Australia: Queensland Land Court dismisses application for costs after determining conduct did not bear the hallmarks of frivolity or vexatiousness

In brief

The case of The Trust Company Limited v Valuer-General [2017] QLC 29 involved an application for costs in the Queensland Land Court. The issue before the Court was whether an order for costs on the standard basis should be made in favour of the Valuer-General, following the Trust Company Limited filling a notice of discontinuance that was not consented to.

The Appellant withdrew from an appeal against a decision of the Valuer-General following a joint meeting of experts. The Valuer-General sought costs on the basis that the Appellant had engaged in vexatious or frivolous conduct that necessitated its participation in needless interlocutory proceedings which incurred unwarranted costs.

The Court found that it was entirely reasonable for the Appellant to withdraw from the proceedings following a re-evaluation of prospects after the experts' meeting. The Appellant had not behaved in a frivolous or vexatious manner by promptly providing notice of its intention to withdraw from the proceeding.

The Valuer-General engaged expert witnesses and participated in interlocutory proceedings in response to the Appellant's actions

The parties attended a preliminary conference before the Judicial Registrar within two months of the Appellant filing a Notice of Appeal. The matter was listed for a directions hearing at which interlocutory orders were made. The parties exchanged lists of documents and the Appellant served its grounds of appeal within a month of the directions hearing.

Soon after the Valuer-General filed and served its statement of facts, matters and contentions. The matter was listed for review on 10 June 2016 and expert witnesses were named. A consent order was made requiring, among other things, a meeting of the experts. The Appellant wrote to the Valuer-General four days after the meeting to seek its consent to withdraw from the proceedings.

The Valuer-General claimed costs on the basis that it was forced to incur harm by responding to the Appellant's frivolous or vexatious conduct

The Valuer-General made submissions that the Appellant's participation in interlocutory steps prior to seeking to withdraw the appeal caused harm and amounted to frivolous or vexations conduct. The Valuer-General's submissions specifically argued that the Appellant's conduct forced the following to occur:

  • proceedings that could have been avoided if the Appellant withdrew at the conclusion of the Court supervised preliminary conference;
  • the unreasonable, unnecessary and unjustified preparation of a response in the proceedings;
  • an inappropriate and inefficient use of the Court's resources.

The Court found that frivolous proceedings and vexatious proceedings are not the same thing. The Court stated that a proceeding is frivolous if it is brought without any real prospect of success, whereas a proceeding is vexatious if it is brought with a purpose of embarrassing or prejudicing the other party.

Whilst the Court has an unfettered discretion to award costs its decision must be supported by an explanation and have been made for compensatory rather than punitive purposes

The relevant basis for the Court's power to award costs is under section 34 of the Land Court Act 2000. Rule 18 of the Land Court Rules 2000 relevantly provides that if an Appellant withdraws from proceedings, the Court may order the Appellant to pay the costs of the party to whom the discontinuance or withdrawal relates if the party has not consented to the discontinuance and the costs of the other party are caused by the discontinuance or withdrawal.

The Court noted that whilst section 34 of the Land Court Act 2000 provides the Court with unfettered discretion to award costs it is a decision that must be exercised judicially and be supported by explanation and substantiation.

The Court held that the power to award costs is not punitive. It is a compensatory power that seeks to award costs to the successful party to cover the expenses it has incurred as a consequence of the legal proceedings. The Court held that the engagement of an expert and that expert's attendance at a meeting of the parties amounted to a serious commitment.

The Valuer-General drew the Court's attention to decisions in which costs were awarded for various failings on the behalf of particular parties

The Valuer-General made submissions citing that the Land Appeal Court has generally emphasised the desirability of easy access to the Land Court to air grievances. The Valuer-General cited a number of cases in which the Court held that such access should be available without fear or costs being awarded except in special circumstances.

The Valuer-General's submission also drew the Court's attention to two cases in which costs were awarded. In Chief Executive, Department of Natural Resources and Mines v Sabina Three Gorges Corporation Ltd [2001] QLC 26 the Court awarded costs after finding that the Appellant's withdrawal was driven in part by a failure of strategy which treated the proceedings as a test case.

In Permanent Trustee Australia Ltd as Trustee and Anor v Department of Natural Resources and Mines [2002] QLC 93 the Court awarded costs after a notice of discontinuance was filed 10 days prior to a set hearing date, without explanation and after several prior adjournments and interlocutory proceedings.

The Court held that the cases cited by the Valuer-General were of little utility to the current proceedings.

The Court found that the Appellant acted promptly and reasonably after re-evaluating its position following the joint experts' meeting

The Court found that the Appellant acted promptly by filing the notice of discontinuance within four business days of the experts' meeting. The Court held that it was reasonable to conclude that the Appellant had given proper consideration to its prospects following the joint expert meetings.

In light of these findings the Court held that there was no material before it that would satisfactorily support a determination that the appeal against the Valuer-General's valuation was frivolous, or doomed to fail before it was commenced. Accordingly, the Court ordered that the application for costs be refused.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Ian Wright
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions