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[2026] QCA 37
procedural. No order as to the costs of the appeal. The Court considered that this best reflected the substantive outcome, in which neither party had enjoyed success in a material sense ([4], [8]-[9]).
1 cited instrument linked from this judgment.
The Council asked for half its appeal costs because it obtained leave and the appeal was partly allowed. Genamson asked for its costs, pointing to the Council's change in position and the costs it said had been wasted. The Court ordered neither side to pay the other's appeal costs. It reasoned that the Council had abandoned its earlier argument, but Genamson's interpretation was also incorrect. The preliminary question was not properly equipped to resolve the relevant issues, and answering it would not have moved the case forward. The appeal displaced the Land Appeal Court's answer but sent the proceedings back to the Land Court for determination.
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1,908 words · generated 08/10/2026
This is a short, separate judgment about the costs of an appeal, not a decision that finally determines the underlying land dispute. The Court of Appeal, comprising Boddice JA, Bradley JA and Doyle JA, delivered it on 6 March 2026 after hearing the costs question on the papers. The dispute was between Moreton Bay Regional Council, the applicant for the costs order and appellant in the appeal, and Genamson Holdings Pty Ltd, the respondent.
The costs question followed the Court's merits orders of 20 February 2026. Paragraph 1 explains that those orders dealt with the merits and gave the parties an opportunity to make written costs submissions. The earlier merits decision is identified in footnote 1 as Moreton Bay Regional Council v Genamson Holdings Pty Ltd [2026] QCA 23. The present judgment does not reproduce that decision's full reasoning, but summarises aspects of the appeal relevant to costs.
The Council sought an order that Genamson pay half of the Council's appeal costs. It relied on the proposition that costs ordinarily follow the event, its success in obtaining leave to appeal, and the fact that the appeal was allowed in part ([2]). The Council also submitted that its lack of success on part of the appeal was not explained by any particular success on Genamson's part.
Genamson sought the opposite order: that the Council pay Genamson's appeal costs. It argued that the Council departed, during oral argument, from the contention it had advanced in its statement of facts and in both courts below. Genamson said that the change had caused it to incur costs that were largely wasted. It also relied on what it described as the Council's concession that the preliminary question, as framed, had been correctly answered, notwithstanding the Court's disagreement with the reasoning behind that answer ([3]).
The Court made neither party pay the other's appeal costs. Its formal order was: “No order as to costs of the appeal” ([9]).
The Court focused on the actual substance of the appeal, rather than treating the procedural fact that the appeal was allowed in part as enough to determine costs. It expressly said that no order better reflected the substantive outcome ([4]).
Two features of the parties' positions counted against treating either as the successful party. First, the Council had pursued below the position that the preliminary question should be answered “yes”, but abandoned that contention on appeal ([5]). Second, Genamson's construction, advanced below and again on appeal, had been determined to be incorrect. The Court therefore considered that the basis on which the Land Appeal Court had given a negative answer had not been upheld either ([6]).
The Court also identified problems with the preliminary question and the materials and arguments brought to bear on it. The question had not been framed with appropriate consideration of the facts and range of legal issues that could arise ([7]). The parties had not addressed relevant matters about the scope and operation of the taxation and assessment of costs regimes under the former Rules of the Supreme Court or the Uniform Civil Procedure Rules (UCPR) ([7]). The judgment does not set out the relevant provisions or decide their operation; it records their significance to why the preliminary question could not properly be considered on the arguments then made.
The Court further noted that a different construction of s 16(1A) to (1C) of the Acquisition of Land Act 1967 (Qld) might be preferred once the relevant matters were addressed. That possibility had not, at that point, been advanced by Genamson or directly addressed by the Council ([7]). The judgment does not decide which construction is correct.
In that setting, simply answering the question “yes” or “no” would have lacked utility: the answer would not advance the proceedings towards determination or have other utility ([7], referring to the earlier merits reasons at [40]). The Court described the result as displacing the Land Appeal Court's answer while remitting the proceedings to the Land Court for determination. It concluded that neither party had enjoyed success “in [a] material sense” ([8]). That conclusion explains why neither party received its costs.
The judgment is a case-specific costs ruling. It does not announce a new general test for costs or give a comprehensive account of the rules governing costs in Queensland appeals. The Council submitted that costs ordinarily follow the event, but the Court did not analyse the source, scope or exceptions to that proposition. Instead, it assessed the outcome and the conduct and positions relevant to this appeal ([2], [4]-[9]).
Before the costs judgment, the Land Appeal Court had answered the preliminary question in the negative, according to the Court of Appeal's description. The Council appealed from that result, while maintaining below that the question should have been answered yes. In the Court of Appeal, that contention was abandoned. The respondent's construction was also rejected, so the reasoning supporting the negative answer was not upheld ([5]-[6]).
