Costs application dismissed following withdrawal of an application in pending proceeding

In brief - Developer unsuccessful in pursuing costs order

The case Rintoul & Ors v Brisbane City Council [2013] QPEC 45 involved an application for costs by a developer, Greengate Property Group, against a group of submitters, Matthew Rintoul, Debra Venables, Jantine Boers, Christine Clift, Wayne Clift, Vincent Crowley, Joanne Greenhill, Paul Hargreaves, Anthony Newman, Gary Van-Ooy, Leonie Van-Ooy, Rodney Ward and Eugene Zakrjevsky ("the submitters").

The submitters commenced a submitter appeal in the Queensland Planning and Environment Court against the Brisbane City Council’s approval of a development application for an integrated care-based village.

The appeal was set down for hearing in the June 2013 sittings, but was removed from the sittings as a result of the submitters bringing an application in pending proceeding seeking, amongst other things, a declaration that the development approval was invalid and of no legal effect and an order that it be set aside.

The submitters subsequently discontinued their application during the course of the hearing of the submitters' application. Greengate made a costs application against the submitters in respect of their application, which was dismissed by His Honour Judge Rackemann.

Case

This case involved an application for costs by a developer Greengate Property Group against the submitters in respect of their application, filed during the course of a submitter appeal, which was subsequently discontinued.

Facts

Submitters sought declaration that development approval was invalid, but subsequently discontinued during argument at the hearing

The submitters commenced an appeal against the development approval granted by the council to Greengate. The appeal was set down for hearing in the June 2013 sittings, but was removed from the sittings as a result of the submitters' application.

Prior to the hearing of the submitters' application, the council and Greengate wrote to the submitters on a number of occasions inviting the submitters to desist from pursuing their application. Greengate also put the submitters on notice of its difficulties with the submitters' application and the effect of their application.

The submitters' application was heard on 21 May 2013. During argument at the hearing of the submitters' application, the submitters decided to discontinue their application.

Developer advanced arguments for award of costs

Greengate made a costs application against the submitters in respect of the submitters' application under the now superseded costs provisions pursuant to which the court only had jurisdiction to award costs in limited circumstances. Greengate submitted that the jurisdiction to award costs arose on two bases:

• The submitters, in filing and partly prosecuting their application, failed to properly discharge their responsibilities in the proceeding (Section 457(2)(i) of the Sustainable Planning Act 2009) ("the first argument").

• The submitters' application was frivolous or vexatious (Section 457(2)(a) of the  2009) ("the second argument").

Developer argued that submitters failed to discharge their responsibilities in the proceeding

In support of the first argument, Greengate relied upon the implied undertaking in rule 4(3) of the Planning and Environment Court Rules 2010, for a party to act expeditiously, having regard to the purpose of the rules by reference to rule 4(1). Greengate submitted that the implied undertaking was breached for the following reasons:

• The submitters' application would not have advanced the matter in such a way which resulted in the determination of the issues expeditiously.

• The submitters' application lacked utility.

• There was a delay of five weeks between when the submitters' application was foreshadowed and when it was brought.

• The submitters' application was brought in the face of correspondence pointing out the difficulties which were subsequently raised at the hearing and resulted in the discontinuance of the submitters' application.

• Greengate was put to the expense of preparing to meet the submitters' application, which was ultimately discontinued.

Developer argued that submitters' application was frivolous or vexatious

In support of the second argument, Greengate relied upon the following:

• The public notification argument was completely without merit.

• The submitters could not have established any error which would render the council's decision invalid.

• The relief would have been refused, on discretionary grounds, given the lack of utility in the submitters' application.

Decision

Was there a breach of implied undertaking by the submitters?

His Honour Judge Rackemann was not persuaded that there was a breach of the implied undertaking by the submitters as contended by Greengate in that:

• The submitters were entitled to agitate available and arguable points of law/jurisdiction.

• There was no lack of expedition, notwithstanding the five week delay.

• The discontinuance of the submitters' application, the fact that their application had its difficulties and was brought on notice of such difficulties, and the apparent absence of practical utility of the relief sought under the submitters' application, did not constitute a breach of the implied undertaking.

Was the submitters' application frivolous or vexatious?

His Honour also was not persuaded that the submitters' application was frivolous or vexatious for the following reasons:

• Despite the apparent absence of practical utility of the relief sought under the submitters' application, in His Honour's view, their application was not unarguable or doomed for that reason.

• The submitters' challenge on the validity of the council's decision turned on a question of construction of the statute, as to whether a decision which was subject to an undetermined merits review was susceptible to a finding that it was void and of no effect. In His Honour's view, that part of the submitters' application was not so unarguable as to render their application doomed for that reason.

• Whilst the public notification argument did not appear to have much merit (if any), even if it were so bad as to be unarguable, given that it was only one argument to be relied on by the submitters, in His Honour's view, it would not render the submitters' application as a whole frivolous or vexatious.

Held

The application for costs was dismissed.