28 June and 27 July 2011 (refer paragraphs [70] - [73] of the judgment of His Honour Member Cochrane delivered on 15 February 2012.

   (d)   The factual and legal issues in the proceedings were sufficiently complex to warrant legal representation. Indeed, both parties were legally represented by solicitors with each having Counsel appearing for them at the final hearing.

   (e)   By the Applicant’s commencement of the proceeding, the Respondent was forced to defend its position and incur substantial costs in doing so.”

9. In my view those submissions are compelling having regard to the reasons set out by me in my judgement delivered on 15 February 2012.

10. In response to the submissions of the respondent the applicant wrote to the Court on 1 March 2012 observing, consequent upon having received instructions from its clients, that:

    “In accordance with those instructions we advise that our client does not oppose the Respondent’s entitlement to costs. To be clear, the Applicant agrees to pay the Respondent’s costs of and incidental to the proceeding as agreed, or failing agreement, to be assessed on the standard basis.

    The Applicant will abide the order of the Court with respect to the appropriate scale of costs to be applied to the assessment.”

11. In its submissions the respondent sought orders that the applicant pay the respondent’s costs of and incidental to the proceeding as agreed or, failing agreement, to be assessed on the standard basis applying alternative scale of costs under the Uniform Civil Procedure Rules 1999. The alternative scales were the Supreme Court scale of costs and the District Court scale of costs.

12. I am not entirely sure that there is a substantial difference between those two scales of costs however having regard to the apparent value ascribed to the leases in the affidavit of Zhang (uncontradicted by the applicant) it seems to me appropriate that the costs be awarded applying the Supreme Court scale of costs having regard to the more limited monetary jurisdiction of the District Court.

13. I should note that, even though the respondent did not contend for indemnity costs, I would have been disinclined to allow costs on that basis.

Orders

Accordingly the order I make is as follows:

1.     The applicant pay the respondent’s costs of and incidental to the proceeding as agreed or, failing agreement, to be assessed on the standard basis applying the Supreme Court scale of costs under the Uniform Civil Procedure Rules.

2.     The respondent’s costs be decided by the appropriate assessing officer of 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 standard basis using the Supreme Court scale of costs current at the date of this order.

WL COCHRANE

MEMBER OF THE LAND COURT