Kim Investments GC Pty Ltd v Commissioner of State Revenue

PROCEDURE - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - GENERAL PRINCIPLES AND EXERCISE OF DISCRETION - where the Court delivered judgment in this matter on 23 January 2026 answering separate questions pursuant to r 483 of the Uniform Civil Procedure Rules 1999 (Qld) - where the issue raised by those separate questions was whether at the time the appellant filed its appeal from the Commissioner's objection decision, it had paid the whole of the amount of the tax payment interest payable under the Assessment as required by s 69(1)(b) of the Taxation Administration Act 2001 (Qld) (TA Act) - where the Court determined that the appellant had not satisfied the requirement in s 69(1)(b) of the TA Act and did not enliven the right to appeal the Commissioner's objection decision - where the Commissioner sought final orders that the appeal be dismissed, and that appellant be ordered to pay the costs of the appeal on the standard basis - where the appellant submits that there should be no order as to costs because, in answering the separate questions, the court was considering whether it had jurisdiction under the TA Act to hear and determine the appeal against the Commissioner's objection decision - whether the determination of the separate questions is an "event" for the purposes of r 681 - whether costs should be ordered in accordance with the general rule under r 681(1) of the UCPR

Taxation Administration Act 2001 (Qld), s 69

Uniform Civil Procedure Rules 1999 (Qld), rr 483, 681

Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) 77 ALJR 1806; [2003] HCA 55, cited

Courtney v Chalfen [2021] QCA 25, applied

Hazeldell Ltd v The Commonwealth (1924) 34 CLR 442; [1924] HCA 36, cited

Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975, cited

Kim Investments GC Pty Ltd v Commissioner of State Revenue [2026] QSC

KMB v Legal Practitioners Admissions Board (No 2) [2017] QCA 146; [2018] 1 Qd R 500, cited

Western Australia v Collard [2015] WASCA 86, cited

[1] I delivered judgment in this matter on 23 January 2026,[1] answering separate questions pursuant to r 483 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). The critical issue raised by those separate questions was whether, at the time Kim Investments filed its appeal from the Commissioner's objection decision, it had paid the whole of the amount of the tax payment interest payable under the Assessment as required by s 69(1)(b) of the Taxation Administration Act 2001 (Qld) (TA Act). I determined that Kim Investments had not satisfied the requirement in s 69(1)(b) and, consequently, had not enlivened the right to appeal the Commissioner's objection decision.

[2] In those circumstances, the Commissioner sought final orders that the appeal be dismissed, and that Kim Investments be ordered to pay the costs of the appeal on the standard basis.

[3] Directions were made for Kim Investments to file written submissions if it wished to contend for any different orders than those sought by the Commissioner.

[4] On 30 January 2026, Kim Investments filed written submissions on costs. Kim Investments has not made any submissions opposing an order dismissing its appeal. That is not surprising; it follows from the answers to the separate questions. As to costs, Kim Investments submits that there should be no order as to costs.

[5] On 6 February 2026, the Commissioner filed submissions in reply on costs.

[6] This judgment deals with the outstanding issue of costs.

[7] The effect of the Commissioner's position is that, because Kim Investments' appeal is to be dismissed, the costs of and incidental to that appeal should follow the event.

[8] This position reflects what is sometimes referred to as the general rule as to costs, as expressed in r 681(1) of the UCPR which provides that the costs of a proceeding are in the discretion of the court but follow the event unless the court orders otherwise. In Courtney v Chalfen,[2] the Court of Appeal held that the court should only depart from the general rule if there are special or exceptional circumstances. The rationale for the general rule is that costs are not awarded to punish an unsuccessful party, but as a means of indemnifying the successful party.

[9] Kim Investments submits that the general rule should not apply in the present case because, in answering the separate questions, the court was considering whether it had jurisdiction under the TA Act to hear and determine the appeal against the Commissioner's objection decision.

[10] In Hazeldell Ltd v The Commonwealth,[3] Isaacs ACJ observed that it is the very first duty of any court, in approaching a cause before it, to consider its jurisdiction. From there, Kim Investments submits that determining the proper limits on the court's jurisdiction under the TA Act is a matter of significant importance to the court's oversight of the executive's administration of duty imposed on citizens of the state. Neither of these propositions is controversial.

