Citigold Corporation Limited v Charters Towers Regional Council (No 2) [2025] QLC 30

LAND COURT OF QUEENSLAND CITATION: Citigold Corporation Limited v Charters Towers Regional Council (No 2) [2025] QLC 30 PARTIES: Citigold Corporation Limited ABN 30 060 397 177 (appellant) v Charters Towers Regional Council (respondent) FILE NO: LGR580-23 PROCEEDING: Application for costs DELIVERED ON: 8 December 2025 DELIVERED AT: Brisbane HEARD ON: Written submissions closed on 19 November 2025 HEARD AT: Brisbane MEMBER: W A Isdale ORDER: The appellant pay the respondent’s costs of and incidental to the appeal, on the standard basis and at the District Court scale. CATCHWORDS: PROCEDURE – COSTS – GENERAL RULE: COSTS FOLLOW THE EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where the respondent was successful in defending an appeal of a rates categorisation decision – where the respondent brought an application for its costs of the appeal – where the unsuccessful party argued that the appeal was a ‘test case’ or was one that clarified the respondent’s ambiguous revenue statement – whether there was a matter of principle to be determined in the appeal – whether the appellant brought the appeal, properly, for its own commercial reasons – whether costs should follow the event Land Court Act 2000 (Qld) s 27A, s 57A Local Government Regulation 2012 (Qld) -- 1 of 13 -- 2 Balanced Property Pty Ltd & Anor v Pembroke Olive Downs Pty Ltd; Pembroke Olive Downs Pty Ltd v Balanced Property Pty Ltd & Anor (No 2) [2025] QLAC 5, followed BHP Coal Pty Ltd & Ors v Chief Executive, Department of Environment, Science and Innovation (No 2) [2024] QLC 13, cited Genamson Holdings Pty Ltd v Moreton Bay Regional Council (No 2) [2025] QLAC 4, distinguished MacMines Austasia Pty Ltd v Chief Executive, Department of Environment, Science and Innovation (No 3) [2024] QLC 21, cited Mentech Resources Pty Ltd v MCG Resources Pty Ltd (in liq) & Ors (No 2) (2012) 33 QLCR 43, cited Moreton Bay Regional Council v Mekpine Pty Ltd & Anor (No 2) (2014) 35 QLCR 273, cited Oshlack v Richmond River Council (1998) 193 CLR 72, followed Western Downs Regional Council v Geldard (No 2) (2020) 41 QLCR 91, applied APPEARANCES: M J Batty KC, with M Rodgers (instructed by Clinton Mohr Lawyers) for the appellant K W Wylie (instructed by Preston Law) for the respondent Background [1] The appellant (Citigold) appealed to this Court against a categorisation decision under the Local Government Regulation 2012. [2] Citigold holds mining leases over areas in Charters Towers, a long established gold mining area. [3] The respondent (the Council) had issued rates notices to the appellant on the basis that the relevant parcels were within a certain rating category. The appellant disputed this categorisation, contending for a different categorisation. This dispute made its way to the Land Court. [4] After a hearing over two days, this Court decided that the appeal could not be allowed. The reasons for this decision were published on 5 November, 2025.1 [5] By a consent order made on that day, a timetable was established for the making, and response to, any application for costs. 1 Citigold Corporation Limited v Charters Towers Regional Council [2025] QLC 27. -- 2 of 13 -- 3 [6] On 12 November, 2025, the Council filed a General Application seeking a costs order in its favour. That is now before the Court. The General Application [7] In its application, the Council seeks orders as detailed in the outline of argument that accompanies the General Application. The Council’s submissions [8] The Council seeks its costs of the appeal, on the standard basis and on the District Court scale. [9] It sets out in brief compass that Citigold contended that the correct categorisation was one that would have brought about a significant reduction in rates, around 55%. [10] It submits that the Local Government Regulation 2012 relevant to the matter determined by the Court is silent on the subject of costs, with the result that recourse must be had to section 27A of the Land Court Act 2000, which provides that – 27A Costs (1) Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate. (2) If the court does not make an order under subsection (1), each party to the proceeding must bear the party’s own costs for the proceeding. [11] The Council refers to the decision of this Court in MacMines Austasia Pty Ltd v Chief Executive, Department of Environment, Science and Innovation (No 3), where this Court said, inter alia – [8] Section 27A confers upon this Court an “unfettered discretion” to order costs. However, section 27A sets the ‘default position’ of this court apart from the default position under Uniform Civil Procedure Rules 1999 (UCPR). Section 681 of the UCPR provides the general rule about costs, and states that “costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the Court orders otherwise”. In contrast, section 27A states that the Land Court may order costs as it considers appropriate but if it does not do so, each party to the proceeding must bear its own costs. [9] As the Land Appeal Court said in Lonergan & Anor v Friese (No 2), the ‘default position’ is therefore that each party should bear its own costs unless I accept the