YFG Shopping Centres Pty Ltd v Brisbane City Council & Ors (No 2)
[2014] QPEC 43
•15 August 2014
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
YFG Shopping Centres Pty Ltd v Brisbane City Council & Ors (No 2) [2014] QPEC 43
PARTIES:
YFG SHOPPING CENTRES PTY LTD
(applicant/appellant)
and
BRISBANE CITY COUNCIL
(respondent)
and
FABCOT PTY LTD
(applicant/co-respondent)
and
CHIEF EXECUTIVE, ADMINISTERING THE TRANSPROT INFRASTRUCTRE ACT 1994
(co-respondent by election)
FILE NO/S:
237/13
DIVISION:
Planning & Environment
PROCEEDING:
Hearing of applications
ORIGINATING COURT:
Planning & Environment Court of Queensland, Brisbane
HEARING DATE:
4 August 2014
DELIVERED ON:
15 August 2014
DELIVERED AT:
Brisbane
JUDGE:
RS Jones DCJ
ORDER:
1. The application of Fabcot Pty Ltd is successful in part.
2. The application by YFG Shopping Centres Pty Ltd is successful in part.
3. YFG Shopping Centres Pty Ltd is to pay two thirds of Fabcot Pty Ltd’s costs of the appeal dealt with by this court on 18, 19, 20, 23, 24, 25, 26 and 27 September 2013.
4. Fabcot Pty Ltd is to pay YFG Shopping Centres Pty Ltd any of its costs thrown away on 26 March 2014 and 8 April 2014.
5. As to the costs of these applications I would be inclined to order that YFG Shopping Centres Pty Ltd is to pay Fabcot Pty Ltd’s costs of the application dealt with on 4 August 2014 but such costs be limited to the costs of preparing its initial written submission in support of its application and in reply to the submissions made on behalf of YFG Shopping Centres Pty Ltd.
6. I will hear further from the parties if necessary before finalising order 5. The parties are to notify my associate within 7 clear days from the date of publication if further hearing on this issue is required.
CATCHWORDS:
PLANNING & ENVIRONMENT – COSTS – Section 457 of Sustainable Planning Act 2009 – where Fabcot Pty Ltd successful in defeating an appeal by YFG Shopping Centres Pty Ltd – where the court ought exercise discretion to award costs
Sustainable Planning Act 2009
Oshlack v Richmond River Council [1998] 193 CLR 72: (1998) HCA 11, considered
YFG Shopping Centres Pty Ltd v Brisbane City Council & Ors [2013] QPEC 59, referred to
Cox & Ors v Brisbane City Council & Anor (No 2) [2014] QPEL R 92: [2013] QPEC 78, considered
Mio Art Pty Ltd v Macequest Pty Ltd & Ors (No 2) (2013) QSC 271
COUNSEL:
Mr A N Skoien for the applicant/appellant
Mr C L Hughes QC with Mr M A Williamson for the applicant/co-respondent
SOLICITORS:
Barry Nilsson Lawyers for the applicant/appellant
Mr Chadwick, solicitor from Brisbane City Legal Practice for the respondent Council
Mr Connor O’Meara solicitors for the applicant/co-respondent
No appearance on behalf of the co-respondent by election
This proceeding was concerned with two applications for costs. An application by Fabcot Pty Ltd (Fabcot) seeking favourable cost orders against YFG Shopping Centres Pty Ltd (YFG) and a similar application by YFG against Fabcot. For the reasons set out below the orders of the court are:
1. The application of Fabcot Pty Ltd is successful in part.
2. The application by YFG Shopping Centres Pty Ltd is successful in part.
3. YFG Shopping Centres Pty Ltd is to pay two thirds of Fabcot Pty Ltd’s costs of the appeal dealt with by this court on 18, 19, 20, 23, 24, 25, 26 and 27 September 2013.
4. Fabcot Pty Ltd is to pay YFG Shopping Centres Pty Ltd any of its costs thrown away on 26 March 2014 and 8 April 2014.
5. As to the costs of these applications I would be inclined to order that YFG Shopping Centres Pty Ltd is to pay Fabcot Pty Ltd’s costs of the application dealt with on 4 August 2014 but such costs be limited to the costs of preparing its initial written submission in support of its application and in reply to the submissions made on behalf of YFG Shopping Centres Pty Ltd.