After the appeal, the negative answer was displaced, but the underlying proceedings were remitted to the Land Court for determination. The judgment describes the appeal as allowed in part, while emphasising that neither party had materially succeeded ([8]). The costs order did not award costs to either side.
The judgment identifies, but does not resolve, questions concerning the former Rules of the Supreme Court, the UCPR and the construction of s 16(1A) to (1C) of the Acquisition of Land Act 1967 (Qld). It would therefore go beyond this costs judgment to state what those regimes require or what the correct statutory construction is. Its contribution is narrower: in the circumstances described, partial appellate success did not alone justify a costs award when the preliminary question was inadequate to determine the relevant issues and neither party's substantive position prevailed.
At [4], the Court said: “This more appropriately reflects the substantive outcome of the appeal.” In plain English, the costs order was based on what the appeal had actually achieved, not just its formal label as partly allowed.
At [5], the Court observed that the Council “abandoned that contention on appeal”. That matters because the Council's appeal had been pursued in furtherance of its earlier position that the preliminary question should be answered yes. The judgment does not treat the Council's success in obtaining leave as conclusive of its costs claim.
At [6], the Court said Genamson's construction “has been determined to be incorrect”, while also explaining that the basis for the Land Appeal Court's negative answer could not be said to have been upheld. In plain English, the Court did not regard Genamson as the successful party merely because the preliminary question had initially been answered in the way its position supported.
At [7], the Court identified shortcomings in the framing of the preliminary question and the arguments put before it. The parties had not, by that point, addressed the relevant costs regimes, and another construction of the statutory provisions might be preferred. The Court was describing why the question could not be properly resolved on the case as presented, not deciding the proper construction of those provisions.
At [8], the Court stated that the preliminary question “could neither be answered ‘yes’ or ‘no’ such that in no material sense had either party enjoyed success.” This is the clearest explanation of the costs outcome: neither party had achieved a result that justified being treated as the successful party for costs.
At [9], the Court made its formal order: “there be no order as to costs of the appeal.” That means this judgment does not require either party to pay the other's appeal costs.
The judgment is most directly relevant to a costs question arising after an appeal that formally succeeds in part but does not produce a clear substantive winner. The circumstances the Court identified included an appellant abandoning on appeal the contention it had advanced below, a respondent's construction also being determined to be incorrect, and a preliminary question that was not adequately framed for the factual and legal issues requiring consideration ([5]-[8]).
The case also concerns a situation where the parties had not addressed legal frameworks that the Court considered relevant, and where a further possible construction had not been properly advanced or directly addressed. The Court considered that answering the question on the case as then presented would not usefully advance the proceedings ([7]-[8]).
The judgment should not be read as establishing that no-costs orders are required whenever an appeal is partly allowed, a party changes its position, or a preliminary question is problematic. It records a discretionary outcome on the particular circumstances before the Court. The judgment does not specify a general formula for weighing those factors or state that any one of them would independently determine costs.
The supplied judgment contains no discussion of later cases applying, distinguishing or otherwise treating this costs decision. It was delivered on 6 March 2026, and the text provided contains no subsequent judicial treatment. Accordingly, no claim about its later reception can be made from this source.
The judgment itself refers to the Court of Appeal's earlier merits reasons in Moreton Bay Regional Council v Genamson Holdings Pty Ltd [2026] QCA 23, including paragraph references to [17], [35(b)]-[35(d)], [39], [38], [73], [76], [68] and [40] in footnotes and at [5]-[7]. Those are references to the earlier reasons in the same proceeding, not later treatment by another court. The present costs judgment relies on those references to summarise procedural and merits context, but does not reproduce the earlier reasons' full analysis.
No other case citations appear in the provided judgment. It would therefore be unsupported to identify authorities as applied, followed, distinguished or criticised in this costs decision.
Several substantive matters are expressly left unresolved in this judgment. First, the Court says the relevant scope and operation of the taxation and assessment of costs regimes under the former Rules of the Supreme Court or the UCPR had not been addressed by the parties ([7]). The costs judgment does not determine how those regimes apply.
Second, the Court notes that another construction of s 16(1A) to (1C) of the Acquisition of Land Act 1967 (Qld) might be preferred, but says that construction had not been advanced by Genamson or directly addressed by the Council ([7]). The text does not identify the alternative construction or decide which interpretation is correct.
Third, the underlying proceedings remained for determination in the Land Court. The Court of Appeal's costs reasons say that the appeal displaced the Land Appeal Court's answer and the matter was remitted ([8]). The ultimate determination of the underlying proceedings is not included in the supplied text.
Finally, this judgment does not set out a broad rule for costs where an appeal is allowed in part but neither party materially succeeds. Its stated reasoning is tied to the particular positions taken, the problems with the preliminary question, the issues not addressed, and the limited utility of answering that question on the existing basis. Any broader use of the decision would need to account for those limits and the full reasons in the related merits decision.
