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Tan & Anor V Council of the City of Gold Coast & Anor [2000] QSC

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Tan & Anor V Council of the City of Gold Coast & Anor [2000] QSC SUPREME COURT OF QUEENSLAND File No 1621 of 1993 BETWEEN: THOMAS TAN Applicant - First Defendant AND: BONNYSIDE PTY LTD ACN 010 729 Applicant - Second 085 Defendant AND: COUNCIL OF THE CITY OF GOLD Respondent - First Third COAST Party AND: COUNCIL OF THE SHIRE OF Respondent - Second Third BEAUDESERT Party MOYNIHAN J - ORDER FOR COSTS ORDER AS TO COSTS DELIVERED: 27 June 2000 JUDGMENT DELIVERED ON: 5 June 2000 HEARING DATE: No appearance required - written submissions as to costs submitted to the Court. ORDER: 1. The Third Party action against the Second Third Party is dismissed. 2. The First Third Party should pay: a. the Applicant's and the Second Third Party's costs of the application to be assessed on the standard basis; and, b. the Second Third Party's costs of and incident to its joinder as a third party to be assessed on the standard basis. SUBMISSIONS: Mr KN Wilson - for the First and Second Defendants Mr WG Everson - for the First Third Party Mr RN Traves - for the Second Third Party [1] It is necessary to dispose of the costs of the separate determination of a question pursuant to Chapter 13 Part 5 of the Uniform Civil Procedure Rules. [2] The applicants, the defendants in the action, sought a separate determination as to which of the respondents (the first third party - the Gold Coast City Council or the second third party - the Beaudesert Shire Council) had succeeded to the liabilities of the former Albert Shire Council. [3] The application was brought in an action where the plaintiff sued the applicants for breach of contract or negligence in the construction of a dwelling house. The applicants sought to attribute liability to the Albert Shire Council or its officers. That Council had, however, been abolished. [4] The applicants being uncertain as to which of the Gold Coast City or Beaudesert Shire Councils had acquired the Albert Shire Council's liability, joined each as a third party. Each of the third parties then contended that the other had acquired the liability. [5] For reasons which I published on 5 June, I decided that the Gold Coast City Council had succeeded to the Albert Shire Council's liability in respect of the plaintiffs claim with the consequence that the respondent Beaudesert Shire Council (the second third party) should be dismissed from the action. [6] I made provision for written submissions as to costs. These have now been received. The submissions do not cite any specific provisions of the rules or any cases. [7] The applicants submit that their costs of determination of the separate question should be paid by the Gold Coast City Council as should the Beaudesert Shire Council's costs of the action and the application. [8] The Beaudesert Shire Council submits the applicants should pay its costs of the action, including the application for separate determination on the basis that they have been unsuccessful in their claims against it. It makes no submission as to any order for costs as between the applicants and the respondent Gold Coast City Council. [9] The Gold Coast City Council submits that the appropriate costs orders are that the applicants pay the Beaudesert Shire Council's costs of the action and the application; and, that as between the applicants and the Gold Coast City Council, the costs of the application for separate determination should be costs in the cause. In support of this, it is submitted that it would be unjust to require the Gold Coast City Council to pay the applicant's costs since it might fail in their claim against it. [10] The determination of the separate question should in my view be treated as a distinct event for the purpose of dealing with costs. The Gold Coast City Council should therefore pay the applicants and the Beaudesert Shire Council's costs of the application. [11] As a result of the successful application the Beaudesert Shire Council is dismissed from the action and should have its costs. In my view its costs of the action should be paid should be paid by the Gold Coast City Council because the latter Council unsuccessfully contented that the Beaudesert Shire Council rather than it were liable if the applicants were successful in making out a case against the former Albert Shire Council. The issue of costs as between the third party Gold Coast City Council and the defendant respondents as a consequence of the outcome of the trial is in my view a separate consideration. [12] I therefore order:— 1. The first third party has succeeded to the liabilities of the Albert Shire Council. 2. The third party action against the second third party is dismissed. 