6. I will hear further from the parties if necessary before finalising order 5. The parties are to notify my associate within 7 clear days from the date of publication if further hearing on this issue is required.
Background
Fabcot held the benefit of a Negotiated Decision Notice issued by the Brisbane City Council (the Council) on 18 December 2012 which, subject to a number of conditions, approved:
(i) A significant Woolworths supermarket and a number of associated speciality shops;
(ii) A large format hardware store bearing the “Masters” brand;
(iii) A proposed new street called Everton Avenue which would run, broadly speaking, in a south westerly direction from Stafford Road opposite Cutbush Road through to the north western frontage of the site to South Pine Road;
(iv) Three medium density residential sites two of which would be located on opposite sides of the proposed Everton Avenue opposite Cutbush Road and one to be located on the south western section of the site fronting South Pine Road.
The subject site is situated at 768 Stafford Road on the south eastern corner of the Stafford Road, South Pine Road and Griffith Street intersections in the near city suburb of Everton Park. The proposed development would essentially see the redevelopment of a large abandoned warehouse complex.
As mentioned above, approval was subject to a number of conditions imposed by the council and the chief executive responsible for the administration of the Transport Infrastructure Act (The chief executive). Accordingly, YFG was the only party in the substantive proceedings opposed to the proposed development. The grounds of appeal and particulars thereof were set out in my judgment which effectively disposed of the appeal in favour of Fabcot and I do not see any reason to repeat them here.[1] Suffice it to say that there were seven substantive issues raised by YFG in its notice of appeal and subsequent particularisation thereof:
[1]YFG Shopping Centres Pty Ltd v Brisbane City Council & Ors [2013] QPEC 59 at paras 13 and 14.
1. Alleged conflict with City Plan 2000;
2. Alleged conflict with the Everton Park Local Plan;
3. The consequence of out of centre development;
4. Urban design and visual amenity;
5. Stormwater flooding and drainage;
6. Traffic;
7. Sufficient grounds in the event of conflict with the Town Plan and, in particular, the need for the proposed Masters development.
It is tolerably clear that the central issue in the appeal was the proposed Masters development to the east of the proposed Everton Avenue which would effectively replace the much more significant residential development originally proposed.[2] According to Mr Skoien, counsel for YFG, the effective exclusion of any meaningful residential development east of Everton Avenue placed the proposal in such conflict with the Council’s planning scheme that it was “effectively insurmountable”.
[2]Ibid at paras 16 to 19.
On any objective view of it, Fabcot had successfully defended itself against YFG’s appeal. It is true that Fabcot may have lost some of the battles along the way but that does not detract from the overall success of Fabcot in my view, at least not to the extent of denying it any favourable costs orders.
Following the handing down of my judgment effectively disposing of the appeal, the issue of costs became contentious between all the parties save for the Council. It neither sought costs and no party sought costs orders against it. Accordingly the Council was excused from any further participation in these applications.
There was a dispute between YFG and the Chief Executive concerning costs but that was resolved between them and the Chief Executive was excused from any further participation. Accordingly, the only disputes left to be resolved were those between Fabcot and YFG
The primary relief sought
The relief sought by Fabcot was:
(a) An order that YFG pay its costs of an incidental to the appeal, to be assessed on the standard basis; or alternatively
(b) An order that YFG pay its costs of an incidental to the appeal arising out of the disputed issues identified in paragraph 15, subparagraphs (3), (4), (5), (6) and (7) of my decision in YFG Shopping Centres Pty Ltd v Brisbane City Council & Ors [2013] QPEC 59. (YFG Shopping Centres No 1).
The alternate relief effectively seeks that YFG pay Fabcot’s costs associated with the issues in dispute concerning out of centre development, urban design and visual amenity, stormwater flooding and drainage, traffic and the sufficient grounds dispute.
The relief sought by YFG was that Fabcot pay its costs of an incidental to the merits appeal or, in the alternative, limited to its costs associated with the disputed traffic issues. YFG also sought costs in respect of a number of court appearances subsequent to the handing down of the substantive judgment.