respondent’s submission that in this case, the rule that costs follow the event should be engaged. [10] If a costs application is made, the Court must exercise its discretion without caprice, having regard to relevant considerations and established principles. -- 3 of 13 -- 4 Section 27A does not establish a ‘general rule’ that each party should bear its own costs. [11] The rule that costs follow the event does not ‘govern’ the unfettered discretion of the Court under section 27A. However, this rule is ‘deeply embedded in the law’ and that must be considered. This rule protects those put to unnecessary and substantial expense at the behest of others. [12] Costs orders are not punitive, they are compensatory. They “indemnify the successful party against the expense to which they have been put in the litigation”.2 (references omitted) [12] Reference is also made to the decision of the Land Appeal Court in Mentech Resources Pty Ltd v MCG Resources Pty Ltd (in liq) & Ors (No 2).3 In that case the Land Appeal Court was considering the then section 34 of the Land Court Act 2000, which was, effectively for present purposes, in the same form as section 27A. It considered that its discretion to award costs, which is for present purposes the same as that entrusted to this Court, is unfettered. It acknowledged that the rule often applied is that costs follow the event. That rule does not govern the exercise of the discretion but informs it. The Land Appeal Court went on to note the protection of those put to unnecessary and substantial expense at the behest of others. It was ordered that the unsuccessful appellant pay the first respondent’s costs on the standard basis.4 [13] The Council also refers to the decision of the Land Appeal Court in Moreton Bay Regional Council v Mekpine Pty Ltd & Anor (No 2) where that Court, considering section 34, and referencing Mentech, said – [12] It has been held on many occasions that the discretion to award costs granted by s 34 is unfettered but that the discretion is to be exercised judicially, that is for reasons that may be explained and substantiated. However it has also been recognized by the Land Appeal Court that although the discretion to award costs is unfettered, the rule that costs follow the event may inform the exercise of the discretion granted under s 34(1), "as there is justice in that approach. It protects those put to unnecessary and substantial expense at the behest of others.” 5 (references omitted) 2 [2024] QLC 21. 3 (2012) 33 QLCR 43. 4 Ibid [4]–[6]. 5 (2014) 35 QLCR 273 [12]. -- 4 of 13 -- 5 [14] Also referred to is the decision of this Court in BHP Coal Pty Ltd & Ors v Chief Executive, Department of Environment, Science and Innovation (No 2) where this Court said – [8] The Court must exercise its own discretion, informed by the respondent’s position. The discretion must be exercised judicially, for reasons.6 [15] The Council submits that there are five matters that, severally and collectively, warrant an order for costs in favour of the Council. They are – First, the Council was wholly successful in the proceeding, in that the appeal was dismissed, this being a matter that has been consistently held by this court to be germane to the question of costs. Indeed, in finding that the Citigold mining lease were being used as a mine during the rating period, the Court relied, inter alia, on the evidence of Citigold’s own expert, Mr Foord. Related to this, Citigold can point to no benefit or level of success in the proceeding. To the extent that Citigold was successful in its ‘temporal limit’ argument, the Courts have confirmed that a party who has successfully vindicated its rights in a proceeding should not disadvantaged as to costs because it was unsuccessful on an issue that did not alter the final outcome. Secondly, there was no matter of principle to be determined in this appeal, nor was there any real ambiguity in the wording of the rating categories, such that it cannot be said that there was a broader, public benefit arising from Citigold’s appeal. This was a matter considered germane by the Land Appeal Court in Western Downs Regional Council v Geldard (No 2) [2020] QLAC 2 at [14]. Thirdly, the Council conducted the proceeding in a wholly professional manner, and with an efficient use of Court time, the proceeding taking only two days to be heard. Fourthly, it has been recognised by this court that the fact that the Council is funded by its ratepayers should not be a consideration in the exercise of the discretion to award costs.7 Fifthly, Citigold’s appeal had obvious potential commercial advantages to it. Success would have resulted in a material reduction in the rates that would otherwise be payable to the Council. They appealed to this Court with the intent to achieve that commercial benefit, alive to the potential for an adverse costs order if they were not. Them being unsuccessful, and them compelling Council to respond to the appeal and incur expenses defending its (correct) decision, there are no cogent reasons why a costs order in favour of Council should not follow. (references omitted) 6 [2024] QLC 13 [8]. 