3. The first third party to pay: (a) the applicant defendants' and the second third party's costs of application to be assessed on the standard basis; and, (b) the second third party's costs of and incidental to its joinder as a third party to be assessed on the standard basis. SUPREME COURT OF QUEENSLAND File No 1621 of 1993 BETWEEN: THOMAS TAN Applicant - First Defendant AND: BONNYSIDE PTY LTD ACN 010 729 Applicant - Second 085 Defendant AND: COUNCIL OF THE CITY OF GOLD Respondent - First Third COAST Party AND: COUNCIL OF THE SHIRE OF Respondent - Second Third BEAUDESERT Party MOYNIHAN J - REASONS FOR JUDGMENT DELIVERED ON: 5 June 2000 HEARING DATE: 16 December 1999 ORDER: The Council of the City of the Gold Coast has succeeded to the liabilities of the Council of Albert in respect of the plaintiffs claim CATCHWORDS: LOCAL GOVERNMENT - Ordinances, regulations and by-laws - application of Local Government (Albert, Beaudesert and Gold Coast) Regulation 1994 - whether Council of the City of Gold Coast or Council of the Shire of Beaudesert succeed to the liabilities of former Albert Shire Council COUNSEL Wilson for the applicants Mr G Gibson QC with Mr W Everson for the respondent (first third party) Mr RN Traves for the respondent (second third party) Gadens Lawyers for the applicants SOLICITORS Witheriff Nyst for the respondent (first third party) Messrs Barry & Nilsson Lawyers for the respondent (second third party) [1] The question for determination on this application is which of the Council of the City of Gold Coast (the First Third Party) and the Council of the Shire of Beaudesert (the Second Third Party) has succeeded to the liabilities of the Council of the Shire of Albert in the following circumstances. [2] The plaintiff sued the first and second defendants for breach of contract or negligence as a consequence of the structural inadequacy of a house built for the plaintiff. At the time of its construction, the land on which the house was constructed was in the Albert Shire. That Council issued the relevant building approval and its officers inspected the construction work on a number of occasions. In the event that they are found liable to the plaintiff, the first and second defendants seek to recover contribution on the basis that the Albert Shire Council (by its officers) negligently approved the building work and carried out the inspections. [3] The Albert Shire has however been abolished in circumstances to be canvassed shortly. The Local Government (Albert, Beaudesert and Gold Coast) Regulation 1994 became law from 22 March 1995; the “changeover day”. The Regulation abolished the areas of the City of Gold Coast and of the Shire of Albert and created a new local government area known as The City of the Gold Coast consisting of the abolished City of Gold Coast and Shire of Albert. It also changed the external boundary of the new City of Gold Coast by excluding a designated “area A” and including it in the Shire of Beaudesert. The plaintiffs land is in area A. In those circumstances the defendants instituted third party proceedings against the third party Councils on about 8 December 1998. [4] There is no provision of the Regulation which specifically provides as to which of the Gold Coast or Beaudesert Councils become responsible for the liability of the former Albert Shire Council which is in issue here. The Regulation however dealt with liabilities. I should mention that it was common ground that “liabilities” as referred to in the regulations should be interpreted to include the claims made by the defendants against the third parties. By regulation 27, the Gold Coast City Council and the Beaudesert Shire Council were to jointly consider the liabilities of each that were to become the liabilities of the other. If they reached agreement a schedule identifying the assets and liabilities was to be prepared for gazettal. If they did not reach agreement within six months after 22 March 1995 the Minister could identify the relevant liabilities and prepare a gazette notice. In either case, upon gazettal the liability of the affected local government stated in the gazette notice become a liability of the new local government. It was, however, common ground that these provisions have not been availed of. [5] Moreover regulations 69 and 70 provide: “69. A legal proceeding by or against a merging local government that is not finished before the changeover day may be continued and finished by or against the new local government.” “70.(1) This section applies to a legal proceeding by or against a local government that - (a) relates to area A or B; and (b) is not finished before the changeover day; and (c) is identified by the Minister by Gazette notice. (2) The legal proceeding may be continued and finished by or against the local government controlling the area after the changeover day.” It is common ground these provisions do not apply since the third party proceedings were not commenced until after the changeover day and there has been no gazettal in terms of regulation 70(1)(c).
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