The current cost regime
Before turning to the specific provisions of the Sustainable Planning Act 2009 (SPA) dealing with costs it is necessary to bear in mind that the usual purpose of a costs order is not to punish the unsuccessful party but to indemnify the successful party, as far as is practicable, as to costs. In Oshlack v Richmond River Council[3] McHugh J relevantly said;
“… Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party, the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for costs of the unsuccessful litigation.”
[3]193 CLR 72 at para [67].
Generally speaking, those observations, express the underlying philosophy of costs following the event. In this context the Uniform Civil Procedure Rules 1999 (UCPR) provide in r 681:
“(1)Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise;
(2)Sub rule (1) applies unless these rules provide otherwise.”
That general rule does not apply to the hearing of appeals in this court. The costs of the substantive proceedings such as were involved here are expressly dealt with in s 457 of the SPA. That section relevantly provides:
“(1)Costs of a proceeding or part of a proceeding, including an application in a proceeding, are in the discretion of the court.
(2)In making an order for costs, the court may have regard to any of the following matters—
(a) the relative success of the parties in the proceeding;
(b)the commercial interests of the parties in the proceeding;
(c)whether a party commenced or participated in the proceeding for an improper purpose;
(d)whether a party commenced or participated in the proceeding without reasonable prospects of success;
(e)if the proceeding is an appeal against a decision on a development application and the court decides the decision conflicts with a relevant instrument as defined under section 326(2) or 329(2), whether the matters mentioned in section 326(1) or 329(1) have been satisfied;
(f)if the proceeding is an appeal to which section 495(2) applies and there is a change to the application on which the decision being appealed was made, the circumstances relating to making the change and its effect on the proceeding;
(g)whether the proceeding involves an issue that affects, or may affect, a matter of public interest, in addition to any personal right or interest of a party to the proceeding;
(h)whether a party has acted unreasonably leading up to the proceeding, including, for example, if the proceeding is an appeal against a decision on a development application, the party did not, in responding to an information request, give all the information reasonably requested before the decision was made;
(i)whether a party has acted unreasonably in the conduct of the proceeding, including, for example—
(i)by not giving another party reasonable notice of the party's intention to apply for an adjournment of the proceeding; or
(ii)by causing an adjournment of the proceeding because of the conduct of the party;
(j)whether a party has incurred costs because another party has introduced, or sought to introduce, new material;
(k)whether a party has incurred costs because another party has not complied with, or has not fully complied with, a provision of this Act or another Act relating to a matter the subject of the proceeding;
(l)whether a party has incurred costs because another party has defaulted in the court's procedural requirements;
(m)whether a party should have taken a more active part in a proceeding and did not do so.
(3)Subsection (2) does not limit the matters to which the court may have regard in making an order as to costs. …”
In Cox & Ors v Brisbane City Council & Anor (No 2)[4] his Honour judge Rackemann was concerned with an application for Costs under the current SPA regime. In paragraph 2 his Honour said:[5]
“… The discretion is an open one. It is not to be approached either on the basis that there is a presumption that costs follow the event (as is the general rule in other courts dealing with ordinary civil litigation) or on the basis that there is a qualified protection against and adverse costs order, as was previously the case in SPA.”
[4][2014] QPELR 92.
[5]Ibid para 2.
I respectfully agree with those observations. The predecessor to the current s 457 provided to the effect that each party to a proceeding was to bear its own costs but, in certain circumstances, cost orders could be made. By in large though, that exception depended upon being able to identify some untoward behaviour on the part of one of the litigants including, by way of examples, that the proceedings were brought primarily to delay or obstruct, because there had been failure to comply with court orders and where the party’s case could be fairly described as being frivolous or vexatious.
The philosophy underlying that cost regime has been clearly displaced by the amendments to s 457. The natural and ordinary words used in s 457 as it now stands makes it clear that there is no presumption that costs ought follow the event. However, that said, the discretion given to the court is now a very wide one and while the success of a party is not a determinative factor it is clearly a relevant consideration. And, in litigation of the type involved here, I consider it to be a significant consideration. It is not necessary to refer to the Explanatory Notes which were referred to and handed up during the course of argument to identify the intention of the Legislature regarding the amendments to s 457. The natural and ordinary meaning of the words used therein speak for themselves. In any event, in my opinion, the Explanatory Notes bear little resemblance to what was finally enacted in s 457.