7 Cited in support of this are Western Downs Regional Council v Geldard (No 2) (2020) 41 QLCR 91, Northern Territory v Sangare (2019) 265 CLR 164, 174-5 [28] and Oshlack v Richmond River Council (1998) 193 CLR 72, 107. -- 5 of 13 -- 6 [16] The Council notes that it is trite law that costs are not ordered to punish an unsuccessful party but to indemnify a successful party for the costs it has been put to, referring to remarks of McHugh J.8 [17] The Court observes at this point that McHugh J also said, in Oshlack, that – [65] Although the statutory discretion is broadly stated, it is not unqualified. It clearly cannot be exercised capriciously. Importantly, the discretion must be exercised judicially in accordance with established principle and factors directly connected with the litigation. In this manner, the law has gradually developed principles to guide the proper exercise of the discretion and, in some cases, to highlight extraneous considerations which, if taken into account, will cause the exercise of the discretion to miscarry. Consistent with the aim of justice, the law could not have developed otherwise. As Mason CJ said in Latoudis: “it does not follow that any attempt to formulate a principle or a guideline according to which the discretion should be exercised would constitute a fetter upon the discretion not intended by the legislature. Indeed, a refusal to formulate a principle or guideline can only lead to exercises of discretion which are seen to be inconsistent, a result which would not have been contemplated by the legislature with any degree of equanimity.” [66] By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation. A successful litigant is generally entitled to an award of costs. … 9 (references omitted) [18] His Honour went on to add that – [67] The expression the “usual order as to costs” embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation. [68] As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense 8 Oshlack v Richmond River Council (1998) 193 CLR 72, 97 [67] (McHugh J). 9 Ibid [65]–[66]. Cf Genamson Holdings Pty Ltd v Moreton Bay Regional Council (No 2) [2025] QLAC 4, where each party enjoyed a measure of success and neither party was ordered to pay the costs of the other. -- 6 of 13 -- 7 involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice. [69] The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd, Devlin J formulated the relevant principle as follows: “No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct.” “Misconduct” in this context means misconduct relating to the litigation … 10 (references omitted) [19] His Honour noted that there are very few, if any, exceptions to the usual order as to costs outside the area of disentitling conduct.11 [20] In the present case, the Council submits that it has been wholly successful, there is no disentitling conduct and it is appropriate that it be indemnified by Citigold which should be ordered to pay the Council’s costs of and incidental to the appeal on the standard basis at the District Court scale. Citigold’s submissions [21] The appellant, Citigold, has provided, in its written submissions, three reasons why it opposes the respondent’s submissions on costs. It is appropriate to deal with them seriatim. [22] First, it submits that the respondent’s success depended on a point not raised until the hearing, when it was then positively alleged that the land was, at the relevant time, i.e., when the rates were being levied, being used as a mine. [23] It is pointed out that the respondent’s approach, that use of the land was to be considered over an unlimited time, resulted in costs being incurred due to the breadth of the case caused by the adoption of this approach. This required the appellant to identify historical use of the land when the scope of the case could have been confined to the current rating period. 10 Ibid [67]–[69]. 11 Ibid [70]. -- 7 of 13 -- 8 [24] It is submitted that the scope of the expert evidence would have been reduced if the respondent had not adopted the approach of looking far beyond the current rating period, back in time. [25] Secondly, the appellant argues that the basis of the respondent’s success favours the Court ordering that each party bear its own costs. [26] Until the hearing, the respondent did not allege that the land was presently being used as a mine. It had formulated its case on the basis that the parcels of land had been used and are intended to be used as a mine. [27] The first time when there was an allegation that the land was presently being used as a mine was in the report dated 28 May, 2025 by the expert engaged by the respondent. This was to the effect that the mine was under care and maintenance and therefore presently being used as a mine. [28] There was, however, no formal allegation to this effect raised by the respondent with the appellant. [29] This matter happens to be the basis upon which the Court decided the appeal. This is submitted by the appellant to favour each party bearing its own costs. [30] Thirdly, it is submitted that the interests of justice favour that there be no order as to costs as the appeal clarified the respondent’s Revenue Statement. [31] This has two arms, first that the proceeding was, in effect, a test case with benefit beyond the parties. [32] In