Farrah v Brisbane City Council [2015] QPEC 64

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Farrah v Brisbane City Council [2015] QPEC 64 PARTIES: JEFFREY FARRAH (appellant) v BRISBANE CITY COUNCIL (respondent) FILE NO/S: 3627/2014 DIVISION: Planning & Environment PROCEEDING: Hearing of an application ORIGINATING COURT: Planning & Environment Court of Queensland at Brisbane DELIVERED ON: 9 December 2015 – ex tempore DELIVERED AT: Brisbane HEARING DATE: 9 December 2015 JUDGE: Rackemann DCJ ORDER: The respondent pay the appellant’s costs of the application, but only those in excess of what would have been incurred by way of a formal appearance on the first return date to respond to an application to confirm the issues in dispute. CATCHWORDS: PLANNING AND ENVIRONMENT – application for the costs of an application in a pending proceeding COUNSEL: I A Neil (solicitor) for the applicant B Job for the respondent SOLICITORS: McCarthy Durie Lawyers for the applicant Brisbane City Legal Practice for the respondent -- 1 of 5 -- 2 [1] This is an application for the costs of an application in a pending proceeding. The application in pending proceeding was brought by the respondent, the Brisbane City Council, for a range of orders, being as follows: (1) confirming the issues in dispute to be determined at the hearing of the appeal; (2) granting leave to the respondent to identify an additional expert 14 days after the date contemplated by the ADR Registrar’s order, dated 22nd October 2015; (3) granting leave for the appellant to notify a counterpart expert if it wished to do so; (4) amending the ADR Registrar’s order, dated 22nd of October 2015, to the extent necessary, and (5), such further orders as the Court deems appropriate. [2] The subject matter of the litigation concerns an application by the appellant to demolish two pre-1946 houses in a Demolition Control Precinct. At least by the 11th of November 2015, it was apparent that the parties were proceeding on the basis that the primary issue was to be one of whether those houses were structurally unsound and could not reasonably be made structurally sound. Although there had previously been issues formally notified in relation to character, the appellant had not notified any expert in that regard. It would appear as though the parties were not at any real confusion as to what the issues, in fact, were as between them, although there was no Court order that had defined the issues as they were understood at the time. The first order sought by the applicant/respondent was an order “confirming” the issues in dispute. It would seem as though if that had been the only order sought, the matter could have been dealt with by way of a formal appearance, there not being any substantive dispute between the parties about that. [3] The balance of the application related to the nomination of a further expert. In that respect, the council had written to the appellant’s solicitors, on the 11th of -- 2 of 5 -- 3 November 2015, advising of its wish to nominate another expert in the appeal, namely, a valuer. Up to that point, neither side had notified any valuation evidence, and it appears, that the question of whether the houses were reasonably capable of being made structurally sound was to be dealt with by evidence relating to the extent of unsoundness and the cost of bringing them into a state of structural soundness. [4] The council’s desire to nominate a valuer was as a consequence of it considering, somewhat belatedly, that the cost of putting the houses into a state of structural soundness should be put into some context in order to judge its reasonableness. That is an understandable position to take, but it was a position that was taken late and, accordingly, was met with resistance from the appellant, on the grounds of its lateness, the extent to which that would likely expand the scope of evidence and required him to meet that valuation evidence, and the costs and delay that would likely have meant for the matter, which had then been set down for hearing in the January sittings. [5] In the course of hearing the application, which was heard over more than one day, I intimated that, whilst I could understand the appellant’s concern, the interests of justice would likely favour the granting of leave. Ultimately, the appellant accepted and did not oppose the granting of the relief which the council sought in that regard, but directions were then made giving the appellant the opportunity to respond to that evidence, and that inevitably led to the vacation of the trial dates. [6] Although the respondent was ultimately successful in getting the relief it sought in this application, the appellant, nevertheless, seeks its costs of the application on the basis that the application was caused because of the late notification of an expert by the council, and that the council was seeking an indulgence. -- 3 of 5 -- 4 [7] In opposing an order for costs, Counsel for the council pointed out that the application had utility beyond the issue of giving the council leave to call an additional expert, namely, the utility of confirming the issues in dispute. I accept that there was some utility in the application in that respect, but had that been the only relief claimed, then it is likely that the matter would have been dealt with by way of a formal appearance only. As I’ve said, it does not appear as though there was any substantive confusion between the parties in relation to the issues that were to be litigated. [8] In so far as the notification of an additional expert is concerned, Counsel for the council suggested that the extent of the lateness was not great, and pointed out that it was the appellant who bore the onus in the appeal, and, therefore, it is he who should have recognised that the cost of placing the houses in a state of structural soundness should be put in context, if he was to establish that the houses could not reasonably be made sound. [9] I was also pointed out that, in the course of hearing the application, I had ordered the appellant to give the particulars of what it would rely upon in that regard, and that those particulars now extended to matters of valuation. That may well be true, but the reality is that the appellant’s position, in so far as now wishing to place before the Court valuation evidence in relation to matters of that nature, has only been triggered because the council has sought leave to nominate a valuer and to call valuation evidence. It may well be that, but for that, the appellant’s case may have had some hole in it, or at least the council might have been in a position to make that submission at trial, but at the end of the day, it is the council which has injected valuation evidence into the case, and it has done so by way of a late notification. -- 4 of 5 -- 5 [10] It was pointed out that the second day upon which this matter was before the Court was a day on which I also made some directions as to the completion of joint reports by other experts, they being late. I acknowledge that there was, therefore, some utility to the appearance on that day; however, that was simply a circumstance where the matter was otherwise before the Court in relation to the respondent’s application. When it was realised that there was some noncompliance by other experts, an order was made in the course of the hearing. There does not appear to have been any additional costs associated with that order, which was simply made in the course of dealing with the application otherwise. [11] Ultimately, in my view, the discretion in this case should be exercised to make an order that the respondent pay the appellant’s costs of the application, but those costs should only be those costs which exceed the costs which would have been incurred by way of a formal appearance on the first return date to respond to an application to confirm the issues in dispute. In so far as the costs exceeding that amount, they should be paid by the respondent. I noticed in the correspondence, that the appellant sought its costs on an indemnity basis. In my view, the circumstances are not such as to warrant the costs being assessed on an indemnity basis. -- 5 of 5 --