Toowoomba Regional Council v Wagner Investments Pty Ltd

Toowoomba Regional Council sought to appeal against the refusal of the primary judge on the appeal to the Planning and Environment Court to set aside certain infrastructure charges. The Council's appeal was partially successful, with the traffic trunk infrastructure charges being reinstated, but the stormwater infrastructure charges were not. One of the grounds of appeal was based on the Council's contention that the primary judge's legal approach was in error, though the Council did not obtain leave in respect of this ground. A significant amount of time during the hearing of the application for leave to appeal was devoted to discussing the primary judge's legal approach.

The central legal issues revolved around whether the outcome of the appeal could be characterised as "contestable," particularly in light of the partial success and the fact that the ground concerning the primary judge's legal approach was not pursued further. Another issue was whether, given the nature of the appeal and the outcome, the Council was entitled to recover costs for both the application for leave to appeal and the appeal itself. The court had to balance the partial success of the appeal against the fact that one of the grounds was not pursued further, and consider whether the significant time spent on the legal approach issue warranted the recovery of costs.

The court held that the outcome of the appeal should be characterised as "contestable," primarily due to the partial success and the fact that the Council did not obtain leave on one of the grounds of appeal. However, because the appeal resulted in a reinstatement of some charges, the court determined that the Council was entitled to recover costs. The court held that the respondents must pay two-thirds of the appellant's costs of the application for leave to appeal and the appeal, reflecting the partial success and the nature of the appeal.