support of the “test case” submission, the appellant points to a statement by the solicitor for the respondent in the affidavit made on 14 August, 2025. In paragraph [16] thereof the following passage appears – I am also instructed by Council officers that they would strongly oppose any further adjournment of the trial dates, because: … b. there are a series of ratings objections that have been made on similar grounds to those advanced by Citigold, and they are being held in abeyance pending the determination of this appeal, and Council wants to have those matters dealt with as soon as practicable; … 12 12 Affidavit of Julian Bodenmann, 14 August, 2025 [16]. -- 8 of 13 -- 9 [33] The statement must be viewed in its context, relating to opposing an adjournment, and also that it is not the deponent’s opinion, but what, as a professional, his client has instructed him concerning the place of this appeal in its dealing with other matters. [34] The second arm is that the Court accepted that the Revenue Statement was ambiguous and had been incorrectly applied by the respondent Council. Consideration [35] The Land Appeal Court considered costs in a decision given on 19 November, 2025, the day on which submissions in this case closed.13 The parties could not be expected to have addressed this decision in their submissions. It will not be necessary to offer them the opportunity to address it as it does not depart from existing authority or establish anything new. Reference will be made to it as it usefully applies existing principles. [36] In that case, the Land Appeal Court was considering section 57A of the Land Court Act 2000, which provides – 57A Costs (1) The Land Appeal Court may order costs for an appeal to the court as it considers appropriate. (2) Without limiting subsection (1), the Land Appeal Court may order costs for the proceeding in which the decision appealed against was made, whether or not the court or tribunal that made the decision made, or had power to make, an order for costs for the proceeding. (3) If the Land Appeal Court does not make an order under subsection (1), each party to the appeal must bear the party’s own costs for the appeal. (4) This section is subject to the provisions of this Act or another Act to the contrary.14 [37] The Land Appeal Court, considering this provision which is, for present purposes, favourably comparable to section 27A of the Act, said – [4] In Yalgun Investments Pty Ltd v The Council of the Shire of Albert, the Land Appeal Court summarised eleven principles relating to costs under analogous legislation. The eighth principle was stated as: “In general, a party who is wholly successful in litigation can expect an order for costs in his favour. Where compensation is 13 Balanced Property Pty Ltd & Anor v Pembroke Olive Downs Pty Ltd; Pembroke Olive Downs Pty Ltd v Balanced Property Pty Ltd & Anor (No 2) [2025] QLAC 5. 14 Ibid. -- 9 of 13 -- 10 awarded to one who was already been given, by statute, the right to receive it, it is just to say that the claimant ought, in the absence of special circumstances, to receive his reasonable costs of obtaining the compensation that is, ex hypothesi, his due. But costs are discretionary and no hard and fast rules will ever be allowed to occupy part of an area controlled by a discretion, however predictable the result of its exercise may be in certain sorts of cases. In some cases, the Land Court may consider that there are sufficient reasons for departing from the general rule…” (references omitted) [38] The Land Appeal Court went on to say that – [6] In Allianz Australia Insurance Limited v Swainson, Fraser JA cited with approval McMurdo J's statement in Whiting v Somerset Regional Council (No 2) that “ordinarily the fact that a successful plaintiff or applicant fails on particular arguments does not mean that he should be deprived of some of its costs or require apportionment of costs between issues.” [7] In Firebird Global Master Fund II Ltd v Republic of Nauru, the High Court observed: “In any event, the preferable approach in this case is the one usually taken, that costs should follow the outcome of the appeal. This is not a case where it may be said that the event of success is contestable, by reference to how separate issues have been determined. There are no special circumstances to warrant a departure from the general rule and good reasons not to encourage applications regarding costs on an issue by issue basis, involving apportionment based on degrees of difficulty of issue, time taken to argue them and the like …” [8] Courts have warned that revisiting each issue and tallying “wins and losses” is unsatisfactory and undesirable. [9] As the appeal judgment demonstrates, the respondent/cross-appellant did enjoy success in respect of some of the issues. However, our view is that appellants/cross-respondents did succeed on the dominant issues in the appeal as well as the dominant issues in the proceedings below. 