In brief

The case of Council of the City of the Gold Coast v Ashtrail Pty Ltd & Anor (No.3) [2019] QPEC 27 concerned an application made by two inter-related companies (Respondents) with respect to orders made by the Planning and Environment Court on 9 May 2019. Those orders were made to facilitate the hearing of a costs application made by the Council of the City of the Gold Coast (Council), which concerned the Planning and Environment Court's determination of an enforcement proceeding commenced by the Council against the Respondents that was decided on 29 March 2019.

The Respondents argued that if the costs hearing was to proceed, there would be a risk of costs being wasted, as the orders subject to the enforcement proceeding were stayed by the Planning and Environment Court pending the determination of the Respondents' application for leave to appeal to the Court of Appeal.

The Court ultimately decided to vacate the orders that required the Respondents to file and serve written submissions and a reply, and varied the order that required the Respondents to file and serve affidavit material.

Background

The Council commenced an enforcement proceeding in the Planning and Environment Court seeking declaratory relief and consequential enforcement orders against the Respondents with respect to alleged non-compliance with particular conditions of a development permit for a material change of use. The Court ordered that the Respondents comply with the development approval conditions. 

The Respondents sought leave to appeal the decision to the Court of Appeal. In light of that application to the Court of Appeal, the Respondents made an application to the Planning and Environment Court to stay the original orders pending the determination of the application for leave to appeal, and the determination of the appeal if leave was granted. The Court ultimately decided to stay the original orders.

One day after the Respondents filed the application to stay the operation of the Planning and Environment Court's enforcement orders, the Council made an application to the Planning and Environment Court seeking costs associated with the enforcement proceeding and, following which, the Court made orders to facilitate a costs hearing. 

Orders concerning the costs hearing

The Court made the following orders with respect to the costs of the enforcement proceeding:

Order 1 – By 24 May 2019, the Council is to file and serve any affidavit material on which it intends to rely.

Order 2 – By 21 June 2019, the Respondents are to file and serve any affidavit material on which it intends to rely.

Order 3 – By 12 July 2019, the Council is to file and serve written submissions with respect to costs.

Order 4 – By 2 August 2019, the Respondents are to file and serve written submissions with respect to costs.

Order 5 – By 17 August 2019, the Council is to file and serve any written submissions in reply.

Order 6 – The matter is to be set down for a one day hearing on 9 September 2019.

Court had concern with the notice given by the Respondents 

The Respondents put the Council on notice of their intention to vacate the cost orders on 18 June 2019, three days before the Respondents were required to file and serve any affidavit material on which they intended to rely, and three weeks after the Council had filed and served its affidavit material. 

The Court noted, amongst other matters, that the Respondents had given no reasonable explanation as to why they decided to wait until 18 June 2019 to put the Council on notice of their intention to have the cost orders vacated. The Court further noted that the Respondents had ample time to advise the Council that if their stay application was successful, they would then seek to vacate the cost orders. 

The Court also found that the Council suffered detriment as a result of the Respondents' conduct as it incurred costs in preparing the affidavit material that was filed and served on the Respondents. Additionally, the Court found that if the cost orders were vacated, the Respondents would have a tactical advantage over the Council as they would be in possession of the affidavit material for an indeterminate period of time before having to respond to the Council.

Court ordered that certain orders be vacated

The Respondents argued that if adverse cost orders were made against them, and in turn their leave to appeal in the Court of Appeal was successful, there would be flow on consequences for any cost orders made by the Court. The Court noted that although the litigation process poses a risk that some of the costs expended by the parties will be wasted, all reasonable steps ought to be taken to avoid unnecessary and avoidable costs. The Court noted that such variables are finely balanced. 

In balancing the risk, the Court found that it is ideal to address costs at a time close to the end of the substantive proceedings, such as the end of the enforcement proceeding. Additionally, the Court considered it appropriate to consider matters relating to the Respondents' late notice with respect to their application to vacate the cost orders. 

On balance, the Court found that even in light of the Respondents' late notice, it is in the interests of both parties to adopt a course of action that will reduce the risk of wasted time and money. As a consequence, the Court made the following orders:

  • Orders numbered 3 – 6 be vacated;

  • the issue of costs thrown away as a consequence of the adjournment be reserved, as the Council incurred unnecessary costs by complying with order number 1; and

  • the time frame in which the Respondents are required to file and serve their affidavit material be varied to 4 pm 25 June 2019.

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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