Australia: 46/14 Yfg Shopping Centres Pty Ltd v Brisbane City Council & Ors (No 3) [2014] QPEC 56

P&E Court Updates – September 2014

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(R S Jones DCJ - 23 September 2014)
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Planning & environment – costs – section 457 of Sustainable Planning Act 2009 – where co-respondent successful in defeating an appeal by the appellant – where the Court ought exercise its discretion to award costs – whether the costs order in favour of the co-respondent ought be limited

Facts: This proceeding relates to two earlier proceedings, which concerned a dispute about a centre development in Brisbane. In the first proceeding, the Court dismissed YFG Shopping Centres Pty Ltd's (YFG) appeal against Brisbane City Council's decision to approve Fabcot Pty Ltd's (Fabcot) application for a shopping centre and other centre activities (including a Masters Home Improvement Centre) on land located on the corner of Stafford and South Pine Roads at Everton Park (the Merits Appeal).

In the second proceeding, the Court ordered YFG pay two-thirds of Fabcot's costs of the Merits Appeal (the Costs Dispute).

This proceeding was concerned with an application by Fabcot against YFG, seeking its costs of the Costs dispute matter. It was brought in response to the following Orders made in the Costs Dispute Judgment:

"5. As to the costs of these applications I would be inclined to order that YFG Shopping Centres Pty Ltd is to pay Fabcot's Pty Ltd's costs of the applications dealt with on 4 August 2014 but such costs be limited to the costs of preparing its initial written submission in support of its application and in reply to the submissions made on behalf of YFG Shopping Centres Pty Ltd;
6. I will hear further from the parties if necessary before finalising Order five..."

YFG was satisfied with the above orders, however Fabcot was not.
Fabcot submitted that YFG should pay all of its costs of the Costs Dispute application on a standard basis. Fabcot relied on the following six reasons:

  1. Fabcot was required to prepare and file a costs application to recover its costs in the absence of a compromise;
  2. YFG delivered its submissions in reply late;
  3. The applications made by the parties raised new issues for determination by the Court as a result of the amendments to section 457 of the Sustainable Planning Act 2009 (SPA);
  4. The substantive appeal was very costly for the parties;
  5. Fabcot made a Calderbank offer, which was rejected by YFG; and
  6. There was no sound reason for excluding the costs of the appearance of junior counsel at the hearing of the costs application.

Decision: Held, in allowing the application in part:

  1. That a compromise was unable to be reached about costs might be relevant in considering YFG's conduct concerning the Calderbank offer, however it is not a relevant consideration in its own right.
  2. Both parties were guilty of non-compliance with the orders made concerning the filing and serving of material. Nothing turned on that non-compliance.
  3. The cost of the litigation in the Merits Appeal were dealt with in the Orders made in the Costs Dispute Judgment.
  4. There was no requirement for senior and junior counsel to appear at the Costs Dispute hearing. The emphasis ought to be on what is adequate to enable justice to be done and not on what might be considered necessary to ensure maximum success.
  5. The mere existence of a Calderbank offer that equalled or bettered the final result for the other party did not guarantee a successful costs application, because the costs regime under the SPA is different to the regime under the Uniform Civil Procedure Rules 1999.
  6. There was no evidence presented to the Court as to what was a reasonable assessment of the costs. However, the Court had a high level of confidence that YFG's counter-offer to Fabcot's Calderbank offer was insufficient and did not adequately recognise and address the real exposure to an adverse costs order faced by YFG.
  7. Having regard to Fabcot's level of success on its application and YFG's comparative lack of success and upon consideration of the matters raised by the parties, Fabcot was entitled to two-thirds of the costs of its costs application, but the costs of appearances were limited to that of its senior counsel and instructing solicitor.

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