Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 25) [2020] QLC 22

LAND COURT OF QUEENSLAND CITATION: Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 25) [2020] QLC 22 PARTIES: Cherwell Creek Coal Pty Ltd (ACN 063 763 002) (applicant) v BHP Queensland Coal Investments Pty Ltd (ACN 098 876 825) QCT Resources Pty Ltd (ACN 010 808 705) BHP Coal Pty Ltd (ACN 010 595 721) QCT Mining Pty Ltd (ACN 010 487 840) Mitsubishi Development Pty Ltd (ACN 009 779 873) QCT Investment Pty Ltd (ACN 010 487 831) Umal Consolidated Pty Ltd (ACN 000 767 386) (respondents) FILE NO: MRA1332-08 DIVISION: General division PROCEEDING: Application for costs DELIVERED ON: 16 June 2020 DELIVERED AT: Brisbane HEARD ON: Submissions closed 10 June 2020 HEARD AT: Heard on the papers PRESIDENT: FY Kingham ORDERS: 1. The Applicant pay the Respondents costs of the application assessed on the standard basis. 2. The Applicant must pay the costs thrown away by reason of its having leave to amend Annexure A, such -- 1 of 5 -- 2 costs not to be assessed until after the trial and determination of the proceeding. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the parties disagree as to costs of an application for leave to amend a pleading, where the Court granted leave – where the respondent sought costs on an indemnity basis – where the applicant sought costs on the basis that it was successful in the application – where the Court found the respondents should have their costs as the application sought an indulgence of the Court – where the Court found that costs on the indemnity basis were not appropriate as the applicant did not act so unreasonably as to justify an award on that basis PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the respondents sought costs thrown away – where the applicant submitted that any costs thrown away be reserved – where the Court awarded the respondent its costs thrown away to be assessed after trial and determination Land Court Act 2000 s 34(2) Uniform Civil Procedure Rules 1999 r 386, r 692 BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd (2009) 30 QLCR 140; [2009] QLAC 5, applied Callide Power Management Pty Ltd v Callide Coalfields (Sales) Pty Ltd [2015] QSC 337, cited Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No. 6) [2017] QLAC 1, applied Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 22) [2019] QLC 47, considered Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 23) [2020] QLC 18, cited Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, 234, cited Di Carlo v Dubois [2002] QCA 225 [38], cited Mayfair Property Holdings Pty Ltd v Southland Packers Pty Ltd (No 3) [2016] QSC 150 [6], cited Moreton Bay Regional Council v Mekpine Pty Ltd & Anor (No 2) (2014) 35 QLCR 273; [2014] QLAC 5, applied President’s Club Ltd v Palmer Coolum Resort Pty Ltd [2020] QSC 11, cited APPEARANCES: Not applicable -- 2 of 5 -- 3 [1] On 11 June 2020, I made orders granting Cherwell Creek Coal Pty Ltd leave to amend its Annexure A, in effect its statement of claim in these proceedings.1 I have received competing submissions as to costs. [2] The respondents (BMA) seek these orders: 1. The applicant pay the respondents’ costs of and incidental to the applicant’s application for leave filed on 1 May 2020, to be assessed on the indemnity basis. 2. The applicant pay the respondents’ costs thrown away (if any) in consequence of the amendments made in the Fifth Amended Annexure A and the Sixth Amended Annexure A, to be assessed on the standard basis.2 [3] Cherwell Creek seeks different orders: 1. That BMA pay CCC’s costs of and incidental to its (successful) application for leave on the standard basis to be assessed under the Supreme Court scale of costs; and 2. Costs (if any) thrown away by CCC’s amendments be reserved. [4] The Court has discretion to order costs in a proceeding, as it considers appropriate. If the Court makes no other order, each party must bear their own costs.3 The Court’s discretion to order costs is unfettered “except to the extent it is confined by the subject matter and the scope and purpose of the legislation.”4 [5] The rule that costs follow the event may inform the exercise of the discretion “…as there is justice in that approach. It protects those put to unnecessary expense at the behest of others.”5 [6] However, that is not the only principle that can guide this Court in the exercise of its discretion. The parties seek orders about costs of the application and costs thrown away due to the amendments. The Court can draw on general principles that apply to each category of costs. [7] As to the costs of the application, a party who applies for an indulgence of the Court will generally pay the costs of the application unless the respondent’s conduct in 1 Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 23) [2020] QLC 18. 