Costs – where no reasonable ground for Council
starting proceeding – where no absence of good faith by
Council alleged – whether frivolous or vexatious
Costs – where proceeding frivolous – where
experienced litigant responsible for frivolous proceeding –
where frivolous allegation of development offence
Facts: This was an application in a pending
proceeding by the First and Second Respondents to strike out
paragraphs 5 to 11 of the Originating Application filed in the
proceeding and that Brisbane City Council pay those parties costs
on an indemnity basis.
The Second Respondent was a licensed building certifier employed
by the First Respondent.
In October 2008, the First Respondent was engaged by the Third
Respondents to undertake certification work in relation to a
dwelling to be built on a newly reconfigured suburban lot. The
Third Respondents submitted a development application for building
work to the First Respondent. On 11 June 2009, the Second
Respondent issued a decision notice approving the application.
The proceedings instituted by Council sought a declaration that
the First and Second Respondents had committed a development
offence pursuant to s. 578 of the Sustainable Planning Act
2009 (SPA) and various enforcement
When the proceeding first came on for review in May 2012,
Council was notified that an application would be brought by the
First and Second Respondents to strike out those parts of
Council's Originating Application which applied to them, on the
basis that those parties had not undertaken any
"development" within the meaning of that term in the SPA
and therefore could not have committed a development offence.
One week after the review, a strikeout application and
supporting affidavit was filed. 26 days after that, Council sought
advice about the merits of the Originating Application from Senior
Council. The advice from Senior Counsel, received four weeks later,
was that the First and Second Respondents could not have offended
and could not be liable for an enforcement order. Some four weeks
later, Council indicated to the First and Second Respondents that
it would not oppose the strikeout application.
It was in these circumstances that the First and Second
Respondents sought indemnity costs, which was resisted by
Decision: The Court held that:
There was no argument that the proceeding against the First and
Second Respondents as contained in the paragraphs to be struck out
was one that was not frivolous and vexatious.
The paragraphs sought to be struck out lacked substance so that
there was no reasonable basis for making the allegations in those
paragraphs and the trouble that they caused for the First and
Second Respondents was unjustifiable.
It was clear that the allegations ought never to have been made
and the case was unduly prolonged.
The relevant section of the SPA did not expressly indicate a
preference for costs on either a standard or indemnity basis once
the discretion to order costs was enlivened.
Alleging an offence against another party was a serious matter.
An experienced litigant such as the Council had an obligation to
consider properly whether to plead a development offence against
the First and Second Respondents. It was not suggested for Council
that the pleading was even arguable, which was a relevant
It was appropriate to award costs of this application on an
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