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[2009] QCA 164
General information, not legal advice.
Court of Appeal (Qld)
2009-06-12
Keane, Holmes and Fraser JJA, Judgment of the, Court
Original judgment source is linked above.
Department of Environment and Resource Management for the third respondent
[1] THE COURT: The application by Regional Land Development Corporation No 1 Pty Ltd ("Regional") for leave to appeal against the decision of the Planning and Environment Court ("the P & E Court") was dismissed on 26 May 2009. The second respondent to that application, Velcourt Properties Pty Ltd ("Velcourt"), seeks an order that Regional pay Velcourt's costs of the application assessed on the indemnity basis.
[2] One of the bases of Velcourt's application is that there was no arguable merit in the proposed appeal.[1] Indeed, as Velcourt points out, Regional was entitled to appeal only on the ground of error of law, and its draft notice of appeal did not address the need to articulate the error of law which was said to have occurred.
[3] In these circumstances, Regional's pursuit of an application which was not even framed so as to overcome the statutory limitation on the availability of an appeal to this Court was, as Velcourt submits, quite unreasonable.
[4] This submission must be accepted, and this Court should exercise its discretion as to costs with a view to ensuring that Velcourt is burdened to the least possible extent by the costs which it was forced to bear by the unreasonable conduct of Regional.
[5] The Court orders that Regional pay Velcourt's costs of and incidental to Regional's application for leave to appeal to be assessed on the indemnity basis.
[1] Cf Millmerran Shire Council v Smith & Anor [2009] QCA 103.
Regional Land Development Corp No 1 P/L
Banana SC & Ors