06/12 STEVENSON GROUP INVESTMENTS PTY LTD v NUNN & ORS
 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
Decision: The Court held that:
The Court was not prepared to find that the proceeding was
commenced other than in good faith, however misplaced that may have
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.
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.
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
The granting of indemnity costs was not appropriate.
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