The parties’ positions
YFG is the owner of two significant shopping centres in the general vicinity of the subject land. As I understand it, they are the centres known as the “Brookside” and “Stafford City” shopping centres. In Mr Skoien’s written submissions as to costs YFG’s interests in the litigation were described in these terms:[6]
“Firstly, while it is true that YFG has commercial interest, in the form of two major shopping centres in this location, the existence of those commercial interests will not be used against YFG. Just as a local resident has an interest in development decisions in a locality, a local shop keeper or shopping centre operator is entitled to have, and ventilate, very legitimate interests in such development decisions. The legitimate interests held by YFG in this case are well established by the fact that:
(a)YFG’s two shopping centres are relatively close to the subject land;
(b)The subject land is recognised as a key development site;
(c)The proposed development is a very substantial development involving predominantly retail development on parts of the subject land clearly identified in the planning scheme for substantial residential development; and
(d)The Stafford/South Pine Road intersection forms a key part of the local road network (which on any view of things, is already struggling to cope) and, importantly, forms part of the road network facilitating access by members of the public to the facilities and services offered at YFG shopping centres.”
[6]At paragraph 2.2.
In Mr Skoien’s submissions in reply:[7]
[7]At paragraphs 14 to 19: Refer also to oral submissions at T 1-25, 1-26 and T1-33 L23-27.
“… YFG does not understand why it is said that any commercial interest held by YFG played any part in the agitation of issues in the proceeding or in YFG bringing its appeal in the first place.
There is no evidence that YFG would stand to gain any commercial advantage from its opposition to the proposed development. There is no evidence that a large format hardware store would compete with YFG business (or the businesses in YFG’s shopping centres). Relevantly, the supermarket and specialty store components of the proposed development, which could be said to ‘compete’ with YFG’s businesses, were already the subject of a separate approval, which could not be challenged by YFG. There is no explanation as to why Fabcot could not have proceeded with that development sooner.
…
In the absence of considerations of these sorts, there is no reason to conclude that there is any significance attached to YFG’s commercial interests in two shopping centres in the general locality. YFG like any other member of the community, raised legitimate planning issues.
In particular, in the light of the above, there is no basis for the court to draw any inference against YFG, as suggested by Fabcot.” (Footnotes deleted).
In respect of these submissions a number of observations need be made. First, it is clear that even on YFG’s case it had a commercial interest in the outcome of the proceeding even if, as suggested in its written submissions, to ensure a more efficient “road network facilitating access by members of the public to the facilities and services offered as YFG shopping centres.” Second, that entities such as YFG act in their commercial interests is clearly no basis for drawing an adverse inference against it. Litigation in the Planning and Environment Court operates in the environment of a free enterprise market where business entities are expected to make decisions based on achieving best economic outcomes. As I read it, s 457(2)(b) does not require that there be an identifiable untoward commercial motive. What is relevant, if the court considers it so, is the fact that YFG had a commercial interest in the outcome of the proceeding. Third, it is accepted that a number of the issues raised by YFG were legitimate issues supported by appropriate expert evidence.
All of that said though, this case bears no resemblance to the matters considered by his Honour Judge Rackemann in Cox & Ors. It is true that in that case two of the parties had some commercial interest in the proceeding. But it is clear by a reading of the decision that his Honour considered that matters such as the character and amenity of the local area were genuine concerns of all of the submitters and was supported by expert evidence. And, that while their views were not accepted by the court, matters of judgment were involved where “reasonable minds can differ”. This was not such a case. While I accept that YFG might have had legitimate interests, other than purely economic ones, in seeing the subject site appropriately developed it was, at the end of the day, a significant commercial entity with commercial interests in the general area that made a commercial decision to attempt to prevent the Masters development proceeding. Unlike the situation in Cox, this was not a case involving a member or members of a community having genuine concerns about negative impacts on amenity.
As I said earlier, on any objective view Fabcot has been the successful party in the litigation. Also, in this case it is my firm view that the only inference reasonably open was that YFG instituted its appeal intending, at least in part, to protect its undisclosed commercial interests. I was not taken to any material to indicate that YFG was acting in the public interest. In regard to s 457(2)(b) of the SPA there was no material which would indicate that YFG’s motive was to merely delay the proposed development. Its obvious intention was to stop the proposed Masters development which, I suppose, is the ultimate form of delay. Given YFG’s approach to the litigation I am unable to draw any other conclusion. In this context I consider the distinction between a “commercial competitor” and a “submitter with a commercial interest in the locality”[8] to be, in the circumstances of these proceedings, one of little, if any, significance.
