Mun Wha Education (Masan College Australia) Pty Ltd & Anor v Gold Coast City Council & Ors

[3] The appeal concerns a property at Parkwood and Council's refusal of a development application which would have converted land presently used for the purposes of a golf course to a residential use. Materially, the development application to which the appeal relates was lodged on 20 February 2006 by another corporation, the owner at the time, Fedwood Pty Ltd. The application had not been determined by Council when Fedwood sold the land to Mun Wah under a contract dated 2 April 2007 which settled on 24 July 2007. The contract did not, it appears, assign any rights in respect of the extant appeal from Fedwood to Mun Wah. On 13 August 2007 Council issued a decision to refuse the application to Fedwood. Mun Wah became the registered proprietor of the land about a fortnight later, on 29 August 2007. It then lodged the present notice of appeal on 21 September.

[4] On 23 October 2007 Fedwood and Mun Wah executed a deed assigning rights in the application to Mun Wah. On 14 November this court made orders for the determination of preliminary points including, in particular, the question whether Mun Wah was, at the relevant time, an applicant for the development application and had standing to bring the appeal (and, if not, whether Fedwood could be substituted, or whether time ought to be extended) which was listed for hearing on 11 December 2007. On 23 November, however, Mun Wah commenced a fresh appeal (BD 3367/07). It was not until 7 December, however, that Mun Wah's solicitors advised the other parties it intended seeking an adjournment of the hearing on 11 December and that it would be seeking further directions, in the new appeal, on 14 December.

[5] Schedule 10 of the Integrated Planning Act 1997 (IPA) defines "applicant" relevantly for the purposes of Chapter 4 so as to include "... the person in whom the benefit of the application vests". The question addressed in a number of decisions of this Court, and the Court of Appeal, is whether or not Mun Wah may, in the circumstances described above, qualify under the definition.

[6] Senior Counsel for the applicant not unreasonably described the meaning and effect of this provision as a "labyrinth"[1]. So much is apparent, with respect, from the decisions of this court in Architects Dewar & Associates Pty Ltd v Redland Shire Council [1997] QPELR 144, Ogle v Pine Rivers Shire Council [2005] QPELR 291, Sushames v Pine Rivers Shire Council [2005] QPEC 96, and Secured Lifestyle Pty Ltd v Burdekin Shire Council [2007] QPEC 079; and, the decision of the Court of Appeal in Sushames v Pine Rivers Shire Council [2006] QCA 171; [2007] 1 Qd R 382.

[7] The fact the assignment occurred after the appeal began may have the effect, those cases suggest, of making it quite a serious and complex question whether Mun Wha would obtain a favourable answer to the questions it has posed as preliminary points in the current appeal. Senior counsel for Mun Wah frankly conceded that its prospects may be better (and its course easier) in the new appeal, also brought in Mun Wah's name but at a time when it is plainly the lawful owner. That appeal has been lodged in conjunction with an application under IPA s 4.1.55 to enliven the court's discretion to allow an appeal outside the usual time limit. That possibility - nothing more can reasonably be said at this point - seemed to me a sufficient basis to accede to the applicant's request to adjourn the present application for the time being.

[8] Costs are in this jurisdiction a creature, of course, of statute. The costs provisions in IPA s 4.1.23 generally provide that each party will pay its own costs, but then set out a variety of circumstances when orders might be made. The nature and effect of the provision was, with respect, helpfully explained by his Honour Judge White in TW Headley Pty Ltd v Cairns City Council [2004] QPELR 159, at 160:

"... s 4.1.23 is a code limiting the circumstances in which the court may order that a party pay the costs of another party for the proceeding. In my view, the proper construction of subsection (2) requires firstly, that an applicant for an order for costs satisfy the court of the relevant conditions set out in paras (a) to (i). Once that condition is satisfied it is then for the court to consider whether or not to exercise its discretion make the order for costs.

It should be remembered that an order for costs is not made with a view to inflicting some form of punishment on the party against whom it is made. An order for costs is intended to compensate the party in whose favour it is made for having been caused to incur such costs by the party against whom the order is made. In my view it is wrong to impose some additional requirement of culpability on the part of the respondent to the application in order to justify the order."

[9] The particular provision in s 4.1.23(2) upon which the respondents rely is (c) which relevantly provides:

"(2) However, the court may order costs for the proceeding (including allowances to witnesses attending for giving evidence at the proceeding) as it considers appropriate in the following circumstances -

(c) A party has not been given reasonable notice of intention to apply for an adjournment of the proceeding."

[10] It is clear that a "proceeding" in the subsection includes not just the initiating proceeding but its relevant, constituent parts: Gold Coast City Council v Metrostar Pty Ltd [2005] QPELR 17; Mudie v Gatton Shire Council [2002] QPEC 030.

[11] As correspondence tendered in these proceedings and exhibited to various affidavits shows, Mun Wha's initial position was that reflected in the preliminary questions about which Rackemann DCJ made orders on 14 November 2007. Later, after the institution of the second appeal proceeding on 23 November 2007 there was further correspondence from its solicitors advising the other parties of the possibility of an amendment to the preliminary questions posed in the current proceeding with the addition of a further question, namely, whether time should be extended for the filing of the new appeal until 23 November 2007. Later still, apparently upon further reflection, the applicant resolved to seek an adjournment of the present application in the terms described earlier.

[12] It is clear that notice of the intention to seek the adjournment was only given one clear business day before the allocated hearing date. That does seem to clearly fall within the ambit of the circumstances contemplated by subsection 4.1.23(2)(c), particularly when, as Senior Counsel for Mun Wha frankly and properly conceded, there may ultimately be no need for the court to determine the questions sent for adjudication under the order of 14 November[2].

[13] Gold Coast City Council sought an additional order that the costs include the outlays involved in retaining two Counsel. As Mun Wha had also retained Senior Counsel and in light of the acknowledged complexity of the arguments which were, originally, to have been addressed, I do not think that is unreasonable. The order will be, then, that the applicants pay the costs of and incidental to the adjournment on 11 December 2007 of the respondent (including the costs of retaining Senior and Junior Counsel) and the co-respondents by election, assessed on the standard basis.

[14] The assessment process has been the subject of recent changes of practice, and Practice Directions. The parties may jointly or severally embark upon the process described in clause 4 of Practice Direction 3 of 2007 or, if necessary, the other interim arrangements provided under Practice Direction 5 of 2007. I will give leave to apply in those respects.