Amos v Brisbane City Council [No 2] [2024] QCA 116

SUPREME COURT OF QUEENSLAND CITATION: Amos v Brisbane City Council [No 2] [2024] QCA 116 PARTIES: EDWARD AMOS (appellant) v BRISBANE CITY COUNCIL (respondent) FILE NO/S: Appeal No 7247 of 2016 SC No 6704 of 2009 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal – Further Orders Miscellaneous Application – Civil ORIGINATING COURT: Supreme Court at Brisbane – [2016] QSC 131 (Bond J) DELIVERED ON: 14 June 2024 DELIVERED AT: Brisbane HEARING DATE: 10 May 2024 JUDGES: Boddice JA and Crow and Crowley JJ ORDERS: 1. Pursuant to Order 3 of this Court made on 20 February 2018, and Order 2(a) of this Court made on 10 May 2024, judgment for the respondent in the sum of $464,404.28, being: (a) in respect of 116 Oriel Road, Clayfield, in the State of Queensland for unpaid rates and charges $42,424.46 and interest of $40,876.95; (b) in respect of 118 Oriel Road, Clayfield, in the State of Queensland for unpaid rates and charges $47,018.64 and interest of $45,303.55; (c) in respect of 11 Edmondstone Street, Newmarket, in the State of Queensland for unpaid rates and charges $23,825.21 and interest of $22,956.14; (d) in respect of 38 Lever Street, Albion, in the State of Queensland for unpaid rates, utility and charges of $61,666.07 and interest of $59,358.05; (e) in respect of 36 Parker Avenue, Northgate, in the State of Queensland for unpaid rates and charges $23,650.45 and interest of $22,787.76; -- 1 of 6 -- 2 (f) in respect of 29 Wellington Street, Virginia, in the State of Queensland for unpaid rates and charges $26,293.18 and interest of $25,334.09; (g) in respect of 85 Dickson Street, Wooloowin, in the State of Queensland for unpaid rates and charges $22,762.68 and interest of $21,932.37; (h) in respect of 830 Sandgate Road, Clayfield, in the State of Queensland for unpaid rates and charges for utility charges $16,570.71 and interest of $15,966.27; and (i) reduced by the amount of $54,322.28 for the Appellant’s costs of this proceeding pursuant to Order 4 made on 20 February 2018, by way of set off from the amounts in paragraphs l(a)-(h). 2. The appellant pay interest on that judgment sum from 21 May 2018 to the date hereof, pursuant to s 59 of the Civil Proceedings Act 2011, in the sum of $210,711.14. 3. The appellant’s application filed 31 January 2024 be dismissed. 4. There be no order as to costs of: (a) proceeding SC6704/09; (b) the appellant’s application filed 31 January 2024; and (c) the respondent’s application filed 15 March 2024. CATCHWORDS: PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – where the respondent brought an action to recover overdue rates and charges – where the matter was successfully appealed – where the Court of Appeal ordered that judgment be entered for the respondent “in accordance with minutes of judgment produced by the parties to the Registrar” – where both parties failed to produce minutes – where the appellant now makes an application for an order that the respondent be restrained from taking any further steps or other action to perfect or otherwise implement the Order, or alternatively, seeks a permanent stay – where the appellant seeks to rely on delay – where an explanation is proffered by the respondent for the delay – whether the respondent should be restrained from taking steps to perfect the Order City of Brisbane Act 2010 (Qld), s 97 City of Brisbane (Finance, Plans and Reporting) Regulation 2010 (Qld), s 65 Civil Proceedings Act 2011 (Qld), s 59 Uniform Civil Procedure Rules 1999 (Qld), r 5 -- 2 of 6 -- 3 Amos v Brisbane City Council (2017) 230 LGERA 51; [2018] QCA 11, related COUNSEL: D J Campbell KC, with P G Jeffery, for the appellant A L Wheatley KC, with J E FitzGerald, for the respondent SOLICITORS: Beaudesert Legal for the appellant City Legal for the respondent [1] THE COURT: On 13 June 2016, the primary judge found in favour of the respondent, in respect of a claim to recover unpaid rates and charges owed on real property owned by the appellant. [2] On 20 February 2018, the Court of Appeal allowed the appellant’s appeal and set aside the primary judgment, on the basis that some of the claimed amounts were barred from recovery due to the Limitation of Actions Act 1974 (Qld). It was ordered that judgment be entered for the respondent “in accordance with minutes of judgment produced by the parties to the Registrar”. [3] Notwithstanding that Order, neither party produced minutes of judgment. The judgment sum remains to be perfected, in accordance with the minutes of judgment. [4] In late 2023, the respondent sought the agreement of the