[8]Transcript (T) 1-27 L3-12.
From my records, the matters raised by YFG in its appeal occupied eight sitting days. Numerous experts were called to address the issues raised and identified above in paragraph 4. They included:
· Two hydraulic engineers, one for Fabcot and one for YFG;
· One acoustic engineer called by Fabcot;
· Mr Chenoweth, an experienced environmental scientist and landscape architect called by Fabcot;
· Mr Isles, an architect called by YFG;
· Four traffic engineers. Mr Williams for the Chief Executive, Mr Beard for the Council, Mr Viney for Fabcot and Mr Pekol for YFG;
· Three economists. Mr Duane for Fabcot, Mr Norling for the Council and Mr Coghlin for YFG;
· Three town planners. Mr Schomburgk for Fabcot, Mr Brown for the Council and Mr Venn for YFG.
At the hearing of the substantive appeal Fabcot was represented by Mr C Hughes QC with Messrs B Job and M Williamson, instructed by Connor O’Meara solicitors and YFG was represented by Mr A Skoien of counsel instructed by Barry Nilsson Lawyers. It can be readily recognised that the costs to Fabcot and YFG would have been significant.
Fabcot’s position was fundamentally that, YFG was a commercial competitor who, acting in its commercial interest, instituted proceedings which it wholly or substantially lost. Relying on the matters identified in s 457(2)(a) to (f) and, in particular, subsections (a) and (b) it argued that it was entitled to its costs or in the alternative its costs associated with all of the issues raised in the appeal save for those concerning the conflict with City Plan 2000 and conflict with the Everton Park Local Plan. YFG says it is entitled to its costs, or at the very least Fabcot ought be denied a favourable cost order because:
1. Despite Fabcot’s and the Council’s continual denial that there was any conflict with the relevant Planning Scheme YFG established that there was and, accordingly, succeed in that aspect of the appeal notwithstanding failing to convince the court to grant the relief sought;
2. In instituting and prosecuting its appeal YFG achieved a number of improvements in the proposed development which, among other things, were of public benefit. These included a better hydraulic outcome for the north eastern corner of the site but more significantly an improvement in the final design of the proposed Everton Avenue.
In its written reply YFG contended:[9]
“For the reasons set out in YFG’s outline of submissions dated 30 July 2014, YFG is entitled to be treated as an interested member of the public, which had a legitimate interest in ensuring that development in conflict with the planning scheme, involving the loss of residential development on this key site, was justified.
There is no basis for an awarding of costs against YFG. Further, given the clear conflict with the planning scheme and given the way in which the critical proposed development was modified, YFG was justified in bringing the matter before the court to ensure appropriate scrutiny and certainty. Accordingly, YFG ought be awarded part of its costs in the proceeding.”
[9]At paragraphs 20 and 21.
These assertions have to be seen in context. While it is immediately acknowledged that, contrary to the position of Fabcot and the Council, YFG established that there was indeed planning conflict and that the conflict was substantial, in my opinion, the economic evidence made it abundantly clear, when seen in the light of all of the other evidence (including that it was in the public interest to see this site redeveloped as soon as practicable), that there was sufficient need to warrant approval despite the conflict. In this context it is also of significance that the economic evidence of Messrs Duane and Norling was not seriously challenged whereas the evidence of Mr Coghlin, the economist relied on by YFG, lacked, in my view, objectivity. In this context I found Mr Coghlin’s evidence in respect of brand loyalty to be unconvincing and that the proposed Masters clearly met both of his threshold tests being brand loyalty and convenience. To put it bluntly, notwithstanding YFG’s success in identifying the conflict issues it had little prospect of meeting the cases of Fabcot and the Council about economic need and that therefore the proposed development ought be refused. Also in my view the hydraulic issues raised YFG were largely a side issue which would have been readily able to be addressed in the final design stage of development and that the urban design and visual amenity issues raised by YFG were also of little consequence in the overall context of the appeal. Indeed, in my substantive reasons I observed that these issues “raised hardly a mention in the appellant’s written and oral submissions at the conclusion of the hearing of the case”.[10]
[10]At paragraph 25.
