In brief
The case of
MC Property Investments v Unity Water (No.2) [2018] QPEC 1 concerned an application to the Planning and Environment Court by the Respondent distributor-retailer for costs following its success in defending an earlier challenge brought by the Appellant against an infrastructure charges notice.
The Court found that the Appellant had no reasonable prospects of success in its appeal against the infrastructure charges notice and held that the Appellant should pay the Respondent's costs, including those associated with the costs application.
Appeal against the Respondent's infrastructure charge notice
The Appellant requested that the Respondent internally review the relevant infrastructure charges notice. The Respondent decided not to withdraw the infrastructure notice. The Appellant appealed the Respondent's decision to the Planning and Environment Court. The Court dismissed the appeal for the following reasons:
- the Appellant had failed to establish any of the grounds in section 99BRBO(3) of the South East Queensland Water (Distribution and Retail Restructuring) Act 2009;
- the Appellant had erroneously focused on the concept of "additional demand" in section 99BRCJ of the South East Queensland Water (Distribution and Retail Restructuring) Act 2009; and
- the Appellant had relied on a "highly speculative argument" which purported that the development did not create additional demand on truck infrastructure despite there being an additional 19 connections to the trunk infrastructure network as a result of the development.
Having been successful in the appeal, the Respondent made an application for costs on a standard basis. The Appellant opposed the costs application and referred to the Respondent's submission as being a "
cheap shot" and that there was "
cynicism implicit in the Respondent's submission" (see paragraph [
2]).
Relative success of the parties
The Court noted its broad discretion to award costs and that it is to be exercised judicially. The Court acknowledged that the success of a party is not a determinative factor but it is clearly relevant and can be a significant consideration in some cases.
The Court found that "
the Appellant never had any reasonable prospects of success" and that the Respondent enjoyed complete success in the appeal, which it was obliged to contest (see paragraph [
9]).
On that basis, the Court held that the Appellant should pay the Respondent's costs on a standard basis.
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