Rix Super Pty Ltd v. Lewani Springs Resort Pty Ltd & Anor
[2006] QPEC 102
•29 September 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Rix Super Pty Ltd v Lewani Springs Resort Pty Ltd & Anor [2006] QPEC 102
PARTIES:
RIX SUPER PTY LTD (ACN 114 534 253)
Applicant
V
LEWANI SPRINGS RESORT PTY LTD (ACN 068 977 104)
First Respondent
And
GOLD COAST CITY COUNCIL
Second Respondent
FILE NO/S:
BD 1899/2006
DIVISION:
Planning and Environment
PROCEEDING:
Application in a proceeding
ORIGINATING COURT:
Planning and Environment Court of Queensland
DELIVERED ON:
29 September 2006
DELIVERED AT:
Brisbane
HEARING DATE:
27 September 2006
JUDGE:
Alan Wilson SC, DCJ
ORDER:
Application for costs dismissed
CATCHWORDS:
PLANNING – PLANNING AND ENVIRONMENT – COSTS – COSTS IN PLANNING AND ENVIRONMENT COURT – non-compliance with order of the court – reasons for non-compliance – whether reasons attributable to another party reduce or extinguish exposure of non-complying party to costs order
Integrated Planning Act, 1997, s 4.1.23
COUNSEL:
R Nelms, Solicitor for the Applicant
S J Persijn, Solicitor for the First Respondent
R Litster for the Second Respondent
SOLICITORS:
Phillips Fox for the Applicant
Hopgood and Ganim for the First Respondent
McCullough Robertson for the Second Respondent
The parties sought to vary the timetable for steps to be taken under a Directions Order made on 18 August 2006. They agreed on the changes, but Lewani claimed the variations only became necessary because of Rix Super’s failure to comply with previous directions orders and sought the costs of this application.
The proceeding has its genesis in Rix Super’s concern that works on Lewani’s land approved by Council will have an adverse impact on its land by causing flooding or drainage problems[1]. On 14 July 2006 Directions were given including orders for particulars, disclosure, and meetings of experts and the production of a joint report. The timetable under that order was varied on 18 August and, on 21 August, the matter was set down for hearing on 5 and 6 October next.
[1] Originating Application filed 30 June 2006, para 12
The primary issue revealed by the documents exchanged under the directions orders is whether operational works approved by Council will redirect natural water flow paths. Correspondence shows that Rix Super’s fears extend to a concern that during significant wet weather events, a flow path opens up between the properties involving the road between them, Old Coach Road[2], Coomera. The order of 18 August touched that matter with a direction requiring Lewani and the Council to provide disclosure of documents relating to ‘… the proposed upgrading of Old Coach Road[3]’ by 25 August.
[2] Affidavit G N Timbs filed 26 July 2006, p 32
[3] Order 18 August 2006, para 2
Council did not produce those documents, however, until 18 September; they were inspected by Rix Super’s advisers the following day; and copies were delivered to them on 20 September. That delay, Rix says, explains why it did not file the affidavits upon which it will rely by 15 September (as the order of 18 August required) and provides it with a shield against Lewani’s claim for costs. Both Council and Lewani argued that, by reason of a joint report of hydraulics/flooding experts of 22 August, any issue concerning the upgrading of Old Coach Road evaporated and Rix cannot hide behind the delay in providing disclosure about that matter to excuse its non-compliance.
In the engineers’ joint report[4] they said:
11.The road duplication and raising of Old Coach Road will effectively prevent any significant floodwaters from flowing from the Rix Super site to the Lewani Springs site, unless additional new channelised flows and culverts are provided, including through the Lewani Springs site.
12.To manage flow diversion created by the road upgrade, Council will have to incorporate a large drain within the new carriageway reserve, to ensure that there are no significant adverse upstream impacts.
[4] Affidavit S J Persijn filed 26 September 2006, Exhibit SJP-42
On 23 August 2006 Council’s solicitors wrote to the solicitors for Rix Super suggesting that in light of this opinion of the experts the need to provide disclosure about the upgrade to Old Coach Road had evaporated. On 28 August Rix Super’s solicitors reply saying:
Moreover, notwithstanding there may have been some agreement between the experts in relation to future timing and design of the Old Coach Road upgrade, these are issues of fact not issues of expert evidence ... (and) ... my client is entitled to have the benefit of proper disclosure.
On 6 September 2006 Rix Super’s solicitors wrote again seeking disclosure of “... all documents relating to the timing, budgetary allocation and design of that (Old Coach) Road”. On 14 September they wrote to the solicitors for Lewani and Council advising that until Council had disclosed “…all documents directly relevant to the proposed upgrading of Old Coach Road, Coomera” their client could not finalise its affidavit material.
Under s 4.1.23 of the Integrated Planning Act 1997 each party to a proceeding in this court must bear its own costs, but there is a residual discretion in the court to order costs in certain circumstances including those in which a party has incurred costs because another has defaulted in the court’s procedural requirements: s 4.1.23(2)(e).
I do not think it can be said the expert’s joint reports extinguished an acknowledged, and pleaded, issue. Both paragraphs 11 and 12 contain provisos and, in light of them, I think the applicant was entitled to keep its powder dry. In any event, the point made in its solicitor’s letter to the other parties of 28 August 2006 – that agreement between the experts cannot, without an accompanying concession, extinguish the issue – is not without substance. Ultimately it may, of course, prove to be insubstantial but it is premature now, I think, to reach a final conclusion about it.
The second aspect of the matter involves the question whether or not the delay in disclosure provides the applicant with a legitimate excuse for its non-compliance with the directions order. Here, once it is concluded that Rix Super was not compelled, as a result of the experts’ joint report, to abandon the issue which explained the order for disclosure, its non-compliance is obviously attributable, to a measurable degree, to Council’s failure to provide that disclosure in a timely way pursuant in accordance with the directions order.
Costs are discretionary, and an order for them will not usually be attracted where a party’s apparent non-compliance hinges upon, or is the product of, the conduct of another party. That is a principle which underpins the discretion in the civil jurisdiction: Uniform Civil Procedure Rules, Chapter 17, Div 2. Although the rules in this Court spring from quite a different premise (that costs will not usually be awarded) the exceptions and the discretion under ss 4.1.23(2) will normally be approached along the same route – i.e., by considering not only the default, but also its causes – and, if some reasonable excuse or justification is proffered, a party in technical breach of one of the parts of the sub-section may yet avoid a costs order. Lewani did not seek costs against Council and, for these reasons, ought not have them from the applicant.
0
0