It is true that during the course of the hearing, even up to a very late stage, the final design of Everton Park Avenue was being “massaged”. That said though, even when a final proposal acceptable to all but Mr Pekol was arrived at, YFG continued to maintain its opposition. In dealing with the substantive appeal I made the following observations:[11]
[11]At paragraphs 34, 35, 36 and 42.
“On balance, I agree with the conclusions reached by Messrs Beard, Viney and Williams to the effect that the traffic issue associated with the proposed development would not be sufficient to warrant refusal. It is clear that conditions in addition to those already required by the co-respondent by election may be required to deal with matters such as pedestrian safety and an additional left turn slip lane from Stafford Road into the proposed Everton Avenue, but that such further conditions would probably be required as not sufficient grounds for refusal.
The further joint report of the traffic engineers (exhibit 32) came into existence after Mr Pekol’s court report. It is clear from exhibit 32 and Mr Pekol’s evidence in chief that the only area left in dispute among the traffic engineers was the traffic impacts caused by the proposed development on the local road network and in particular at the “key” intersection at South Pine Road, Stafford Road and Griffith Street.
Traffic issues were not dealt with at all in any meaningful way in the appellant’s written submissions and were only dealt with in oral submissions with the bold assertion that there was no basis for finding that in the after development case there would be a non worsening on the local traffic network and in the event that there was no worsening result that was of itself not a ground to support the proposal. The first oral submission made by Mr Skoien fails to recognise or, at the very least, gives sufficient weight to the expert evidence of Mr Viney and Messrs Williams and Beard in particular. As to the second point, while a non worsening traffic result might not, of itself, positively support the proposal it is clearly an important consideration.
…
The onus of course is on the co-respondent to satisfy me that the traffic issues associated with the proposed development can be adequately dealt with. Advice primarily on the evidence of three very experienced traffic engineers I consider that they can be. At the end of the day Mr Pekol had no sound basis for doubting the conclusions reached by the other traffic engineers and the mere “wondering” about potential issues that may or may not arise is not sufficient to offset the more probative evidence of the other traffic engineers. …” (Footnotes deleted).
The above passages make two things quite clear in my view. First, that any traffic issues would have been essentially resolved prior to development of the site without any intervention by YFG. That would have occurred as a consequence of the requirements of the Chief Executive in particular to ensure a non worsening situation at the subject intersections. Second, the position maintained by Mr Pekol against the by-pass proposal was, if not being without any basis, based on very tenuous grounds.
By reference to the matters set out above I considered that it may have been open to require YFG to pay all of Fabcot’s costs associated with the appeal. However, on balance, given YFG’s success in respect of the so called “conflict” issues I propose to, broadly speaking, adopt the course advocated by Fabcot in the alternative.
By reference to my substantive reasons, after setting out the background, the relevant issues were dealt with at pages 11 through to 36. Hydraulic, urban design and visual amenity and traffic issues occupied some 7 pages. The balance of the reasons were concerned with matters including conflict with the planning scheme, out of centre development, conflict with the Everton Park Local Plan and economic need. It would not be possible, and indeed in my view not appropriate, to analyse my reasoning in microscopic detail to determine exactly the extent of YFG’s success when compared to that of Fabcot. On balance I consider the most appropriate course of action is to adopt a relatively robust approach, while recognising that the “conflict” issues did occupy a significant amount of court time. As a consequence, I have reached the conclusion that YFG ought pay two thirds of Fabcot’s costs of the appeal.
YFGs costs “thrown away”
I can see no basis for awarding YFG costs in respect of any aspect of the hearing of the substantive proceeding. The discount applied to the orders made in favour of Fabcot recognises any success YFG had. However, YFG also sought its costs of a number of reviews and/or applications, essentially on the basis that those costs were thrown away because of the conduct of Fabcot. Those matters came before the court on 26 March, 8 April, 20 June and 27 June 2014.
Those proceedings were, as I recollect, primarily concerned with the ongoing conditions dispute between Fabcot and the Council and with changes to the proposed development which Fabcot contended were “minor” for the purposes of the SPA. All were dealt with quickly and were typically dealt with by draft orders with little, if any, controversy. It might well be as Mr Hughes QC senior counsel for Fabcot said, that these were “insignificant” when compared to the costs of the substantive hearing. But that is not to the point. If YFG did incur costs unnecessarily because of Fabcot’s conduct then, prima facie, it would be entitled to a favourable costs order.
