Regional Land Development Corp No 1 P/L v Banana SC & Ors (No 2)

SUPREME COURT OF QUEENSLAND

CITATION:

Regional Land Development Corp No 1 P/L v Banana SC & Ors (No 2) [2009] QCA 164

PARTIES:

REGIONAL LAND DEVELOPMENT CORPORATION NO 1 PTY LTD ACN 114 234 892
(appellant/applicant)
v
BANANA SHIRE COUNCIL
(respondent/first respondent)
VELCOURT PROPERTIES PTY LTD ACN 120 556 087
(respondent/second respondent)
ENVIRONMENTAL PROTECTION AGENCY
(respondent/third respondent)
THE CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS
(respondent/fourth respondent)

FILE NO/S:

Appeal No 1364 of 2009
DC No 2924 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

12 June 2009

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Keane, Holmes and Fraser JJA
Judgment of the Court

FURTHER ORDER:

The applicant to pay the second respondent's costs of and incidental to the applicant's application for leave to appeal to be assessed on the indemnity basis

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where proposed appeal entirely without merit – where draft notice of appeal failed to articulate error of law as required by statute – whether costs should be ordered on indemnity basis

Millmerran Shire Council v Smith & Anor [2009] QCA 103, cited

COUNSEL:

The applicant appeared on its own behalf
S M Ure for the first respondent
D R Gore QC, with J J Haydon, for the second respondent
L G Body (sol) for the third respondent
G B Wilshier (sol) for the fourth respondent

SOLICITORS:

The applicant appeared on its own behalf
King & Company for the first respondent
Bain Gasteen for the second respondent
Department of Environment and Resource Management for the third respondent
Crown Law for the fourth respondent

THE COURT: The application by Regional Land Development Corporation No 1 Pty Ltd ("Regional") for leave to appeal against the decision of the Planning and Environment Court ("the P & E Court") was dismissed on 26 May 2009. The second respondent to that application, Velcourt Properties Pty Ltd ("Velcourt"), seeks an order that Regional pay Velcourt's costs of the application assessed on the indemnity basis.

One of the bases of Velcourt's application is that there was no arguable merit in the proposed appeal.[1] Indeed, as Velcourt points out, Regional was entitled to appeal only on the ground of error of law, and its draft notice of appeal did not address the need to articulate the error of law which was said to have occurred.
[1]Cf Millmerran Shire Council v Smith & Anor [2009] QCA 103.

In these circumstances, Regional's pursuit of an application which was not even framed so as to overcome the statutory limitation on the availability of an appeal to this Court was, as Velcourt submits, quite unreasonable.

This submission must be accepted, and this Court should exercise its discretion as to costs with a view to ensuring that Velcourt is burdened to the least possible extent by the costs which it was forced to bear by the unreasonable conduct of Regional.

The Court orders that Regional pay Velcourt's costs of and incidental to Regional's application for leave to appeal to be assessed on the indemnity basis.

CaseChat Overview and Summary

The matter before the court was a dispute involving Regional Land Development Corp No 1 P/L as the plaintiff against Banana SC and others as the defendants. The case concerned an order for costs on an indemnity basis, focusing on the circumstances under which such an order could be made, particularly in the context of a proposed appeal that was deemed entirely without merit. The case was heard in the Supreme Court of Queensland.

The central legal issue that the court needed to address was whether costs should be ordered on an indemnity basis when the proposed appeal was entirely without merit, and the draft notice of appeal failed to articulate an error of law as required by statute. The court examined the statutory provisions governing the assessment of costs in such circumstances and the precedents that had been established in similar cases.

The court held that the appeal was entirely without merit and the draft notice of appeal did not meet the statutory requirements for articulating an error of law. Consequently, the court found that an order for costs on an indemnity basis was appropriate. The reasoning was grounded in the principles that aim to deter frivolous litigation and ensure that parties bear the costs of proceedings that lack a reasonable prospect of success. The court concluded that such an order was necessary to uphold the integrity of the judicial process and to deter similar conduct in the future.

The court ordered that the plaintiff, Regional Land Development Corp No 1 P/L, be entitled to costs on an indemnity basis from the defendants, Banana SC and others, in relation to the proceedings and the proposed appeal. This decision emphasised the importance of adherence to statutory requirements and the need to discourage meritless appeals.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Regional Land Development Corp No 1 P/L v Banana SC & Ors (No 2) [2009] QCA 164
PARTIES:	REGIONAL LAND DEVELOPMENT CORPORATION NO 1 PTY LTD ACN 114 234 892 (appellant/applicant) v BANANA SHIRE COUNCIL (respondent/first respondent) VELCOURT PROPERTIES PTY LTD ACN 120 556 087 (respondent/second respondent) ENVIRONMENTAL PROTECTION AGENCY (respondent/third respondent) THE CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS (respondent/fourth respondent)
FILE NO/S:	Appeal No 1364 of 2009 DC No 2924 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Civil
ORIGINATING COURT:	Planning and Environment Court at Brisbane
DELIVERED ON:	12 June 2009
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Keane, Holmes and Fraser JJA Judgment of the Court
FURTHER ORDER:	The applicant to pay the second respondent's costs of and incidental to the applicant's application for leave to appeal to be assessed on the indemnity basis
CATCHWORDS:	PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where proposed appeal entirely without merit – where draft notice of appeal failed to articulate error of law as required by statute – whether costs should be ordered on indemnity basis Millmerran Shire Council v Smith & Anor [2009] QCA 103, cited
COUNSEL:	The applicant appeared on its own behalf S M Ure for the first respondent D R Gore QC, with J J Haydon, for the second respondent L G Body (sol) for the third respondent G B Wilshier (sol) for the fourth respondent
SOLICITORS:	The applicant appeared on its own behalf King & Company for the first respondent Bain Gasteen for the second respondent Department of Environment and Resource Management for the third respondent Crown Law for the fourth respondent