Fairhill Coking Coal Pty Ltd v Comiskey & Anor [2025] QLC 11 | Case summary

Land Court of Queensland|2025-05-22

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INDEMNITY COSTS - RELEVANT CONSIDERATIONS GENERALLY - where the applicant provided submissions on the issue of costs - where the applicant sought an order for indemnity costs following the refusal of a Calderbank offer by the respondents - whether the circumstances warrant the Court's discretion in favour of an indemnity costs order - indemnity costs order refused

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - COSTS OF AND INCIDENTAL TO PROCEEDING - standard costs order refused

Doerr v Gardiner (No 2) [2024] QCA 21, cited

ERO Georgetown Gold Operations Pty Ltd v Henry (No 2) [2016] QLAC 3; (2016) 37 QLCR 186, cited

Greer v Greer [2021] QCA 174, cited

Hail Creek Holdings Pty Ltd & Ors v O'Loughlin & Ors (No 2) [2024] QLC 6, cited

Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors (No 2) [2012] QLAC 2; (2012) 33 QLCR 43, cited

A Thompson KC and A Nicholas (instructed by McCullough Robertson) for the applicant

[1] On 14 May 2025, the Court delivered reasons in two competing General Applications.
[2] Those applications were about whether there had been a "material change in circumstances for the mining lease" such as to engage section 283B of the Mineral Resources Act 1989.
[3] The parties were invited to make submissions about the form of Orders that should follow the conclusions expressed in the reasons by 21 May 2025.
[4] Fairhill provided submissions asking for (1) the proceeding to be dismissed and (2) an order that the Comiskeys pay Fairhill's costs (on an indemnity basis after 24 December 2024 and on a standard basis earlier than that).
[5] The Comiskeys provided no submissions.
[6] I agree with Fairhill that the proceeding ought to be dismissed. There is no basis for the Court to move forward under section 283B of the Mineral Resources Act without there being a "material change in circumstances for the mining lease".
[7] On the question of costs:

(a) "before costs are awarded on an indemnity basis something more than success or failure must usually be shown. Indeed, it will usually be the case that something more than the failure to better an informal offer must be shown. Each case must, however, depend on its particular facts and circumstances": Doerr v Gardiner (No 2);[1]

(b) the principles with respect to orders of indemnity costs are well known,[2] as are the decisions of the Land Appeal Court about costs orders generally.[3] I also note the helpful summary provided by Member McNamara in Hail Creek Holdings Pty Ltd & Ors v O'Loughlin & Ors (No 2);[4]

[8] Fairhill points to the terms of a Calderbank offer it made to the Comiskeys on 24 December.[5] It further says that costs should follow the event - and that it enjoyed success in both General Applications.
[9] My view is that the questions raised in the competing General Applications were sufficiently complex that it is not possible to conclude that the Comiskeys acted unreasonably in rejecting the Calderbank offer. There is no other basis for an order for indemnity costs.
[10] As for standard costs, while the Comiskeys failed in both General Applications, my view is that each party should bear their own costs because:

(a) as mentioned above, the questions raised in the competing General Applications were sufficiently complex that each side put forward a viable argument in support of their position; and

(b) the Supreme Court's reasons complicate the assessment of Fairhill's success. The Supreme Court made observations that appear to have encouraged the Comiskeys to pursue the action in this Court. It was reasonable for the Comiskeys to respond to the Supreme Court's reasons by arguing what they did before this Court.

[11] The orders are:
1. The proceeding is dismissed.
2. The parties are to bear their own costs.

[2] Doerr v Gardiner (No. 2) [2024] QCA 21 at [16]- [21]; Greer v Greer [2021] QCA 174 at [8]- [10].

[3] Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors (No 2) [2012] QLAC 2; (2012) 33 QLCR 43 at [4]; ERO Georgetown Gold Operations Pty Ltd v Henry (No 2) [2016] QLAC 3; (2016) 37 QLCR 186.

[4] [2024] QLC 6 at [13]- [15], [42] and [48].

[5] Affidavit of Peter William Stokes filed 21 May 2025, paragraph 5.

Fairhill Coking Coal Pty Ltd v Comiskey & Anor

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