Balanced Property Pty Ltd & Anor v Pembroke Olive Downs Pty Ltd; Pembroke Olive Downs Pty Ltd v Balanced Property Pty Ltd & Anor

(2) Without limiting subsection (1), the Land Appeal Court may order costs for the proceeding in which the decision appealed against was made, whether or not the court or tribunal that made the decision made, or had power to make, an order for costs for the proceeding.

(3) If the Land Appeal Court does not make an order under subsection (1), each party to the appeal must bear the party's own costs for the appeal.

(4) This section is subject to the provisions of this Act or another Act to the contrary.

• [4] In Yalgun Investments Pty Ltd v The Council of the Shire of Albert,[2] the Land Appeal Court summarised eleven principles relating to costs under analogous legislation. The eighth principle was stated as:

"In general, a party who is wholly successful in litigation can expect an order for costs in his favour. Where compensation is awarded to one who was already been given, by statute, the right to receive it, it is just to say that the claimant ought, in the absence of special circumstances, to receive his reasonable costs of obtaining the compensation that is, ex hypothesi, his due. But costs are discretionary and no hard and fast rules will ever be allowed to occupy part of an area controlled by a discretion, however predictable the result of its exercise may be in certain sorts of cases. In some cases, the Land Court may consider that there are sufficient reasons for departing from the general rule..."

• [5] In Oshlack v Richmond River Council,[3] McHugh J (with whom Brennan CJ agreed) said at [67] - [69]:

"[67] The expression the "usual order as to costs" embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.

[68] As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice.

[69] The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd, Devlin J formulated the relevant principle as follows:

No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct.

"Misconduct" in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute."

• [6] In Allianz Australia Insurance Limited v Swainson,[4] Fraser JA cited with approval McMurdo J's statement in Whiting v Somerset Regional Council (No 2)[5] that "ordinarily the fact that a successful plaintiff or applicant fails on particular arguments does not mean that he should be deprived of some of its costs or require apportionment of costs between issues."
• [7] In Firebird Global Master Fund II Ltd v Republic of Nauru,[6] the High Court observed:

"In any event, the preferable approach in this case is the one usually taken, that costs should follow the outcome of the appeal. This is not a case where it may be said that the event of success is contestable, by reference to how separate issues have been determined. There are no special circumstances to warrant a departure from the general rule and good reasons not to encourage applications regarding costs on an issue by issue basis, involving apportionment based on degrees of difficulty of issue, time taken to argue them and the like ..."

• [8] Courts have warned that revisiting each issue and tallying "wins and losses" is unsatisfactory and undesirable.[7]
• [9] As the appeal judgment demonstrates, the respondent/cross-appellant did enjoy success in respect of some of the issues. However, our view is that appellants/cross-respondents did succeed on the dominant issues in the appeal as well as the dominant issues in the proceedings below.[8]
• [10] At the hearing before the Land Court, the respondent/cross-appellant had submitted that total compensation ought not exceed $28,483,268. The appellants/cross-respondents contended that the compensation be awarded at $66,620,653. The primary judge quantified total compensation at $34,835,600.
• [11] By the notice of appeal, the appellants/cross-respondents sought orders seeking total compensation of $70,495,471. Conversely, the respondent/cross-appellant cross-appealed seeking that the total primary judgment be reduced to $28,325,793. Total compensation awarded by this Court was $52,861,640.
• [12] Whilst it is true that the appellants/cross-respondents did not achieve the amount of compensation they had sought in the notice of appeal, it did achieve an increase in compensation of $18,026,041.
• [13] Therefore, in terms of the general rule, that is, with the appellants/cross-respondents achieving more than an $18 million increase in compensation sought, it is fair to conclude that although the appellants/cross-respondents did not win every issue in the appeal, they enjoyed substantial success such that, in our view, there is no reason to depart from the usual rule that costs follow the event. Nor, in our view, is it appropriate for the decision as to costs of the primary judgment to be referred to the primary judge. Section 57A(2) of the LCA expressly provides power for this Court to make an award of costs in the primary proceeding, and it is appropriate that award be made having regard to the reasons in the appeal judgment.
• [14] The orders, therefore, that we make are:
  1. The respondent/cross-appellant pay the appellants/cross-respondents' costs of and incidental to the appeal and the cross-appeal on the standard basis.
  2. The respondent/cross-appellant pay the costs of the appellants/cross-respondents of and incidental to sittings before the Land Court of Queensland on the standard basis.

[1] Balanced Property Pty Ltd & Anor v Pembroke Olive Downs Pty Ltd; Pembroke Olive Downs Pty Ltd v Balanced Property Pty Ltd & Anor [2025] QLAC 3.

[2] [1997] QLAC 191; [1997] 17 QLCR 401, 407 (Helman J, Mr Trickett P, Mr Neate).

[3] [1998] HCA 11; (1998) 193 CLR 72.

[4] [2011] QCA 179 at [4].

[5] [2010] QSC 329 at [3].

[6] [2015] HCA 53; (2015) 90 ALJR 270, 271 [6].

[7] See, eg, Access Training Group Ltd v Jane [2024] NSWCA 204 [188].

[8] Hail Creek Holdings Pty Ltd & Ors v O'Loughlin (No 2) [2024] QLC 6 [29] - [33].