Whiting v Somerset Regional Council

[1] The successful applicant in these proceedings applies for a further order and for costs. In my previous judgment,[1] I declared that the Council's resolution by which it resolved to levy a special charge on the applicant's properties was invalid and of no effect. I now have a written submission on behalf of the applicant seeking an order that the rates notices, in which the special charge had been claimed together with interest, should be set aside to the extent that they included those amounts. In my view, no further order is required. According to the declaration, it is already the case that the special charge the subject of that resolution has been held to be irrecoverable, as has the interest upon that charge. It is to be expected that the Council will issue substitute notices, if it has not done so already.

[2] As to the costs of the proceedings, the Council argues that it should be ordered to pay no more than 50% of the applicant's costs for these reasons. The applicant had challenged the imposition of the special charge upon four bases, each of which failed, and succeeded upon a ground which was not argued by him. It is unnecessary to set out again here those arguments from the applicant which are discussed in my judgment. The outcome was a rejection of those arguments and a declaration of invalidity upon a particular interpretation which did not precisely accord with the applicant's submissions. Accordingly, so the Council argues, almost the entire hearing was taken up with matters upon which the applicant failed or which had little or nothing to do with his ultimate success.

[3] Ordinarily, the fact that a successful plaintiff or applicant fails on particular arguments does not mean that he should be deprived of some of its costs or require an apportionment of costs between issues.[2] However, there are two features in the present case which, in my conclusion, warrant a departure from the general rule. The first is that most of the factual questions pursued by the applicant were bound to be inconsequential. In particular, there was the applicant's case that there was no rational basis for quantifying the special charges in the total of $3,600, because the actual cost of the works, so the applicant alleged, was $3,076.52. As I held, the validity of the decision did not depend upon the accuracy of the Council's estimate of the cost of the works. Indisputably, the Council had received an estimate which it accepted. The cost of preparing and presenting evidence as to this false issue could not have been insignificant. The second consideration is the amount of the special charges which were challenged in these proceedings. The applicant brought these proceedings for a monetary gain of but $3,600 (with some small interest component). His case did involve a matter of general importance and he should not be denied his costs simply because of the small value to him of the outcome. But this consideration makes it more difficult to accept as reasonable the way in which the applicant's case was pleaded and argued, because the introduction of false factual enquiries is to be particularly discouraged where the resulting legal costs would indeed be greater than the worth of the plaintiff's cause of action.

[4] In these circumstances, it is appropriate that the applicant recover only part of his costs. It will be ordered that the respondent pay to the applicant one half of his costs of the proceedings including reserved costs.

[1] Whiting v Somerset Regional Council [2010] QSC 200.

[2] Australand Corporation (Qld) Pty Ltd v Johnson & Ors [2007] QSC 128, [17]; BHP Coal Pty Ltd and Ors v O & K Orenstein & Koppel AG and Ors (No 2) [2009] QSC 64, [8]; Yara Nipro Pty Ltd v Interfert Australia Pty Ltd [2010] QCA 164.