Belcrest Pty Ltd v Brisbane City Council [1999] QLC 223

[1999] QLC 223 ., F (r~: ... '. :·-- _·p I ~-0<' ~- l1 ' L------------·--"' LAND COURT, BRISBANE 10 November 1999 Re: Appeal against the determination of an objection To Categorisation - (Ref. VC99-244). Belcrest Pty Ltd v. Brisbane City Council APPLICATION FOR COSTS The respondent Brisbane City Council has made an application for its costs subsequent to the handing down of the decision in this matter disallowing the appeal by Belcrest Pty Ltd against the categorisation of its land by the Brisbane City Council for differential general rate assessment purposes. Counsel for the respondent submitted that the matter was one where very clearly the appeal could never be upheld, and pointed out that the person who proceeded with it (Mr RV Forgione) is a solicitor and Director of the appellant company, Belcrest Pty Ltd, and it appeared that Mr Forgione had never looked at the matter properly. It was further submitted by the respondent that any cursory checking of the matter would have appraised the appellant that there was no hope at all of successfully prosecuting the appeal, and that it was a waste of time and a waste of the respondent Council's time and money in bringing the matter to Court. It is further submitted by the respondent that the appellant's notice of appeal asserted that there was no basis in law for the appellant's land to have been altered from Category A to Category E and that the recategorisation of the land was the result of a "blind application of Council's policy, without regard to the circumstances of the case", and neither of these contentions has been supported in the Member's reasons for his decision. A further submission by the respondent in support of its application for costs is that during the hearing of the matter, the appellant failed to distinguish as part of its case between the categories used by Council for differential general rating purposes and the categories used by the Chief Executive, Department of Natural Resources, for valuation purposes. Again, the respondent submits that there was ample opportunity for the appellant, either at the commencement of the appeal process or prior to the -- 1 of 2 -- 2 hearing, to address the legislative and budgetary framework pursuant to which Council recategorised the land. On behalf of the appellant, who resists the application for costs and urges the Court to make no order as to costs, it is suggested that Mr Forgione brought the appeal misled by the coincidence referred to in the decision (page 5) between the category used by the Department of Natural Resources and that now adopted by Council. The appellant further submits that it was arguable that where there are two single family residences on a very large parcel of land remote and separate from each other, the land use remained for a single family residential purpose, and the land should be categorised as such. But this goes to the merit of the appeal, which has already been dealt with in the decision. A further merit-based submission concerning the description of Category E land has likewise been dealt with, and the appellant finally submits that the appeal was not without reasonable argument, nor was the conduct of the appellant "just a waste oftime". There is little doubt that had the appellant researched the basis for Council's decision to recategorise its land from Category A to Category E, particularly the resolution outlining the general intent of land use within Category A (the dominant purpose for which the land is used or intended for use is a residential purpose and for the exclusive use of the one family), it would have realised that there was little chance that the appellant would have succeeded in the retention of the land use classification within Category A, and this, as I see it, was the principal ground of appeal. In these circumstances, and in the exercise of my discretion under the provision of 41 (9) of the Land Act 1962, I have come to the conclusion that this is a case where the respondent Brisbane City Council is entitled to its costs of the hearing. Accordingly, I ORDER that the appellant, Belcrest Pty Ltd, pay the respondent Brisbane City Council's costs of and incidental to the hearing of the matter, such costs to be assessed by the Registrar of the Supreme Court at Brisbane. (CH Carter) Member of the Land Court -- 2 of 2 --