Robertson v Brisbane City Council - [2021] QPEC 54

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Robertson & Ors v Brisbane City Council & Ors [2021] QPEC 54

PARTIES:

MARK ROBERTSON and FREYA ROBERTSON

(first applicants)
And
JOHN BENNETT and SALLY BENNETT
(second applicants)
v
BRISBANE CITY COUNCIL
(first respondent)
And
WEYERS DEVELOPMENTS PTY LTD
(ACN 102 288 237)
(second respondent)
And
RD NOMINEES PTY LTD

(ACN 109 341 791)

(third respondent)

FILE NO:

607 of 2021

DIVISION:

Planning and Environment

PROCEEDING:

Application for Costs

ORIGINATING COURT:

Planning and Environment Court of Queensland at Brisbane

DELIVERED ON:

15 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

Dealt with on the papers (Submissions closed on 13 October 2021)

JUDGE:

RS Jones DCJ

ORDER:

1. The first and second applicants are to pay 40 percent of the costs of the second and third respondents on the standard basis.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL – COSTS – where relief sought in substantive proceeding concerned declaration that decision notice approving development application was void and to no effect – where declaration sought that decision notice be set aside – where originating application dismissed – where respondents to substantial proceeding sought costs – whether costs should be awarded under s 60(1) of the Planning & Environment Court Act 2016 – whether costs assessed on standard or indemnity basis

LEGISLATION:

Planning Act 2016 (Qld) s 60
Planning and Environment Court Act 2016 (Qld) s 11, 59, 60

Sustainable Planning Act 2009 (Qld) s 457

CASES:

Firebird Global Master Fund II Ltd v Republic of Nauru [No 2][2015] HCA 53; 90 ALJR 270
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 364; 81 ALR 397
Mudie v Gainriver Pty Ltd & Anor [2002] QCA 546; [2003] 2 Qd R 271
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Robertson & Ors v Brisbane City Council & Ors [2021] QPEC 44
Sincere International Group Pty Ltd v Council of the City of Gold Coast (No.2) [2019] QPEC 9; [2019] QPELR 662

Younie & Anor v Dender & Ors [2014] QPEC 70; [2015] QPELR 322

COUNSEL:
Mr S Doyle QC with Ms S Spottiswood for the first and second applicants

Mr D O’Brien QC and Mr W Macintosh for the second and third respondents

SOLICITORS:
Connor O’Meara Solicitors for the first and second applicants

HWL Ebsworth Lawyers for the second and third respondents

On 2 September 2021, I handed down my reasons in the matter of Robertson & Ors v Brisbane City Council & Ors [2021] QPEC 44. The orders made by the court were that the application be dismissed and that the court would hear further from the parties if necessary as to any consequential orders.
I am now concerned with an application made on behalf of the second and third respondents for their costs. No such orders are sought by the first respondent. The relief the second and the third respondents seek is as follows:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QPEC 54
Decision Date: 15 October 2021

CaseChat Overview and Summary

The matter before the Court involved an appeal by the applicants against a decision of the Brisbane City Council to approve a development application. The applicants sought a declaration that the decision notice approving the development was void and of no effect, and also sought to have the decision notice set aside. The respondents to the substantive proceeding sought costs from the applicants. The Court was required to determine whether the applicants were liable for the respondents’ costs and, if so, whether those costs should be assessed on a standard or indemnity basis.

The Court noted that the applicants’ appeal was not successful and that the respondents had substantially succeeded in both the originating application and the appeal. The Court found that the applicants’ appeal was not a case where the Court should exercise its discretion to award costs on a different basis than the standard basis. The Court also found that the applicants’ appeal was not frivolous or vexatious, and that there were no special circumstances that would warrant an award of indemnity costs. Accordingly, the Court held that the applicants were liable for 40 percent of the respondents’ costs on the standard basis.

The Court further found that the applicants’ appeal was not entirely without merit, as they had raised arguable issues that were reasonably capable of success. However, the Court held that the applicants’ appeal was not successful overall, and that the respondents were entitled to costs on the standard basis. The Court also noted that the applicants had not demonstrated any special circumstances that would warrant an award of indemnity costs.

In summary, the Court held that the applicants were liable for 40 percent of the respondents’ costs on the standard basis. The Court found that the applicants’ appeal was not frivolous or vexatious, and that there were no special circumstances that would warrant an award of indemnity costs. The Court’s decision highlights the importance of carefully considering the merits of an appeal before proceeding with litigation, as unsuccessful litigants may be liable for substantial costs.

Orders

Orders of the court

1. The first and second applicants are to pay 40 percent of the costs of the second and third respondents on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Robertson & Ors v Brisbane City Council & Ors [2021] QPEC 54
PARTIES:	MARK ROBERTSON and FREYA ROBERTSON (first applicants) And JOHN BENNETT and SALLY BENNETT (second applicants) v BRISBANE CITY COUNCIL (first respondent) And WEYERS DEVELOPMENTS PTY LTD (ACN 102 288 237) (second respondent) And RD NOMINEES PTY LTD (ACN 109 341 791) (third respondent)
FILE NO:	607 of 2021
DIVISION:	Planning and Environment
PROCEEDING:	Application for Costs
ORIGINATING COURT:	Planning and Environment Court of Queensland at Brisbane
DELIVERED ON:	15 October 2021
DELIVERED AT:	Brisbane
HEARING DATE:	Dealt with on the papers (Submissions closed on 13 October 2021)
JUDGE:	RS Jones DCJ
ORDER:	1. The first and second applicants are to pay 40 percent of the costs of the second and third respondents on the standard basis.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL – COSTS – where relief sought in substantive proceeding concerned declaration that decision notice approving development application was void and to no effect – where declaration sought that decision notice be set aside – where originating application dismissed – where respondents to substantial proceeding sought costs – whether costs should be awarded under s 60(1) of the Planning & Environment Court Act 2016 – whether costs assessed on standard or indemnity basis
LEGISLATION:	Planning Act 2016 (Qld) s 60 Planning and Environment Court Act 2016 (Qld) s 11, 59, 60 Sustainable Planning Act 2009 (Qld) s 457
CASES:	Firebird Global Master Fund II Ltd v Republic of Nauru [No 2][2015] HCA 53; 90 ALJR 270 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 364; 81 ALR 397 Mudie v Gainriver Pty Ltd & Anor [2002] QCA 546; [2003] 2 Qd R 271 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Robertson & Ors v Brisbane City Council & Ors [2021] QPEC 44 Sincere International Group Pty Ltd v Council of the City of Gold Coast (No.2) [2019] QPEC 9; [2019] QPELR 662 Younie & Anor v Dender & Ors [2014] QPEC 70; [2015] QPELR 322
COUNSEL:	Mr S Doyle QC with Ms S Spottiswood for the first and second applicants Mr D O’Brien QC and Mr W Macintosh for the second and third respondents
SOLICITORS:	Connor O’Meara Solicitors for the first and second applicants HWL Ebsworth Lawyers for the second and third respondents