The Body Corporate La Porte D'Or v Gold Coast City Council (No 2)

[2013] QPEC 52

[2013] QPEC 52

PLANNING AND ENVIRONMENT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

P & E Appeal No 537 of 2013

THE BODY CORPORATE LA PORTE D’OR               Appellant

and

GOLD COAST CITY COUNCIL and ANOTHER          Respondent

BRISBANE

1.19 PM, FRIDAY, 10 MAY 2013

JUDGMENT

CATCHWORDS

Consideration of appropriate order to allow applications’ for costs on a withdrawal of submitters appeal 

HIS HONOUR:   This appeal was adjourned until this time today to allow the body corporate, the submitter appellant, a second attempt to obtain the special resolution necessary to authorise the proceeding.  That attempt failed yesterday, when notice of discontinuance was filed by the appellant.  It “discontinues the whole of the proceedings against the respondent and co-respondent.”  Issues of costs remain, in particular one which was foreshadowed in the last hearing, as to whether the co-respondent developer is entitled to costs against the appellant.  On that occasion, the Council, having obtained the court’s leave, did not appear.  It appears today, through Ms Prokuda. 

She, and Mr Batty for the appellant, propose different orders.  Hers authorises the co-respondent to file and serve on the appellant any application with respect to costs, and supporting material, within a week.  His adopts the same timeframe, but for the filing and serving on the other parties of any application with respect to costs, and supporting material.  Provision’s made for response material to come in within a week, and the hearing on a date to be fixed by the court.  Ms Prokuda’s order seeks her client be excused from participating in the hearing of any application for costs. 

Mr Batty tells the court he’s without instructions today but wishes to keep open the possibility of obtaining costs against the Council, on the basis of its having mislaid the client’s submission against the co-respondent’s development.  One consequence of that has been that the appellant was advised very late of the Council’s decision to grant an approval, effectively extending the appeal period from the co-respondent’s – and I suppose the Council’s – point of view.  It’s difficult for me to see how an application by the appellant, for costs against the council, could succeed in the circumstances. Things may well be different if the appellant obtains success in a future proceeding, which might be an originating application seeking the relief sought in its first interlocutory application in the appeal, which was for the court’s determination that the assessment process that was fatally flawed  by reason of its submission being ignored.  Ms Kefford, for the co-respondent, says her client is indifferent as to which of the orders is made today. 

That is on the basis of her understanding that the requirement in Ms Prokuda’s order, that any costs application against the appellant be filed and served within a week, would not in any way circumscribe what the co-respondent might do within the standard 14 days allowed to parties to approach the court, following the filing of the notice of discontinuance for withdrawal.  Ms Kefford didn’t suggest that her client has made any determination not to seek costs from the Council.  Her understanding is that an entitlement to do that is not at risk.  It’s not at all clear to me, as I’ve indicated, that the appellant may be able to get costs, but the downside of adopting Mr Batty’s proposed order seems to me slight. 

The Council will know within a week whether it faces any application for costs, and if it doesn’t, is quit of this appeal, unless it changes what’s apparently its thinking at the moment not to seek costs against any party.  There may be factors unknown to me at play here in the Council’s disappointment at not getting the order proffered by

it made.  It may lead to the Council’s being an applicant for costs as well.  Mr Batty’s client [indistinct] doing well at this proceeding from the point of view of persuading the Court to go out [indistinct] but it’s happened for a second time today.  So I make an order in terms of the draft proffered by him.  I’ll return yours to you, Ms Prokuda, so it doesn’t confuse anyone looking at the file.  That’s all I have to do?

MR BATTY:   Thank you, your Honour.

MS PROKUDA:   Thank you.

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