Zaitsev v Building Appeals Board (Costs)

The case of Zaitsev v Building Appeals Board (Costs) involved a plaintiff seeking to recover costs from a second defendant, the Building Appeals Board, in a judicial review proceeding. The plaintiff had successfully challenged the decisions of the second defendant and sought costs under the compensatory principle, arguing that the second defendant had no active participation in the proceeding and no contradictor. The case was heard in the Supreme Court of Queensland. The plaintiff sought an indemnity certificate for appeal costs under the Appeal Costs Act 1998.

The court was required to decide whether the second defendant's lack of active participation and contradictor justified the award of costs under the compensatory principle. The court also had to consider whether the plaintiff was entitled to an indemnity certificate for appeal costs, and whether the ‘usual order’ as to costs applied in this case. The court had to balance the principles of cost recovery and the potential deterrence effect on public bodies from litigating against them.

The court found that the second defendant had not actively participated in the proceeding and had no contradictor, which justified the award of costs to the plaintiff under the compensatory principle. The court also found that the ‘usual order’ as to costs did not apply in this case, as the second defendant had not acted reasonably in bringing the proceeding. The court exercised its discretion under the Civil Procedure Act 2010 to award costs to the plaintiff and granted an indemnity certificate for appeal costs under the Appeal Costs Act 1998. The court noted that the Hardiman position, which provides for indemnity costs in certain cases, was not applicable in this case as the plaintiff had not been successful in the proceeding against the first defendant.

The court ordered that the second defendant pay the plaintiff's costs of the proceeding, and that an indemnity certificate be granted for the plaintiff's appeal costs. The court also noted that the second defendant's conduct in bringing the proceeding was unreasonable and had potentially deterred the plaintiff from pursuing their rights. The decision highlights the importance of public bodies acting reasonably in litigation and the potential consequences of unreasonable conduct.