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Moreton Bay Regional Council v Genamson Holdings Pty Ltd [No 2] [2026] QCA 37
PARTIES: MORETON BAY REGIONAL COUNCIL / (applicant) / v / GENAMSON HOLDINGS PTY LTD / ACN 053 174 271 / (respondent)
FILE NO/S: Appeal No 4306 of 2025 / LAC No 001 of 2025
DIVISION: Court of Appeal
PROCEEDING: Further Orders – Costs
ORIGINATING COURT: Land Appeal Court at Brisbane – [2025] QLAC 4 (Cooper J, President Stilgoe OAM and Member Loos)
DELIVERED ON: 6 March 2026
DELIVERED AT: Brisbane
HEARING DATE: Heard on the papers
JUDGES: Boddice JA, Bradley JA, Doyle JA
ORDER: No order as to costs of the appeal.
CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the applicant seeks an order that the respondent pay one half of its costs of the appeal – where the applicant points to its success in obtaining leave to appeal and the fact that the appeal was allowed in part – where the respondent submits that the applicant should pay its costs of the appeal in circumstances where the applicant has departed from its contention below which formed the basis of the preliminary question
COUNSEL: D R Gore KC, with D A Quayle, for the applicant / R J Anderson KC, with W D J Macintosh, for the respondent
SOLICITORS: Legal Services Department of Moreton Bay for the applicant / HWL Ebsworth Lawyers for the respondent
THE COURT: On 20 February 2026 this Court made orders dealing with the merits of this appeal and allowing the parties an opportunity to make written submissions as to costs of the appeal.1 This judgment deals with those costs.
The applicant (Council) has invited the Court to make an order that the respondent (Genamson) pay one half of the Council’s costs of the appeal.2 It submitted this was the appropriate order given:Ordinarily costs should follow the event;It succeeded in obtaining leave to appeal; andIt also was successful in the sense that the appeal was allowed in part. The part upon which the Council was not successful in its appeal it was submitted “is not explained by any particular success on Genamson’s part”: Council’s submissions at [9].
Genamson on the other hand submitted the Council should pay its costs of the appeal.3 It supports this on the bases:That the Council, for the first time in oral argument, departed from the contention it had set out in its statement of facts, which formed the basis of the preliminary question asked and which it had advanced in both courts below;Accordingly, Genamson has incurred costs which were largely wasted due to the shift in approach of the Council;It remains the case (on the Council’s concession) that the question as framed was correctly answered, despite this Court’s expressing disagreement with the course of reasoning that led to that answer.
In our view there should be no order as to costs of the appeal. This more appropriately reflects the substantive outcome of the appeal. This is for a number of reasons.
The Council appealed in furtherance of the position it had advanced below that the preliminary question should have been answered ‘yes’. However, it abandoned that contention on appeal.4
On the other hand, the construction advanced by Genamson below and again on appeal has been determined to be incorrect such that the basis upon which the Land Appeal Court provided a negative answer to the question also could not be said to have been upheld on appeal.
Aspects of the appeal which featured both in its hearing and in the reasons for judgment were that:The preliminary question itself had not been framed with appropriate consideration to the factual and range of legal issues which would arise.5The parties had not, to that point, addressed matters which were relevant to the issue of construction, namely the scope and operation of the taxation and assessment of costs regimes under the former Rules of the Supreme Court or the UCPR to enable the preliminary question to be properly considered and answered.6Moreover, once that had occurred, the possibility existed that some other construction of section 16(1A) to (1C) of the Acquisition of Land Act 1967 (Qld) might be preferred, but one which had not to that time been advanced by Genamson or addressed directly by the Council.7For this Court to answer the question as then framed would have lacked utility as the answer which could be given would not advance the proceedings towards determination or have other utility.8
The result was that the preliminary question could neither be answered “yes” or “no” such that in no material sense had either party enjoyed success. Rather leave was granted and the appeal allowed in part in order to displace the answer given by the Land Appeal Court but otherwise to remit the proceedings to the Land Court for determination.
For these reasons the appropriate order of the Court is that there be no order as to costs of the appeal.
See the orders and reasons cited as Moreton Bay Regional Council v Genamson Holdings Pty Ltd [2026] QCA 23 (Reasons). ↩
Submissions filed 24 February 2026. ↩
Submissions filed 27 February 2026. ↩
Reasons [17], [35(b)]-[35(d)], [39]. ↩
Reasons [38]. ↩
Reasons [73], [76]. ↩
Reasons [68]. ↩
Reasons [40]. ↩
Moreton Bay Regional Council
Genamson Holdings Pty Ltd [No 2] [2026] QCA 37
No order as to the costs of the appeal. The Court considered that this best reflected the substantive outcome, in which neither party had enjoyed success in a material sense ([4], [8]-[9]).