In brief

The case of Stankovic v Brisbane City Council (No 2) [2015] QPEC 27 concerned cost applications made by Mr Stankovic and Brisbane City Council for an earlier appeal to the Planning and Environment Court against conditions imposed by the council for filling carried out by Mr Stankovic.

The court considered relevant matters from the earlier appeal, such as the "systematic and deliberate" conduct of Mr Stankovic and the almost complete success of the council and ordered Mr Stankovic to pay 85% of the council's costs of the earlier appeal and dismissed Mr Stankovic's application for costs.

There should be no presumption that costs should follow the event although the court's discretion to award costs is a broad one

Section 457 of the Sustainable Planning Act 2009 provides that the "costs of a proceeding, including an application in a proceeding, are in the discretion of the court." Whilst a number of matters are identified in section 457 which the court may have regard to in making a costs order, the court's consideration is not limited to those matters only.

The court in interpreting section 457 had reference to the court's earlier decisions of Altitude Corporate Pty Ltd v Isaac Regional Council (No 2) [2014] QPEC 55, Cox & Ors Brisbane City Council & Anor (No 2) [2013] QPEC 78 and YFG Shopping Centres Pty Ltd v Brisbane City Council & Ors (No 2) [2014] QPEC 43 and observed that no presumption should be made that costs should follow the event whilst noting that the court had a broad discretion and the success of a party was a relevant consideration.

The court dismissed the costs application as it found the allegations made by Mr Stankovic in support of the application were unsustainable and unmaintainable as well as scandalous and vexatious

In support of the costs application, Mr Stankovic alleged that the earlier appeal was triggered by the issuing of an inappropriate decision notice by the council and that Mr Stankovic was "the innocent victim of unlawful uses on his land that required restoration by carrying out the introduction of fill."

The court considered that Mr Stankovic's allegations lacked any evidential basis and, as such, rejected them. The court also rejected Mr Stankovic's unsubstantiated allegations of the council's unreasonable and inappropriate conduct concerning the earlier appeal.

Not only did the court find that Mr Stankovic's allegations were unsubstantiated, in the court's view, a number of them were "scandalous and vexatious", which were consistent with Mr Stankovic's unsatisfactory conduct in the earlier appeal. The court therefore dismissed Mr Stankovic's costs application.

The deliberate and systematic conduct of Mr Stankovic and the council's success in the earlier appeal resulted in Mr Stankovic being ordered to pay 85% of the council's costs in the appeal

In deciding whether to award costs against Mr Stankovic, the court took into consideration the council's success in the earlier appeal as well as Mr Stankovic's conduct from which the unlawful works arose and its consequences.

The court was of the view that "this was not a case of unintended unlawful works occurring; it was a deliberate and systematic course of conduct which resulted in a nuisance being caused to neighbouring properties. In that context, issues raised in this proceeding went beyond the personal rights and interests of the parties."

The court considered that the council had no other alternative but to proceed in the way that it did and therefore, it was appropriate that Mr Stankovic pay a significant proportion of the council's costs in the appeal.

Since Mr Stankovic achieved some success in the earlier appeal by not having to undertake excavation works in relation to the easement, the court ordered Mr Stankovic to pay 85% of the council's costs in the appeal.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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