Comiskey & Anor v Fairhill Coking Coal Pty Ltd (No 2) [2026] QLAC 6

LAND APPEAL COURT OF QUEENSLAND CITATION: Comiskey & Anor v Fairhill Coking Coal Pty Ltd (No 2) [2026] QLAC 6 PARTIES: Peter Locksley Comiskey and Denise Mary Comiskey (appellants) v Fairhill Coking Coal Pty Ltd ACN 155 409 199 (respondent) FILE NOs: LAC012-25 Land Court No MRA418-24 PROCEEDING: Appeal from the Land Court of Queensland - Costs ORIGINATING COURT: Land Court of Queensland DELIVERED ON: 4 June 2026 DELIVERED AT: Brisbane HEARD ON: Written submissions on costs closed 5 May 2026 HEARD AT: Brisbane (on the papers) THE COURT: Cooper J PG Stilgoe OAM, President of the Land Court JR McNamara, Member of the Land Court ORDER: 1. The appellants are to pay the respondent’s costs of and incidental to the appeal to be assessed on the standard basis if not agreed. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the Land Appeal Court dismissed the appellant’s application under s 283B of the Mineral Resources Act 1989 to review the compensation payable under an agreement with the respondent – where the respondent submits that costs follow the event such that the appellants are ordered to pay the respondent’s costs of and incidental to the appeal pursuant to s 57A of the Land Court Act 2000 – where the appellants submit that each party should bear its own costs of the appeal – whether, having regard to the unfettered discretion of the Court conferred by s 57A of the Land Court Act 2000, the appellants are to pay the respondents costs of and incidental to the appeal -- 1 of 7 -- 2 APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the respondents sent a Calderbank offer to the appellants on 11 August 2025 – where the appellants did not accept the respondents Calderbank offer – where the respondents submit that costs be assessed on the indemnity basis from 11 August 2025 – whether the respondents costs ought to be assessed on the indemnity basis by reason of their Calderbank offer – whether the appellants failure to accept the respondents Calderbank offer was unreasonable in the circumstances of the case Land Court Act 2000 s 55, s 57A Calderbank v Calderbank (Calderbank) [1976] Fam 93, [1975] 3 All ER 333, applied Comiskey & Anor v Fairhill Coking Coal Pty Ltd [2026] QLAC 2, cited Comiskey v Fairhill Coking Coal Pty Ltd [2024] QSC 137, cited ERO Georgetown Gold Operations Pty Ltd v Henry [2015] QLAC 4, cited ERO Georgetown Gold Operations Pty Ltd v Henry (No 2) [2016] QLAC 3, applied Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] 13 VR 435, applied J & D Rigging Pty Ltd v Agripower Australia Ltd [2014] QCA 23, applied Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors (No 2) [2012] QLAC 2, applied APPEARANCES: JM Horton KC, with W Isdale (instructed by Suthers Taylor) for the appellants A Nicholas (instructed by McCullough Robertson Lawyers) for the respondent -- 2 of 7 -- 3 THE COURT: [1] On 20 April 2026, the Court dismissed the Comiskeys’ appeal from orders dismissing their application under s 283B of the Mineral Resources Act 1989 (MRA) to review the compensation payable under an agreement with Fairhill Coking Coal Pty Ltd.1 The Court directed that the parties file written submissions on the costs of the appeal. Those submissions have now been filed. [2] Fairhill submits that there is no reason why costs should not follow the event such that the Comiskeys should be ordered to pay its costs of and incidental to the unsuccessful appeal. Further, it submits those costs should be assessed on the indemnity basis from 11 August 2025, after the Comiskeys did not accept a Calderbank offer. [3] The Comiskeys submit that each party should bear its own costs of the appeal. [4] Two issues must be determined: (a) Should costs follow the event such that the Comiskeys are ordered to pay Fairhill’s costs of and incidental to the appeal? (b) If so, should those costs be assessed on the indemnity basis by reason of the Calderbank offer? Should costs follow the event? [5] Pursuant to s 57A of the Land Court Act 2000, the Court may order costs for an appeal as it considers appropriate. [6] The provision confers an unfettered discretion on the Court. As was recognised in Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors (No 2),2 the approach that is often taken is that costs follow the event. That common approach does not govern the exercise of the discretion. It does, however, inform it because there is justice in the approach. It protects successful parties who are put to the unnecessary expense of an unsuccessful appeal. This is consistent with the 1 Comiskey & Anor v Fairhill Coking Coal Pty Ltd [2026] QLAC 2. 2 [2012] QLAC 2, [4]. -- 3 of 7 -- 4 requirement in s 55 of the Land Court Act 2000 that the Court must act according to equity and good conscience. [7] The Comiskeys submit that the overall justice of the circumstances in which they appealed support the conclusion that each party should bear its own costs. The appeal raised only two grounds, both of which the Comiskeys contend were reasonably arguable considering statements made by Bradley J (as his Honour was) in dismissing the Comiskeys’ proceeding in the Supreme Court,3 and previous authority on the operation of s 283B of the MRA. Further, the Comiskeys submit that a substantial reason for them commencing their application to review the compensation was Fairhill’s failure to comply with its obligations under the Compensation Agreement and the MRA to pay the agreed sums of compensation by the agreed dates. [8] The submission that the Comiskeys acted reasonably in bringing the appeal should be accepted. Although the first ground of appeal failed, and the Court considered it unnecessary and inappropriate to consider the second ground of appeal, both grounds were reasonably arguable. [9] The first ground of appeal found support in statements made by Bradley J in dismissing the Supreme Court proceeding.4 It also proceeded from a reading of the decision of the Court in ERO Georgetown,5 as to when the jurisdictional requirement under s 283B of the MRA – a material change in circumstances for the mining lease – will be satisfied, which was reasonably open (but not ultimately accepted by the Court). [10] The second ground of appeal was based on Bradley J’s findings that the renegotiation process provided for in the 2023 Agreement was intended to be legally binding and the parties were obliged to cooperate to either register any agreement to amend the original compensation or, if no agreement was reached, to enable the Land Court to review the original compensation under s 283B of the MRA,6 and that the Comiskeys 3 Comiskey v Fairhill Coking Coal Pty Ltd [2024] QSC 137, as discussed in Comiskey & Anor v Fairhill Coking Coal Pty Ltd [2026] QLAC 2, [10]-[11], [44]-[47] and [49]-[50]. 