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
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
In the second proceeding, the Court ordered YFG pay two-thirds
of Fabcot's costs of the Merits Appeal (the Costs
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
"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
YFG was satisfied with the above orders, however Fabcot was
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:
Fabcot was required to prepare and file a costs application to
recover its costs in the absence of a compromise;
YFG delivered its submissions in reply late;
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
The substantive appeal was very costly for the parties;
Fabcot made a Calderbank offer, which was rejected by
There was no sound reason for excluding the costs of the
appearance of junior counsel at the hearing of the costs
Decision: Held, in allowing the application in
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.
Both parties were guilty of non-compliance with the orders made
concerning the filing and serving of material. Nothing turned on
The cost of the litigation in the Merits Appeal were dealt with
in the Orders made in the Costs Dispute Judgment.
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.
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.
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.
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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Many retail leases include a covenant to trade, requiring the tenant to open the premises for trade during certain hours.
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