SRG Management Services Pty Ltd v. Gold Coast City Council & Ors

[2009] QPEC 15

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

SRG Management Services Pty Ltd v Gold Coast City Council & Others [2009] QPEC 15

PARTIES:

SRG Management Services Pty Ltd

(appellant)

V

Gold Coast City Council

(respondent)

And

Lattison Pty Ltd & CC Traders Pty Ltd

(co-respondents)

FILE NO/S:

392 of 2008

ORIGINATING COURT:

Southport

DELIVERED:

Ex tempore on 06 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

02 April 2009

JUDGE:

Kingham DCJ

ORDER:

1.   Application granted

2.   The appellant to pay the costs thrown away and costs of and incidental to the application. Costs to be assessed on the standard basis

3.   The parties to prepare formal orders to give effect to these reasons

CATCHWORDS:

PLANNING AND ENVIRONMENT–  ENVIRONMENTAL

PLANNING -   whether the appellant should be granted

leave to call expert evidence when delay on appellant’s

behalf – where prejudice to opponent is costs and a

delayed hearing date

PLANNING AND ENVIRONMENT – COSTS – where

costs to be paid by appellant – whether costs should be fixed

by court – whether assessed on an indemnity basis – whether

date for payment should be fixed

Integrated Planning Act 1997 (Qld), s4.1.23.

Uniform Civil Procedure Rules 1999 (Qld), r 712, r 713
Gold Coast City Council v Metrostar Pty Ltd [2005] QPELR 17

Queensland v JL Holdings Pty Ltd [1996-1997] 189 CLR 146

COUNSEL:

R Nelmes for the appellant

M Cooke for the respondent

J Houston for the co-respondent

SOLICITORS:

DLA Philipps Fox for the appellant

King & Company for the respondent

Hopgood Ganim for the co-respondent

HER HONOUR: Gold Coast City Council approved an application by Lattison Pty Ltd and CC Traders Pty Ltd for a material change of use of land at Coombabah for 52 residential apartments.  SRG Management Services Pty Ltd (“SRG”), which manages a retirement village on adjoining land, appealed against Gold Coast City Council’s decision in July last year.

Until it filed this application on 1 April, SRG was represented by its Director, Mr Coles.  Directions identifying the issues in dispute and providing for pre-trial preparation, including experts meetings and reports and without prejudice meetings were made in August and December last year. Mr Coles personally attended the without prejudice meetings. Until recently, SRG did not engage any experts and meetings of experts took place without expert input on its behalf.  In mid-March, David Hassall, a landscape architect and botanist, was engaged to advise SRG on the visual amenity and character aspects of the proposed development.

SRG now applies for directions designed to repeat those steps already taken by the other parties’ experts in relation to visual amenity and character, so as to include its expert, David Hassall.  Gold Coast City Council, Lattison Pty Ltd and CC Traders Pty Ltd oppose this, primarily because of their concern it will prevent the appeal being heard in the short term.

The appeal does not, currently, have a certain listing.  At a call over in early February the appeal was given two reserve listings: one in the week commencing 20 April and, in case it is not then reached, it is also listed as a reserve in the week commencing 4 May.

SRG argued there is sufficient time, even before 20 April, for what needs to take place to occur. That is contested, although the other parties agree there is sufficient time for the exchange, meeting and report to occur before the May dates.  They expressed their concern, however, that their town planning experts may need to review their report once the new joint report is available. With a view to narrowing the issues, they requested and the solicitor for SRG undertook, to identify the issues now in dispute.  That was to have occurred at the end of last week.

David Hassall has provided preliminary advice to SRG expressing reservations about the size, bulk and scale of the proposed buildings given their set back distance.  The major concern he identified is the visual and general amenity impact of such a built form on the retirement village.  This was clearly indicated as an issue in the Notice of Appeal.  The respondents have engaged experts on these issues and they have already conferred and produced reports.  While some work will have to be repeated, with the input of Mr Hassall, the parties still have the benefit of their expert’s consideration of the issues raised by him.

SRG has raised a legitimate issue which goes to the merit of the proposal.  Undoubtedly, the court will be assisted in its function by expert opinion.  The usual practice in this jurisdiction is for expert opinion to be tested by contrary expert opinion where the parties are in a position to and wish to lead that evidence.

It is evident from the correspondence from both respondents to SRG that, at least by late February or early March this year, they anticipated Mr Coles may have been reconsidering his position with respect to expert evidence.  Indeed they went to some lengths to make it clear to him that they considered SRG’s prospects of success to be slim in the absence of supporting opinion and to put him on notice that they may seek costs should he be unsuccessful. It is not surprising that their correspondence prompted Mr Coles to take action he may have been well advised to take earlier.