appellant to the terms of a draft minute to perfect the judgment order. That draft order calculated the outstanding judgment sum, including significant amounts by way of interest owing on the outstanding rates from 1 April 2012 to 22 November 2023. Such interest was compounding interest, in accordance with the Regulations.1 No agreement was reached by the parties. [5] The appellant now makes an application for an order that the respondent be restrained from taking any further steps or other action to perfect or otherwise implement the Order made on 20 February 2018. Alternatively, a permanent stay is sought of that Order. Both applications rely on delay. [6] The respondent also makes an application for an order that an assessed amount, to be paid by it in accordance with a costs order, be offset against any judgment sum. [7] It is accepted by the parties that there has been a failure to comply with a Court order. An explanation is proffered by the respondent for the delay in doing so. The explanation falls in three parts. [8] First, the parties agreed that perfecting the Order be delayed until 21 days after any order of the High Court in respect of the respondent’s appeal to that Court. It is submitted that that circumstance explains the delay between the making of the Court order on 20 February 2018 and 13 February 2020, which was 21 days after the issuing of the formal order of the High Court, dismissing the respondent’s appeal. [9] Second, the respondent had inordinate demands dealing with the recovery of rates and charges due to COVID-19 and flood emergencies. It is submitted these circumstances explain the delay from early 2020, until 2022. [10] Third, in 2022 the respondent commenced the costs assessment process, which was not finalised until 2023. It is submitted those circumstances explain the delay from 1 City of Brisbane (Finance, Plans and Reporting) Regulation 2010 (Qld) s 65 (“The Regulations”). -- 3 of 6 -- 4 2022 to when the respondent produced calculations said to be in accordance with the minutes of judgment. [11] The appellant submits that these circumstances do not provide a satisfactory explanation for the respondent’s delay. The appellant accepts that he, too, had an obligation to take steps to comply with the Court order, which he failed to do, but submits that the primary obligation fell on the respondent, having regard to the complicated nature of the calculations of unpaid rates for each property and the compounding interest payable under the Regulations. [12] In the Court’s view, both the appellant and the respondent failed to comply with an order of the Court and their obligations, as litigants, under r 5 of the Uniform Civil Procedure Rules. Those obligations required both parties to take steps to promptly produce calculations, in accordance with the minutes of judgment. [13] Whilst the respondent proffers an explanation for its failure, that explanation does not absolve the respondent from its clear obligation to comply with the Court order, and its obligations under r 5. [14] Further, nothing in the appellant’s material provides a satisfactory reason why the appellant could not have taken steps to do so, in the absence of the respondent having done so promptly. At the very least, the appellant could have brought the matter back before the Court to address the non-compliance. [15] Those circumstances support a conclusion that the failure to comply with the Court order and the obligations under the Uniform Civil Procedure Rules, was a failure on the part of both the appellant and the respondent. Against that background, no injustice arises in allowing the Order to be perfected at this time. [16] The appellant’s application for an order, restraining the respondent from perfecting the order, or for a permanent stay of the order, is refused. [17] The issue for this Court is whether it would be an injustice to allow in the perfecting of the Order the inclusion of very significant sums by way of compounding interest. That issue arises in circumstances where had the Order been complied with by the parties, in accordance with their obligations, the judgment sum would not have contained such amounts. [18] In determining that issue, three matters deserve consideration. [19] First, it was not for the parties to agree to not comply with the Court order, because one party sought special leave to appeal to the High Court. The Court of Appeal’s judgment was not provisional. The obligation to comply with the Order was paramount. [20] Second, the circumstances of COVID-19 and flood emergencies, whilst placing demands on the