The case of Lyons v Olive & Anor  QPEC 62
concerned two applications in the Planning and Environment Court for costs arising out of a dispute between Andrew Lyons, Mark and Leanne Olive and Building Certification Consultants Pty Ltd over a development approval given by Building Certification approving building works on Mr and Ms Olive's land.
In the initial proceedings, the Court found that the development approval was void from the outset. Mr Lyons and Building Certification subsequently sought costs on an indemnity basis against each other.
The Court found that Building Certification's actions had caused unreasonable delay such as to warrant an adverse costs order being made against it. Building Certification was ordered to pay Mr Lyons' costs from 5 March 2015.
Mr Lyons contended for a favourable costs order on the basis that he was an innocent bystander and was successful in the proceedings and that Building Certification's conduct was unreasonable
Mr Lyons relied on the following in contending for a favourable costs order:
- He was an innocent bystander who was forced to bring the proceedings as a consequence of the conduct of Mr and Ms Olive and Building Certification.
- He had enjoyed a significant degree of success in the proceedings.
- Building Certification had incorrectly continued to maintain its position that it was not a proper party to the proceedings and imprudently rejected offers of compromise, as well as insisting on a deed being entered into which required Mr Lyons not to make any complaint to any relevant statutory authority in the future.
Building Certification contended for a favourable costs order on the basis that it was not a proper party to the proceedings and that Mr Lyons had acted unreasonably by insisting on indemnity costs against it
Building Certification's central argument was that it was not a proper party to the proceedings but nonetheless, it had acted reasonably by seeking to work towards a resolution. The Court dismissed this argument on the basis that if Building Certification was not notified of the proceedings, then any relief granted by the Court would "inevitably be set aside by virtue of the fact that the certifier had not been given the opportunity to be heard" [at ).
In contending for a favourable costs order, it was submitted by Building Certification that Mr Lyons had acted unreasonably by insisting on indemnity costs against them on 20 January, being the day after Mr Lyons reached an agreement with Mr and Ms Olive in relation to their further participation in this matter.
Court found that Building Certification's conduct was such as to warrant the making of an adverse costs order but that it did not warrant a costs order on an indemnity basis
The Court found that Building Certification's conduct in maintaining its position that it was not a proper party to the proceedings and its persistence with the requirement that a deed be provided in circumstances where that requirement was later abandoned, had caused the matter to drag on unreasonably.
The Court relevantly noted that there had been significant delay since 5 March 2015 after Mr Lyons, through his solicitors, put a proposition to Building Certification that agreement be reached concerning the substantive relief and that the issue of costs be reserved and dealt with at a later time before the Court if agreement was not able to be reached.
The Court, by reference to Cox & others v Brisbane City Council & another (No 2)  QPEC 78
and Paroz v Paroz & others (No 2)  QSC 157
, observed that costs would generally be payable on a standard basis unless there was some special or unusual feature which would warrant departure from the general proposition.
The Court found that the actions of Building Certification were such as to warrant the making of an adverse costs order. However, having regard to the conduct of Mr Lyons through his solicitors, the Court was not satisfied that it warranted a costs order on an indemnity basis to be made against Building Certification.
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.