Regional Land Development Corporation No 1 Pty Ltd v Banana Shire Council

[2008] QPEC 44

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Regional Land Development Corporation No 1 Pty Ltd v Banana Shire Council & Ors [2008] QPEC 44

PARTIES:

REGIONAL LAND DEVELOPMENT CORPORATION NO 1 PTY LTD ACN 114 234 892

Appellant

V

BANANA SHIRE COUNCIL

Respondent

And

VELCOURT PROPERTIES PTY LTD ACN 120 556 087

Co-respondent

And

THE CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENTAL PROTECTION AGENCY

Co-respondent by Election

FILE NO/S:

2924 of 2007

DIVISION:

Planning and Environment

PROCEEDING:

Application in a proceeding

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

10 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

19 June 2008

JUDGE:

Alan Wilson SC, DCJ

ORDER:

That the appellant pay the co-respondent’s costs of and incidental to the appearance on 19 June 2008 assessed on the standard basis.

CATCHWORDS:

PLANNING LAW – PRACTICE & PROCEDURE –APPLICATION FOR COSTS – whether non-compliance with directions of the Court enliven the discretion in s 4.1.23(2) of IPA to award costs

Integrated Planning Act 1997, s 4.1.23(2)

Cases considered

Gauci Developments (Qld 1) Pty Ltd v Bundaberg City Council [2008] QPEC 41
Sherringham Holdings Pty Ltd v Maroochy Shire Council [2007] QPELR 217

COUNSEL:

S O’Brien for appellant
D P Kevin, solicitor, for respondent
J Haydon for co-respondent

SOLICITORS:

HWL Ebsworth Lawyers
King and Company
Bain Gasteen

[1]      This is an application by the co-respondent Velcourt Properties Pty Ltd for an order that the appellant pay its costs associated with a hearing on 19 June 2008.  Neither the respondent Council nor the co-respondent by election are interested in, or affected by, the application. 

[2] Velcourt relies upon s 4.1.23(2)(e) of the Integrated Planning Act 1997. Some rather unusual aspects of that provision were raised in Sherringham Holdings Pty Ltd v Maroochy Shire Council [2007] QPELR 217 but sufficiently addressed, I think, for present purposes in my recent decision in Gauci Developments (Qld 1) Pty Ltd v Bundaberg City Council [2008] QPEC 41. In any event no arguments concerning the matters remarked in Sherringham were raised in this application.

[3]      This matter has been before the court on earlier occasions for directions orders including, in particular, orders about disclosure.  These orders are the genesis of the present dispute about costs.  On 9 May 2008 his Honour Judge Rackemann made specific orders about further disclosure by the appellant.  On 28 May 2008 the time for that disclosure was extended from 16 May to 29 May and additional, particular disclosure orders were made. 

[4]      One of those orders required the appellant to file an affidavit concerning a particular aspect of disclosure by 4.00 pm on 4 June 2008.  The appellant’s advisors say, and I accept, that they did not understand an order in those terms was, in fact, made on 28 May although it certainly appears upon the copies of the order on the court file.  In any event, a sealed copy of the order was sent, by the co-respondent’s solicitors, on 6 June with a request that the affidavit be sworn by noon on 10 June – ie, some 6 days after the time the order itself required.

[5]      The appellant’s uncertainty about the orders of 28 May was raised before his Honour Judge Rackemann on 12 June and, on any view, evaporated when his Honour specifically ordered that the time for compliance with paragraph 6 of the earlier order of 28 May be extended, again, to 13 June.  His Honour did so in circumstances, which are uncontested, where the appellant’s solicitor did not oppose the making of that order or seek further time.

[6]      In fact when the matter returned before me on 19 June the circumstance of non-compliance still applied.  On that day I extended time, yet again, to 5.00 pm on 20 June.

[7]      While an affidavit filed on behalf of the appellant showed it had been attempting to comply with the order of 28 May and had encountered practical difficulties and problems which constitute a not unreasonable explanation for the passing of more time than the orders of this court allowed, the fact remains that the matter has come back three times and, on any view, that is one too many.  The co-respondent has been obliged by reason of the delays to press, and press again, for compliance in circumstances where – and I think this is determinative – the appellant twice, either openly or tacitly, indicated an ability and an intention to comply with time limits the court imposed.

[8]      Once that conclusion is reached and, by unavoidable inference, that the appellant has been the cause of the delay and that its conduct explains the need for the additional hearing, the circumstances properly attract the discretion arising under s 4.1.23(e).  An order will, then, be made that the appellant pay the co-respondent’s costs of and incidental to the appearance on 19 June 2008 assessed on the standard basis.