Ostroco v Department of Main Roads (No 2)

[2012] QLAC 7

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Ostroco v Department of Transport and Main Roads (No. 2) [2012] QLAC 007

PARTIES:

OSTROCO PTY LTD
(appellant)

v

CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS
(respondent)

FILE NO/S:

LAC 003-12

DIVISION:

Land Appeal Court

PROCEEDING:

Costs of Appeal to Land Appeal Court

ORIGINATING COURT:

Land Court

DELIVERED ON:

7 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the Papers

COURT:

Peter Lyons J
Mr PA Smith
Mr WL Cochrane

ORDERS:

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

2.      Pursuant to s.34(3) of the Land Court Act 2000, Order 1 may be made an Order of the Supreme Court and enforced in the Supreme Court.

CATCHWORDS:

Costs – unfettered discretion – principle that costs follow the event – ss 34 and 72 Land Court Act 2000

YMCA v Chief Executive, Department of Transport & Main Roads(No. 2) [2012] QLAC 004, followed
Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq.) & Ors(No. 2) [2012] QLAC 002, applied

COUNSEL:

PW Hackett for the appellant

SOLICITORS:

H Drakos & Company Solicitors for the appellant
Clayton Utz for the respondent

1. The Court:  Judgment in this matter was handed down on 11 October 2012. The appeal was allowed. The applicant now seeks costs to be paid by the respondent on the basis that costs should follow the event, the appellant having been successful on the appeal. By letter of 16 October 2012, the solicitors for the respondent have advised the court that the respondent does not intend to make any submissions as to costs.

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 s.34, 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. In the decision of Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors(No. 2)[1] this Court, constituted by McMeekin J, President MacDonald and Member Smith, had this to say with respect to those provisions:[2]

“[4] 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. 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.” (footnotes omitted)

[1] [2012] QLAC 002.

[2] At paragraph [4].

1. In the recent decision of YMCA v Chief Executive, Department of Transport and Main Roads(No. 2),[3] this court, then constituted by Peter Lyons J, Member Smith and Member Isdale, applied the reasoning in Mentech (No. 2).

[3] [2012] QLAC 004.

1. There appears to us to be no good reason to depart from the principles applied in YMCA (No. 2) and Mentech (No. 2). Accordingly, in all of the circumstances of this matter, in our view, costs should follow the event with respect to the appeal.

ORDERS

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

2. Pursuant to s.34(3) of the Land Court Act 2000, Order 1 may be made an Order of the Supreme Court and enforced in the Supreme Court.

PETER LYONS J

PA SMITH

MEMBER OF THE LAND COURT

WL COCHRANE

MEMBER OF THE LAND COURT