15 (references omitted) [39] The Land Appeal Court concluded that – [13] … it is fair to conclude that although the appellants/cross-respondents did not win every issue in the appeal, they enjoyed substantial success such that, 15 Ibid [6]–[9]. -- 10 of 13 -- 11 in our view, there is no reason to depart from the usual rule that costs follow the event.16 [40] The respondent also referred to the decision of this Court where, considering section 27A, the Court said – [3] The appellants have sought an order that the respondent pay their costs of and incidental to the proceeding as agreed or as assessed on the standard basis. [4] The appellants pointed to s 27A of the Land Court Act 2000 as the basis for such an order. That section provides that the Court may order costs as it considers appropriate. [5] The appellants referred to the decision of the Land Appeal Court in Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In liquidation) (no 2). There the Land Appeal Court noted that the discretion is unfettered, however the rule that costs follow the event, referring there to r 689 of the Uniform Civil Procedure Rules 1999, informs the exercise of the discretion. [6] The appellants submit that costs should follow the event in the usual way. [7] The respondent submits that there is no reason why the usual rule should not apply, that costs should follow the event. It does not resist the orders sought by the appellants. [8] The Court must exercise its own discretion, informed by the respondent’s position. The discretion must be exercised judicially, for reasons. Decision [9] Both parties conducted the proceeding in a professional manner, efficiently using Court time. The appellants were wholly successful. The appellants ought to have their costs property incurred in the proceeding which was made necessary by the respondent.17 (reference omitted) [41] The appellant submits that the respondent should have drafted the Revenue Statement so as to provide certainty to rate-payers, whereas it created an ambiguous document which it applied incorrectly. Accordingly, it is submitted that the circumstances of the respondent’s success favours an order that each party bears its own costs. 16 Ibid [13]. See also MacMines Austasia Pty Ltd v Chief Executive, Department of Environment, Science and Innovation (No 3) [2024] QLC 21 [8]–[12]; Mentech Resources Pty Ltd v MCG Resources Pty Ltd (in liq) & Ors (No 2) (2012) 33 QLCR 43 [4]. 17 BHP Coal Pty Ltd & Ors v Chief Executive, Department of Environment, Science and Innovation (No 2) [2024] QLC 13 [3]–[9]. -- 11 of 13 -- 12 Resolution [42] The respondent was ultimately successful in that the appeal was not allowed. This is a powerful consideration. The appellant was successful in its submission regarding the temporal limit of the Revenue Statement; however, the outcome of the appeal turned on the mine being in care and maintenance. [43] The respondent submits that there was no matter of principle to be determined or any real ambiguity in the Revenue Statement.18 This will be discussed below. [44] The appellant brought the appeal for its own commercial reasons. [45] The respondent saw the finalisation of the appeal as being a useful step before it could, in view of the decision, deal with other similar cases. However, the appeal was brought by the appellant simply for its own commercial reasons. The existence of the appeal brought into focus the application of the decision to other objections. Because of this, the respondent was keen to have a decision on the appeal. It did not seek to have the point litigated; it simply defended its decision. The appeal was decided on a narrow point; that there was, if barely, care and maintenance going on so the parcels of land were used as a mine. [46] There was no improper conduct by the respondent that might disentitle it to an order for costs that might otherwise be made in its favour. Both parties conducted themselves in a professional manner. [47] The balance here is a fine one but it must be struck. While not a test case but rather one the outcome of which was useful to the respondent, there was a matter of principle which became the basis upon which the case was decided. This was the content of the concept of a mine, in particular whether the very minimal care and maintenance being practiced in this case was sufficient to enliven the concept of a mine. This, while not initially an issue, became of moment and resulted in the decision in favour of the respondent. This was not a matter of any ambiguity in the Revenue Statement. [48] From the appellant’s perspective, this was an appeal which it brought, properly, for its own commercial reasons. The respondent, also properly, defended its decision and was successful on a narrow basis, which legitimately came into focus in the course of 18 Western Downs Regional Council v Geldard (No 2) (2020) 41 QLCR 91 [14]. -- 12 of 13 -- 13 the litigation. The appeal was not brought to determine a matter of principle, though one was engaged in the case. [49] This Court considers, for the foregoing reasons, that it is appropriate to make an order for costs for the unsuccessful appellant to indemnify the successful respondent by being ordered to pay the respondent’s costs of and incidental to the appeal, on the standard basis and at the District Court scale. Order The appellant pay the respondent’s costs of and incidental to the appeal, on the standard basis and at the District Court scale. -- 13 of 13 --