The court’s previous orders were directed towards efficient and effective preparation of the appeal for hearing and to narrow the issues for determination to those truly in dispute.  Implicit in them was encouragement of SRG to consider whether it should engage legal and other expert assistance. Unfortunately it appears to have been only the recent correspondence and the looming appeal hearing that concentrated Mr Coles’ mind on the conduct of the appeal.

While that is unsatisfactory, case management imperatives should not overwhelm other considerations, including the potential injustice of shutting out expert evidence in support of one party’s case: 

“Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application.”[1]

[1]Queensland v JL Holdings Pty Ltd [1996-1997] 189 CLR 146 at 155 per Dawson Gaudron & McHugh JJ.

Prejudice is the crucial issue for the court in exercising its discretion. Costs aside, the only prejudice the respondents will suffer if this application is allowed is the loss of the opportunity for the appeal to be heard in April.  On the other hand, if the application is not allowed, SRG will have lost the opportunity to contest the expert opinion offered by the other parties on its primary area of concern.  This militates in favour of the relief SRG seeks.  I am persuaded directions should be made to allow Mr Hassall to participate in the appeal.

The representatives of all parties are commended for their work in developing a set of directions which will best accommodate the interests of each, should the court make the orders sought by SRG. The draft directions prepared by Lattison and CC Traders will need some amendment to reflect the matters raised by Gold Coast City Council. Absent unanticipated delays, directions can be made which will allow the appeal to be heard on the May dates if the matter listed as the no 1 hearing is resolved or otherwise does not proceed.

The parties have indicated they will jointly seek a listing in the May Planning & Environment pool in Brisbane. Whether this matter can or should be given a Brisbane listing will be considered by others and that potential has, ultimately, played no part in this decision. 

Gold Coast City Council and Lattison and CC Traders seek costs orders which achieve the following:

• Reimbursement of the costs thrown away because of the requirement for a second meeting of experts on visual amenity and character;
• Reimbursement of the legal costs of and incidental to the application;
• Those legal costs to be assessed on an indemnity basis;
• The amount of those costs to be fixed by the court on information provided; and
• The costs to be paid before the hearing on a date specified.

SRG has not argued against an order to reimburse the other parties for experts’ fees thrown away and the legal costs of the application.  It opposes legal costs being assessed on an indemnity basis, the court fixing the costs and an order to pay the costs by a specified date.

SRG’s change of position about whether to engage an expert should sound in costs.  The other parties have been inconvenienced, put to extra cost and have lost the possibility of an April hearing.[2] The court has the power to award costs on an indemnity basis.[3] Mr Coles did not explain the circumstances in which SRG changed its position on engaging an expert. The practical effect of this is that SRG notified its expert after the date the court directed and was, therefore, non-compliant with court orders.

[2]Integrated Planning Act 1997 (Qld), s4.1.23.

[3]Gold Coast City Councilv Metrostar Pty Ltd [2005] QPELR 17.

Nevertheless, I see no indication in his behaviour of an improper motive at play. He does not seek to delay the hearing, rather urged that the April reserve listing was not disturbed.  His decision to consult a lawyer was made after SRG received a number of letters from the respondents indicating their intention to seek costs should SRG fail in its appeal and seeking information to satisfy them that SRG was able to meet a costs order.  It is reasonable to assume no coincidence in the timing. Once a lawyer was consulted, it is unsurprising SRG reviewed its attitude to securing expert assistance.  SRG’s solicitor was not forthcoming about SRG’s position for some weeks after he was engaged.

Nevertheless, this is not a case of misconduct which would justify an award on an indemnity basis and I decline the application for costs to be so assessed.

I am likewise not persuaded to fix the costs.  The costs involved are not insignificant. Without expressing any view about whether the proposed amount is reasonable, the rules provide an expeditious process for assessment by an agreed costs assessor.[4] The directions should provide for SRG to pay the experts’ costs thrown away and the costs of and incidental to the application as assessed, on the standard basis, by a named assessor.  If the parties cannot agree, the court will decide who will be appointed.[5]  The rules provide a regime for payment of the costs so assessed and no date will be fixed. 

[4]Uniform Civil Procedure Rules 1999 (Qld), r 712.

[5]Uniform Civil Procedure Rules 1999 (Qld), r 713.

Lattison and CC Traders have flagged their interest in applying for an order for security for costs.  That is a matter for another day.

The representatives of the parties are invited to prepare orders which give effect to these reasons.