[11] From that position, Kim Investments submits that by answering the separate questions, the court was not quelling a dispute between the parties where generally costs would follow the event. It argues that the statutory provision conferring jurisdiction on the court was hampered by constructional difficulties and, through the hearing of the separate questions, both parties sought to assist the court to resolve those difficulties. In that context, the answers to the separate questions do not constitute a win by the Commissioner in a dispute between the parties; instead, they are the court's independent determination of its own jurisdiction.

[12] In that regard, Kim Investments draws a distinction between the present case, in which it submits the task of the court was to select its own construction of the provision (whatever the parties might submit), and a matter where the court was required to decide between two competing constructions propounded by the parties and where it ought not select a third construction of its own.[4]

[13] Kim Investments also submits that the determination of the separate questions was a matter of general importance extending beyond its own appeal from the Commissioner's objection decision.

[14] Accordingly, Kim Investments submits that it ought not bear the burden of costs which the Commissioner (a representative of the State) has incurred in assisting the court to determine its jurisdiction conferred by the State legislature in language which was productive of the constructional difficulties.

[15] I do not accept Kim Investments' submission that the outcome of the determination of the separate questions was not an "event" for the purposes of r 681.

[16] As the Commissioner submits, the appeal was private litigation which determined existing rights in a dispute between two parties.[5]

[17] After the appeal was filed, the Commissioner explained to Kim Investments that the appeal was incompetent because it had not paid the whole of the tax and late payment interest and invited Kim Investments to discontinue the appeal. Kim Investments did not accept that the appeal was incompetent and proposed that the issue be determined by way of the separate questions. The Commissioner consented to that course.

[18] In that way, the parties identified the question of the court's jurisdiction to hear and determined the appeal as the issue upon which they were joined. The determination of that issue in favour of the Commissioner was an identifiable "event" to which r 681 applies. That position was not altered by the fact that the resolution of the separate questions was directed towards a determination whether the appeal was competent.

[19] Further, Kim Investments has not demonstrated that the circumstances of this case warrant a departure from the general rule as to costs.

[20] As the Commissioner accepts, there had been no previous judicial consideration of the question whether s 69(1)(b) of the TA Act required payment of interest accruing after the date of the assessment. But that circumstance does not justify denying the Commissioner the partial indemnity provided for by the application of the general rule. Much litigation involves some element of public interest going beyond the interests of the parties. Commonly, a decision in a particular case will have application to other similar prospective cases, or it will involve the proper construction of important legislative provisions, or it will clarify the law by resolving conflicting lines of authority. This feature is inherent in common law litigation. It provides no ground for departure from the usual rule as to costs.[6]

[21] The fact that Kim Investments sought to gain a private benefit from the appeal is also relevant. Departure from the general rule on the grounds that the litigation is of public importance usually occurs in cases where the unsuccessful party did not seek to derive a private benefit from the litigation. This does not mean that the absence of a private benefit will always justify a departure from the general rule. Nor does it mean that the existence of a private benefit will necessarily preclude such a departure. The nature and extent of a private benefit must be balanced against the public importance of the litigation. The prospect of a private benefit that significantly outweighs the public importance will ordinarily weigh heavily against departing from the usual rule as to costs.[7] I am satisfied that is the case here.

[22] Ultimately, I am not persuaded that the circumstances of this case are of the rare and exceptional character that might justify a departure from the usual rule as to costs. Accordingly, I will order that Kim Investments pay the Commissioner's costs of and incidental to the appeal, including any reserved costs, to be assessed on the standard basis if not agreed.

[1] Kim Investments GC Pty Ltd v Commissioner of State Revenue [2026] QSC 4. Terms defined in that

[2] [2021] QCA 25, [4].

[3] [1924] HCA 36; (1924) 34 CLR 442, 446.

[4] Kim Investments cites Australian Communication Exchange Ltd v Deputy Commissioner of Taxation

[2003] HCA 55; (2003) 77 ALJR 1806, 1813-1814 [41] as an example of the latter where, a majority of the High Court

questioned the appropriateness, at least in the circumstances of that particular case, of the adoption by

the intermediate appellate court of an approach, and a conclusion, that neither party had sought.

[5] Cf KMB v Legal Practitioners Admissions Board (No 2) [2017] QCA 146; [2018] 1 Qd R 500, 511 [47].

[6] Western Australia v Collard [2015] WASCA 86, [32]; Hollier v Australian Maritime Safety Authority

(No 2) [1998] FCA 975.

[7] Western Australia v Collard [2015] WASCA 86, [46].