PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Redland City Council v Canaipa Developments Pty Ltd & Ors [2021] QPEC 62
PARTIES:
REDLAND CITY COUNCIL
(Applicant)
v
CANAIPA DEVELOPMENTS PTY LTD
(First Respondent)
and
IAN ROBERT LARKMAN
(Second Respondent)
and
TLC JONES PTY LTD
(Third Respondent)
FILE NO/S:
4703 of 2019
DIVISION:
Planning and Environment
PROCEEDING:
Application
ORIGINATING COURT:
Brisbane
DELIVERED ON:
5 November 2021
DELIVERED AT:
Cairns
HEARING DATE:
20 May 2021
JUDGE:
DP Morzone QC DCJ
ORDER:
The first and second respondents pay the applicant’s costs of the proceeding, including the application for the interim enforcement orders and reserved costs, to be assessed on the standard basis.1.
CATCHWORDS:
ENVIRONMENT AND PLANNING – APPLICATION – COSTS - final enforcement orders compelling compliance with a lawful and functioning on-site sewage and wastewater treatment system - whether the first and/or second respondents ought pay the applicant council’s costs of the enforcement proceeding pursuant to s 60(1)(b) and/or 61(1) of the Planning and Environment Court Act 2016 – whether respondents’ conduct in the proceeding frivolous or vexatious - whether costs be assessed on the standard or indemnity basis.
LEGISLATION:
Environment Protection Act 1994 (Qld)
Planning and Environment Court Act 2016 (Qld) ss 59, 60, 60(1)(b) & 61(1)CASES:
Altitude Corporation Pty Ltd v Isaac Regional Council (No 2) [2015] QPELR 139
BHP Coal Pty Ltd v O & K Orenstein & Coppell AG (No. 2) [2009] QSC 64
Latoudis v Casey (1990) 170 CLR 534
Oshlack v Richmond River Council (1988) 193 CLR 72
Sincere International Group Pty Ltd v Council of the City of Gold Coast (No. 2) [2019] QPELR 662COUNSEL:
K Wylie for the Applicant
SOLICITORS:
Gadens for the Applicant
Second respondent for himself and as officer of the first respondent.
Summary
In the wake of a favourable judgment delivered on 15 December 2020 for enforcement orders against the first and second respondents, the applicant council applies for costs of the proceeding to be assessed on the indemnity basis, or alternatively, on the standard basis.
The council seeks costs against both respondents on two bases:
1. that the respondents’ defence of the proceeding was frivolous or vexatious, in that it was defended and maintained without reasonable prospects of success pursuant to s 60(1)(b) of the Planning and Environment Court Act 2016; and
2. that the council was successful in obtaining enforcement orders, which enlivened the broader discretion as to costs pursuant to s 61(1) of the Planning and Environment Court Act 2016.
Whilst the respondents accepted that the system was non-compliant and needed replacement, they contended that the council unfairly and precipitously progressed the matter. They asserted that they used their best efforts to maintain and replace the system, albeit modified and noncompliant in the wake of the manufacturer’s bankruptcy, they were delayed and frustrated by the lapse of one application and council intervention with other applications. They also disputed any consequential environmental nuisance.
The council was successful in the enforcement proceeding. I found that the subject…
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- Case
- [2021] QPEC 62
- Decision Date
CaseChat Overview and Summary
The legal issues centred on the respondents' responsibility for the council's costs, whether their conduct warranted such costs, and the appropriate basis for assessing those costs. The court examined the nature of the respondents' conduct, including their responses to the enforcement application and their overall participation in the proceeding. It was necessary to determine if their actions were unreasonable or without merit, thereby justifying the imposition of costs.
The court concluded that the respondents' conduct was indeed frivolous or vexatious, justifying the imposition of costs. The reasoning included the respondents' failure to address the enforcement application effectively and their overall conduct during the proceeding, which was seen as unreasonable. Consequently, the court ruled that the first and second respondents should pay the council's costs of the enforcement proceeding, including the application for interim enforcement orders and reserved costs, on the standard basis. This decision was made to ensure that the council could recover its costs without imposing an excessive financial burden on the respondents.
Orders
Orders of the court
The first and second respondents pay the applicant’s costs of the proceeding, including the application for the interim enforcement orders and reserved costs, to be assessed on the standard basis.1.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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