respondent’s available resources, provide no justification for non- compliance with the Court orders. The obligation of the respondent remained paramount. [21] Third, nothing in the material placed before the Court, supports a conclusion that there was good reason for either party to have failed to produce calculations in accordance with the minutes of judgment, promptly. -- 4 of 6 -- 5 [22] As there was non-compliance by both parties, the judgment to be entered should, in the interests of justice and fairness, be the judgment that would have been entered had the parties complied with the order of the Court and their obligations under the Uniform Civil Procedure Rules. [23] In the normal course, compliance ought to have taken place within a week or so of the delivery of the reasons for judgment. However, having regard to the nature of the calculations necessary for compliance in the instant case, it is reasonable to allow three months for compliance with the Order. [24] Accordingly, the respondent is entitled to a judgment for rates and interest on those outstanding rates at the rate applicable pursuant to Part 1 of Chapter 4 of the City of Brisbane Act 2010 and the City of Brisbane Regulation 2012, from 31 March 2012 to 20 May 2018. That sum is calculated as being $264,211.40 for rates, $254,515.18 for interest, a total of $518,726.58. [25] Having regard to the basis for now perfecting the Order, the interests of justice favour an order setting off the assessed costs amount. As that amount is not the subject of any final certificate,2 we would decline, in the exercise of our discretion, to allow any additional sum by way of interest on that sum since the date of its assessment. [26] Allowing for that deduction, judgment is to be perfected in the sum of $464,404.28. [27] The Court is satisfied that the interests of justices favour an award of interest on that judgment sum from 21 May 2018 to today’s date. The respondent, a statutory authority that has local government responsibilities, has been deprived of payment of that sum for that period, notwithstanding that the appellant knew of his obligation to pay the outstanding rates and council interest thereon. [28] The respondent does not seek orders for costs for proceeding SC6704/09 or its application filed 15 March 2024. The respondent does seek an order that the appellant pay its costs of his application filed on 31 January 2024. However, as the appellant achieved some measure of success in that application, we decline, in the exercise of our discretion, to make a positive costs order. Orders [29] The Court orders: 1. Pursuant to Order 3 of this Court made on 20 February 2018, and Order 2(a) of this Court made on 10 May 2024, judgment for the respondent in the sum of $464,404.28, being: (a) in respect of 116 Oriel Road, Clayfield, in the State of Queensland for unpaid rates and charges $42,424.46 and interest of $40,876.95; (b) in respect of 118 Oriel Road, Clayfield, in the State of Queensland for unpaid rates and charges $47,018.64 and interest of $45,303.55; (c) in respect of 11 Edmondstone Street, Newmarket, in the State of Queensland for unpaid rates and charges $23,825.21 and interest of $22,956.14; 2 City of Brisbane Act 2010 (Qld) s 97. -- 5 of 6 -- 6 (d) in respect of 38 Lever Street, Albion, in the State of Queensland for unpaid rates, utility and charges of $61,666.07 and interest of $59,358.05; (e) in respect of 36 Parker Avenue, Northgate, in the State of Queensland for unpaid rates and charges $23,650.45 and interest of $22,787.76; (f) in respect of 29 Wellington Street, Virginia, in the State of Queensland for unpaid rates and charges $26,293.18 and interest of $25,334.09; (g) in respect of 85 Dickson Street, Wooloowin, in the State of Queensland for unpaid rates and charges $22,762.68 and interest of $21,932.37; (h) in respect of 830 Sandgate Road, Clayfield, in the State of Queensland for unpaid rates and charges for utility charges $16,570.71 and interest of $15,966.27; and (i) reduced by the amount of $54,322.28 for the Appellant’s costs of this proceeding pursuant to Order 4 made on 20 February 2018, by way of set off from the amounts in paragraphs l(a)-(h). 2. The appellant pay interest on that judgment sum from 21 May 2018 to the date hereof, pursuant to s 59 of the Civil Proceedings Act 2011, in the sum of $210,711.14. 3. The appellant’s application filed 31 January 2024 be dismissed. 4. There be no order as to costs of: (a) proceeding SC6704/09; (b) the appellant’s application filed 31 January 2024; and (c) the respondent’s application filed 15 March 2024. -- 6 of 6 --