Byerwen Coal Pty Ltd v Colinta Holdings Pty (No 3) [2019] QLC 20

LAND COURT OF QUEENSLAND CITATION: Byerwen Coal Pty Ltd v Colinta Holdings Pty (No 3) [2019] QLC 20 PARTIES: Byerwen Coal Pty Ltd (applicant) v Colinta Holdings Pty Ltd (respondent) FILE NOs: MRA 117-16 MRA 118-16 MRA 119-16 DIVISION: General Division PROCEEDING: Application for costs DELIVERED ON: Judgment delivered on 14 December 2018 Further order delivered 29 March 2019 DELIVERED AT: Brisbane HEARD ON: 12, 13 & 15 September 2017; 4 & 5 December 2018 Submissions closed 19 March 2019 HEARD AT: Heard on the papers MEMBER: PG Stilgoe OAM ORDER: The applicant must pay the respondent’s costs of and incidental to the second hearing as assessed on the standard basis, or as agreed. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the matter required multiple hearings due to a resumption changing the value of compensation – where the subsequent hearing was limited to a specific issue – where the parties agreed to bear their costs for the first hearing – where the Court ordered that costs followed the event in the subsequent hearing Land Court Act 2000 s 34 -- 1 of 4 -- 2 Byerwen Coal Pty Ltd v Colinta Holdings Pty Ltd (No. 2) [2018] QLC 49, considered ERO Georgetown Gold Operations Pty Ltd v Henry (No. 2) [2016] QLAC 3, followed Oshlack v Richmond River Council (1998) 193 CLR 72, followed APPEARANCES: Not applicable [1] In a decision dated 14 December 2018,1 I determined the compensation payable by Byerwen Coal Pty Ltd to Colinta Holdings Pty Ltd for the grant of five mining leases over Colinta property. This decision deals with the costs of the compensation hearing. [2] Section 34 of the Land Court Act 2000 (Qld) gives the court a general power to order costs of a proceeding as it considers appropriate. That power is unfettered, but the Court must exercise its discretion without caprice, having regard to relevant considerations and established principles.2 [3] The hearing was held in two parts. The first hearing was conducted over three days in September 2017. The parties have agreed that they should each bear their own costs of that hearing. [4] The second hearing was conducted over two days in December 2018. This hearing was necessary because, after the 2017 hearing, but before I delivered my decision, part of the Colinta land was resumed for Adani rail line. The resumption necessarily had an impact on the compensation payable to Colinta. [5] Byerwen submits that the parties should bear their own costs of the second hearing as the hearing was only necessary because Colinta failed to disclose material information before the first hearing. Byerwen says Colinta knew the Adani resumption was occurring because it had consented to the taking of the land through the execution of Commercial Terms Sheets.3 Byerwen says the Commercial Terms Sheets: “reflected a degree of confidence that Colinta’s consent to the resumption would in fact lead to the resumption. In particular, the (commercial) terms sheets provided for Adani to pay Colinta a non-refundable deposit.”4 1 Byerwen Coal Pty Ltd v Colinta Holdings Pty Ltd (No. 2) [2018] QLC 49. 2 Oshlack v Richmond River Council (1998) 193 CLR 72, 96; ERO Georgetown Gold Operations Pty Ltd v Henry (No. 2) [2016] QLAC 3, [24]. 3 Ex 33. 4 Applicant’s Outline in Reply (Costs), filed 19 March 2019, page 1, para 5. -- 2 of 4 -- 3 [6] Byerwen submits that Colinta’s consent to the resumption made the resumption materially more likely to occur (than not). [7] Colinta submits that, although the Adani resumption was foreshadowed during the first hearing, it had not occurred. In those circumstances, Colinta says that it would have been inappropriate to factor a theoretical resumption into the compensation equation when that resumption may never have occurred. It points out that both valuation experts were aware of the potential resumption, but undertook their expert reports, and the joint expert reports, on the basis that the resumption had not been proclaimed. The experts agreed that compensation would need to be re-assessed in the event that the resumption took place.5 Colinta makes the point that neither party took issue with the experts’ approach; and neither party suggested to the valuers that they should assess compensation on a “with resumption” and “without resumption” basis. According to Colinta, because the resumption had not been proclaimed by the time of the first hearing, the assumptions on which the experts based their opinions were correct. [8] I prefer Colinta’s view about the need to disclose the resumption. At the time of the first hearing, there was no certainty that the resumption would take place. There was no certainty that, if I had adjourned the hearing until it was known whether or not the resumption would proceed, that the hearing would have proceeded. Indeed, it was as late as 29 November 2018, just before the second hearing, that Adani finally announced new plans for its railway6 and the parties could assess the impact of the resumption with some clear sense of what the resumption would look like. I do not accept that Colinta’s failure to disclose the possibility of resumption “unnecessarily protracted the proceeding” even though it did delay me in delivering a decision. For the same reason, I do not accept that Colinta was guilty of any misconduct in its decision not to conduct its case on the basis of an accepted truth – that no resumption had been granted. [9] Similarly, I am not persuaded that the second hearing added unnecessary expense to the litigation. The parties would still have embarked on the hotly contested disclosure applications relating to the negotiations leading to the Commercial Terms Sheets, the 5 Ex 28, page 3, para 2.4. 6 Ex 39. -- 3 of 4 -- 4 experts would still have considered alternative scenarios and additional information, and provided extra information in a joint expert report. While some time and expense may have been saved, it is unlikely that the saving was, in the scheme of things, significant. [10] Byerwen says that, in any event, because the parties were, again, both partially successful in the second hearing, each party should bear their own costs. [11] Colinta has a different view. It submits that it was entirely successful in the second hearing, acknowledging that some reduction in compensation was necessary. Colinta notes my rejection of the evidence from Byerwen’s valuer. [12] As Colinta points out, the second hearing was limited to the amount of compensation payable, taking the resumption into account. The issues that determined how I might approach the valuation had been canvassed during the first hearing and there was no need for the parties to revisit those issues despite the attempts by one valuer to do so. I agree that Colinta was wholly successful in the second hearing, as I accepted its submissions as to the effect of the resumption on the compensation. [13] Byerwen makes one further submission; while Colinta may be entitled to its costs of the second hearing, it should not be entitled to the costs of and incidental to relisting the proceeding. As I have indicated, the costs of various applications between the first and the second hearing would probably have been incurred in any event. I can see no good reason for quarantining these costs from the costs of the second hearing. [14] Byerwen must pay Colinta’s costs of and incidental to the second hearing as assessed or agreed. Order The applicant must pay the respondent’s costs of and incidental to the second hearing as assessed on the standard basis, or as agreed. PG STILGOE OAM MEMBER OF THE LAND COURT -- 4 of 4 --