Monday, 27 February 2017

Costs Judgement - Drywound to pay part of other parties' costs for the Appeal

The Planning and Environment Court today (28 February 2017) issued the judgement on the parties' applications for costs in relation to the Drywound Pty Ltd Appeal against the Council's decision in May 2015 to refuse the Drywound Application for a motocross facility in the Adare/Vinegar Hill area.

You can find a copy of the judgement here (until such time as it appears on the eCourts website, when a link to it will be posted here).

The summary of the judgement is given below.  The "appellant" is Drywound Pty Ltd (Colby Steer's company); the "respondent" is the Lockyer Valley Regional Council; the "co-respondents" are the group of individual community members who had legal representation and engaged expert witnesses (i.e. the group supported by Lockyer Community Action Inc.) - Keep Lockyer Rural Inc. is not included because they did not have legal representation or engage expert witnesses.

The summary:

"For the reasons given:
(i) the appellant's application for costs is dismissed;
(ii)  the appellant is to pay the respondent's costs of the appellant's costs application, assessed on a standard basis;
(iii) the appellant is to pay the represented co-respondents by election's costs of the proceeding from 14 December 2016, assessed on the standard basis;
(iv) the appellant is to pay the respondent's costs of the proceeding:
      A. from 26 September 2016 to 13 December 2016 on the standard basis; and
      B. from 14 December 2016 on an indemnity basis; and
(v) the respondent's application for costs is otherwise dismissed."

Of course there is a difference between a direction from the court that Drywound Pty Ltd should pay the costs of a party to the Appeal and those costs actually being paid.

See the full judgement for a reasoned argument of how these costs were arrived at.  There is an explanation below of what constitutes "standard basis" and "indemnity basis" for calculating costs.

Accessing Other Documents Filed During the Appeal

If you want to access other documents that were filed during the Appeal you can go to the eCourts website, scroll down to Party Details and type "Drywound Pty Ltd" (without the " ") in the Last/Company Name field.  Hit Return or click the "search" button at the bottom of the page.  Then click on "View file details" and scroll down to Documents.

You can download any of the pdf files under the heading "Pages" - unfortunately the Document Type and Document Description aren't very helpful in indicating what the contents of a file will be.

Costs in Legal Proceedings

 Costs in legal proceedings can be assessed in two different ways: standard basis and indemnity basis.  The following explanation is from Costs Orders in Queensland Courts.

Standard basis of assessment

Unless otherwise specified, costs are assessed on a standard basis. This means the amount of costs to be paid are calculated by taking into account only those costs actually incurred by the party which were necessary or proper for the attainment of justice or for enforcement or defence of rights (rule 702, UCPR). The costs assessor must apply the court's scales of costs which are set out in the UCPR.

As a result, standard costs only compensate the successful party for part of the fees (around 60-75%) they pay to their solicitor. If the solicitor has charged more for work done than that specified in the scale of costs, or if there is an additional amount to be paid to the solicitor under the retainer, then this will not be included in an assessment of costs on a standard basis.

Indemnity basis of assessment

If costs are awarded on an indemnity basis, then costs are calculated by taking into account all costs reasonably incurred and of a reasonable amount, having regard to:
(a) The court's scale of fees; (b) Any costs agreement between the party to whom the costs are payable and the party's solicitor; and (c) Charges ordinarily payable by a client to a solicitor for the work (rule 703, UCPR).

The only ground for disallowing items of indemnity costs is if they are of an unreasonable amount or were unreasonably incurred.

Costs may be awarded on an indemnity basis where the court finds that the court proceeding had no legal basis. If the court awards costs to the successful party on an indemnity basis, the unsuccessful party may need to pay up to 90-95% of the fees and costs actually incurred by the successful party.

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