On the material before me, as limited as it was on this topic, I am satisfied that YFG did incur costs on 26 March and 8 April 2014 which were effectively “thrown away” because of Fabcot’s failure to provide material, including plans, to the parties including YFG.
The minor change issue was dealt with by me on 26 May 2014. YFG also seeks its costs said to have been “thrown away” on 20 and 27 June 2014 on the basis that all of the outstanding matters between the parties should have been dealt with on 26 May. The remaining outstanding issues were the conditions dispute with the Council and costs.
In addition to finalising the minor change issue on 26 May 2014 I also made orders concerning the filing and serving of material leading up to the costs arguments to be heard on 4 and 5 August 2014. On 20 June 2014 I made orders concerning the conditions dispute and on 26 June made orders disposing of the substantive appeal by approving the proposed development subject to some 160 pages of conditions.
The costs arguments could not have been dealt with on 26 May 2014 and the orders made were intended to (and did) achieve an efficient hearing in August. Perhaps the issues concerning the conditions dispute could have been dealt with in May but I am not sufficiently convinced about that. It was my understanding that Fabcot and the Council and perhaps also the Chief Executive were still negotiating about them. Also, I was not taken to any material which explained YFG’s interest in the final conditions package and made it necessary to appear on either 20 or 27 June 2014. Judgment was given on 27 June by consent, YFG could have made its position known without the need for an appearance by a solicitor.
On balance I consider the only costs thrown away by YFG would be those on 26 March and 8 April 2014. Lest there be any doubt about it, YFG’s costs “thrown away” are those it incurred for work done but wasted as a result of Fabcot’s conduct.
I note that both parties have sought costs to include the costs “of and incidental” to and be assessed “on the standard basis”. In Mio Art Pty Ltd v Macequest Pty Ltd & Ors (No 2)[12] Jackson J considered that having regard to the relevant provisions of the UCPR such language is redundant. As his Honour noted, it was “undesirable” for the court to continue to make such orders for three reasons. First, the phrase “of and incidental to” was ambiguous. Second, the introduction of such words “is at best unnecessary and at worst introduces confusion as to the operation of an order made without those additional words.”[13] Third, the text of chapter 17A of the UCPR reveals a clear intention to avoid the need to make some of the forms of orders previously made as a matter of course under the prior statutory provisions.[14] Unless otherwise ordered, costs are to be assessed on the standard basis.
[12][2013] QSC 271.
[13]At paragraph 18.
[14]Ibid paragraph 19.
Turning to the cost of the application heard by me on 4 August 2014 I would make four observations. First, given the degree of Fabcot’s success it is entitled to some form of favourable costs order. Second, given that Fabcot was not entirely successful any cost order has to be moderated to reflect that. Third, counsel on both sides relied very heavily on their written submissions. Fourth, with absolutely no disrespect intended, it struck me that once the written submissions had been prepared junior counsel for Fabcot was not required. On balance I have decided that absent good reasons to the contrary, Fabcot’s costs associated with the application ought to be limited to the costs associated with preparing its initial written submissions and its submissions in reply.
For the reasons given the orders of the court are:
1. The application of Fabcot Pty Ltd is successful in part;
2. The application by YFG Shopping Centres Pty Ltd is successful in part;
3. YFG Shopping Centres Pty Ltd is to pay two thirds of Fabcot Pty Ltd’s costs of the appeal dealt with by this court on 18, 19, 20, 23, 24, 25, 26 and 27 September 2013;
4. Fabcot Pty Ltd is to pay YFG Shopping Centres Pty Ltd any of its costs thrown away on 26 March 2014 and 8 April 2014.
5. As to the costs of these applications I would be inclined to order that YFG Shopping Centres Pty Ltd is to pay Fabcot Pty Ltd’s costs of the application dealt with on 4 August 2014 but such costs be limited to the costs of preparing its initial written submission in support of its application and in reply to the submissions made on behalf of YFG Shopping Centres Pty Ltd.
6. I will hear further from the parties if necessary before finalising order 5. The parties are to notify my associate within 7 clear days from the date of publication if further hearing on this issue is required.
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