2 Submissions for the Respondents: Costs of the Application Filed on 1 May 2020 for Leave to fIle Fifth Amended Annexure A, filed 10 June 2020 [17]. 3 Land Court Act 2000 s 34(2). 4 BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd (2009) 30 QLCR 140, 144-5; [2009] QLAC 5. 5 Moreton Bay Regional Council v Mekpine Pty Ltd & Anor (No 2) (2014) 35 QLCR 273; [2014] QLAC 5. -- 3 of 5 -- 4 resisting the application was unreasonable.6 Cherwell Creek relies on an earlier decision in this proceeding, when I awarded BMA costs on an application related to amendments to its Defence.7 However, on that application, BMA succeeded in its primary argument that it did not need leave to amend. Since then, the parties have been constrained by directions about the extent to which they could further amend without leave.8 [8] Cherwell Creek applied for leave because it was required to. As it sought the Court’s indulgence, BMA should have its costs of the application, unless its conduct in resisting the application was unreasonable. During and after oral argument, Cherwell Creek further revised its proposed amendments; it says, to clarify their meaning. That is sufficient to dispose of the suggestion that BMA unreasonably resisted the application. [9] BMA seeks those costs on an indemnity basis. It relies on three matters. The first two relate to the increased costs resulting from Cherwell Creek’s shifting positions on the proposed amendments. The third is that Cherwell Creek did not lead sworn evidence to explain why it did not rearticulate its case earlier. I dealt with this issue on the merits. The absence of sworn evidence on the point does not justify indemnity costs. [10] Cherwell Creek’s further revisions to its proposed amendments during and after oral argument, in particular, its change of position regarding the grant of MDLA 364 did result in unnecessary costs. A significant focus of BMA’s resistance to the amendments was that the change regarding MDLA 364 involved a substantial reformulation of Cherwell Creek’s case. Cherwell Creek’s further revisions clarified what it argued was the intended meaning of the proposed amendments. [11] However, while Cherwell Creek could have better articulated its proposed amendments from the outset of this application, I am not persuaded its conduct was so unreasonable that costs should be assessed on an indemnity basis.9 BMA will have its costs of the application, assessed on the standard basis. 6 President’s Club Ltd v Palmer Coolum Resort Pty Ltd [2020] QSC 11[42]-[51]; Mayfair Property Holdings Pty Ltd v Southland Packers Pty Ltd (No 3) [2016] QSC 150 [6]. 7 Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 22) [2019] QLC 47. 8 Order 8 of orders dated 17 September 2019; order 1 of orders dated 14 November 2019. 9 Di Carlo v Dubois [2002] QCA 225 [38] (White J, with whom Williams JA and Wilson J agreed), quoting Rosniak v Government Insurance Office (1997) 41 NSWLR 608, 616; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, 234. -- 4 of 5 -- 5 [12] There is also the question of costs thrown away as a result of the amendments. Generally, they are borne by the amending party, whether or not leave is required for the amendments.10 Given the difficulty, before trial, in assessing the costs implications of the amendments, I will apply the approach taken by the Land Appeal Court when the Court granted BMA leave to substantially amend its Defence.11 That is, Cherwell Creek must pay the costs thrown away by reason of its having leave to amend Annexure A, such costs not to be assessed until after the trial and determination of the proceeding. Orders: 1. The Applicant pay the Respondents costs of the application assessed on the standard basis. 2. The Applicant must pay the costs thrown away by reason of its having leave to amend Annexure A, such costs not to be assessed until after the trial and determination of the proceeding. 10 UCPR rr 386, 692; Callide Power Management Pty Ltd v Callide Coalfields (Sales) Pty Ltd [2015] QSC 337 [21]. 11 Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No. 6) [2017] QLAC 1. -- 5 of 5 --