4 Comiskey v Fairhill Coking Coal Pty Ltd [2024] QSC 137, [29]-[31]. 5 ERO Georgetown Gold Operations Pty Ltd v Henry (ERO Georgetown) [2015] QLAC 4, [44]. 6 Comiskey v Fairhill Coking Coal Pty Ltd [2024] QSC 137, [27]-[29]. -- 4 of 7 -- 5 should have Fairhill’s cooperation in seeking a review in the Land Court.7 The Court’s conclusion in dismissing the appeal – that success on the second ground could not overcome the absence of jurisdiction which followed the rejection of the first ground – does not mean there was anything improper in the Comiskeys’ advancing the second ground of appeal. [11] Having regard to the content of the 2023 Agreement to renegotiate the amount of compensation, the parties’ failure to agree on a revised amount of compensation and the subsequent statements made by Bradley J in dismissing the Supreme Court proceeding, the Comiskeys’ acted reasonably in applying to the Land Court for a review of the compensation and in appealing from the dismissal of that application. [12] However, that is not a sufficient basis to conclude that each party should bear its own costs. In responding to the appeal, Fairhill has been required to incur costs to address issues already determined in its favour by the Member below. Fairhill’s success is a relevant and significant factor in determining the application for costs.8 The approach that costs should follow the event is appropriate in this case. The Comiskeys should be ordered to pay Fairhill’s costs of and incidental to the appeal. Should Fairhill’s costs be assessed on the indemnity basis? [13] The offer made by Fairhill on 11 August 2025 was that: (a) Fairhill would pay $20,000 (excluding GST) to the Comiskeys; and (b) the appeal would be discontinued by consent. [14] The offer was open for acceptance until 25 August 2025. It was expressed as being made in accordance with the principles in Calderbank v Calderbank9 and stated Fairhill’s intention to rely on the letter in support of an order for indemnity costs. [15] On 20 April 2026, after the appeal judgment had been delivered, Fairhill made a second Calderbank offer. That offer sought the Comiskeys’ agreement to paying Fairhill’s costs of the appeal on the standard basis. The offer was open for acceptance 7 Comiskey v Fairhill Coking Coal Pty Ltd [2024] QSC 137, [42]. 8 ERO Georgetown Gold Operations Pty Ltd v Henry (No 2) [2016] QLAC 3, [31]. 9 [1976] Fam 93; [1975] 3 All ER 333. -- 5 of 7 -- 6 until 27 April 2026. Again, the offer was expressed as being made in accordance with the principles in Calderbank and stated Fairhill’s intention to rely on the letter in support of an order for indemnity costs. [16] The Comiskeys did not accept either offer. [17] The fact that a Calderbank offer was made but not accepted is a matter that the Court should have regard to when considering whether to order indemnity costs. However, the refusal of such an offer is not, of itself, sufficient to warrant an order for indemnity costs. The critical question is whether the rejection of the offer was unreasonable in the circumstances. Matters which should generally be considered in considering that question include: (a) the stage of the proceeding at which the offer was received; (b) the time allowed to consider the offer; (c) the extent of the compromise offered; (d) the recipient’s prospects of success, assessed at the date of the offer; (e) the clarity with which the terms of the offer were expressed; and (f) whether the offer foreshadowed an application for indemnity costs if the recipient does not accept it.10 [18] In the present case, the first Calderbank offer was made well before the hearing of the appeal. The Comiskeys were given a reasonable period to consider it. Its terms were clearly expressed, and it gave notice that indemnity costs would be sought if the Comiskeys did not accept it. [19] There is no reason to doubt that the offer was a genuine attempt to compromise the appeal. Further, the result for the Comiskeys if they had accepted the offer would have been more favourable than the dismissal of the appeal. Nevertheless, the extent of the compromise offered was relatively modest. 10 ERO Georgetown Gold Operations Pty Ltd v Henry (No 2) [2016] QLAC 3, [36]; J & D Rigging Pty Ltd v Agripower Australia Ltd [2014] QCA 23, [5]-[6]; Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] 13 VR 435,442 [25]. -- 6 of 7 -- 7 [20] As to prospects, the support for the appeal grounds which could be drawn from the statements made by Bradley J in dismissing the Supreme Court proceeding, and the discussion in ERO Georgetown of the operation of s 283B of the MRA, support the conclusion that (notwithstanding the decision below and the ultimate outcome of the appeal), at the date the offer was made the Comiskeys had objectively reasonable prospects of success. That, combined with the relatively modest extent of the compromise offered, outweigh the other relevant considerations. [21] In all the circumstances, it was not unreasonable for the Comiskeys to not accept the offer. The circumstances do not favour the making of an order for costs on the indemnity basis. Order 1. The appellants are to pay the respondent’s costs of and incidental to the appeal to be assessed on the standard basis if not agreed. -- 7 of 7 --