Stevenson Group Investments Pty Ltd v Nunn & Ors [2012] QPEC 7

06/12 STEVENSON GROUP INVESTMENTS PTY LTD v NUNN & ORS [2012] QPEC 7

Application for costs – whether proceedings frivolous or vexatious – basis for assessment of costs – s.4.1.23 Integrated Planning Act 1997

Facts: These were two applications for costs pursuant to s.4.1.23 of the IPA resulting from an Order for summary judgment made against the Applicant in December 2001.

The first application was that of various Respondents ("Tangalooma"). The other was by the Council which sought only the costs thrown away on the adjournment of the hearing. Tangalooma's primary submission was that the Applicant pay its costs of and incidental to the entire proceeding on the grounds that the proceedings were frivolous or vexatious. It also sought those costs on an indemnity basis.

Tangalooma relied on three grounds to claim that the proceeding was frivolous or vexatious, namely the fact that summary judgment was given in its favour on the basis that all facts alleged by the Applicant were assumed to be true, which demonstrated that the proceeding were wholly unmeritorious and devoid of any prospect of success or utility; that the Applicant proceeded with the action in the face of notice from Tangalooma as to its views as to the poor prospects of success, and that costs would be claimed; and the history of the conduct of the proceeding demonstrated disregard by the Applicant for its obligations and implied undertakings to the Court.

Decision: The Court held that:

1. The Court was not prepared to find that the proceeding was commenced other than in good faith, however misplaced that may have been.
2. The proceeding did attract the categorisation as frivolous or vexatious. In seeking the declaration, the arguments made were such that there was no reasonable basis for starting it. It had no reasonable prospects of success from the outset, caused Tangalooma serious and unjustified trouble and harassment having regard to its impact not its motivation.
3. Tangalooma was faced with an application for discretionary relief in the form of a declaration. Even had it thought an earlier application for summary judgment was warranted, it was faced with repeated pleading amendments right up to trial. The fact that, in hindsight, at another point in the proceeding there may have been afforded an opportunity to make an application for summary judgment which was not availed of, did not, without more, render the party disentitled to costs it may otherwise be entitled to.
4. Conscious of the importance of the public policy considerations behind s.4.1.23, the Court was satisfied that the circumstances of the case warranted the payment of Tangalooma's costs by the Applicant.
5. The granting of indemnity costs was not appropriate.

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