Rofail v Wells (No. 2)

[2011] QPEC 131

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Rofail & Ors v Wells (No. 2) [2011] QPEC 131

PARTIES:

MAGED ROFAIL, SABINA MANUELA ROFAIL & ROFAIL GRANDCHILDREN FUND PTY LTD
(Applicants)

V

AMANDA JANE SACRE WELLS
(Respondent)

FILE NO/S:

BD 2213/2001

DIVISION:

Planning & Environment

PROCEEDING:

Originating Application and Application in a Pending Proceeding

ORIGINATING COURT:

Planning & Environment Court, Brisbane

DELIVERED ON:

20 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Dorney QC, DCJ

ORDER:

I order that:  there be no order as to costs for the proceeding

CATCHWORDS:

Costs – exception to the “no costs” rule – whether vexatious – where course not unjustified and no harassment

Sustainable Planning Act 2009, ss 243, 245, 367, 457, 578, 580

DTMR v Brisbane City Council & Orb Holdings Pty Ltd [2011] QPEC 108
Mudie v Gainriver Pty Ltd (No. 2) [2003] 2 Qd R 271
Oceanic Sun Line Special Shipping Company Inc. v Fay (1988) 165 CLR 197

COUNSEL:

R A Quirk for the applicant

S P Fynes-Clinton for the respondent

SOLICITORS:

Southside Property & Commercial Lawyers for the applicant

Canning Weil Lawyers for the respondent

Background

1. On 6 October 2011 I ordered that the applicant’s Amended Originating Application be dismissed and that both parties have leave to file submissions in writing on the issue of costs.  Many submissions, from both sides, have now been filed. 

1. Distilled from those submissions is the primary argument of whether the applicants’ maintaining of the proceeding against the respondent was, after 9 July 2011, “vexatious” within the meaning of the Sustainable Planning Act 2009 (“SPA”), s 457(2)(b).

1. The reason for the date of 9 July 2011 being chosen by the respondent is that it was the day that followed the letter of the respondent to the applicants dated 8 July 2011, wherein, by the respective solicitors, the applicants were “put” on specific notice of two discrete matters which were asserted by the respondent to be fatal to the Originating Application as a matter of law, without any need to consider the facts of what was, or was not, done on Lot 39 in relation to the relevant relocated roofwater drainage pipes. 

1. The asserted matters were that:

(a)        what had been done by the respondent was exempt development; and

(b)        the applicants have no lawful right way by easement, or equivalent right created by any development permit condition, to discharge roofwater through the respondent’s property.

1. The latter assertion was contended by the respondent to make any argument about the standard or capacity of works which the applicants wished to use for that purpose of discharge as academic; and, thus, rendering the proceeding of no utility (having regard to the nature of the relief sought being discretionary).

1. On 22 July 2011, Robin QC DCJ took the view, though somewhat regretfully, that it then seemed inappropriate for him to determine finally the respondent’s application for summary dismissal of the applicants’ Originating Application, being firmly of the view that the local Redland City Council…