Landowners win ‘David v Goliath’ battle as High Court orders council repay millions

A bayside council has lost a multimillion-dollar High Court challenge and will be forced to repay millions of dollars in rates charges and will face a multimillion-dollar legal bill. | FULL TIMELINE

Redland City Council has lost a landmark High Court appeal and has been ordered to repay millions of dollars to waterfront property owners including Simone and Sarah Akero. Pictures: Contributed

A bayside council has lost a multimillion-dollar High Court challenge and will be forced to repay millions in rates charges to landowners of canal estates and lakeside properties.

The High Court dismissed Redland City Council’s appeal after a 2022 judgment of the Queensland Court of Appeal.

The council, headed by top barrister Jonathan Horton KC, was appealing against an Appeal Court finding in 2022, which ordered the council to repay the money.

Court documents showed $7,782,556.82 was levied on waterfront property owners between July 2011 and July 2017 and $3,791,536.80 remained owed.

Top barrister Jonathan Horton KC represented Redland City Council which had tried to keep millions of dollars in levies after the levy was found to be invalid.

Three of five High Court judges this week dismissed the council’s appeal and found that the ratepayers were “entitled to restitution of the money paid by mistake which the council was not entitled to receive or to retain”.

In its decision, which will be heralded as a landmark case, the court found that accepting the council’s argument would go against the purpose of the law.

The majority of High Court judges rejected the argument that the council had provided benefit to the waterfront ratepayers in exchange for the charges they paid and said the works were done because the law required it, not because ratepayers paid for it.

It also found that the ratepayers had not asked for, or agreed to, the works and may not have gained financially from them.

The High Court also ordered costs against the council for the appeal which will mean the council will now have to foot the costs for all the Supreme Court hearings as well.

It is expected that the council will face a significant legal bill totalling more than $2 million.

Shine lawyers took up the case for the waterfront residents John Kozik, Simon Akero, his wife Sarah and Neil Collier in 2020, after 648 residents pulled out of a class action against the council.

Redland City Council had taxed canal and waterfront landowners until the levy was found to be invalid. Picture: Judith Kerr

It is likely that the total amount the council has to repay has decreased after a number of ratepayers dropped their cases.

Speaking after the decision was handed down on Wednesday, a jubilant Mr Akero said it was a weight lifted after a four-year “David and Goliath” battle.

“This dragged on for years and the council had a bottomless pit of money to spend on the case which resulted in wasting more ratepayer money,” he said.

“There were five High Court judges involved in the last case, three Supreme Court judges in the appeal and one Supreme Court judge in the initial case and out of those nine, seven ruled in our favour.

“The ratepayers of Redland can expect the council and its legal team to pass on all of those costs.

“This final win will mean my wife and I and my family can now draw a line under this case and get back to living our lives.”

A delighted waterfront landowner Simon Akero. Picture: Contributed

Shine lawyer Atanaan Ilango said the result would force local councils to follow “to the letter of the law” all regulations when raising levies.

“The real issue with this case was determining whether the council could retain the levy when it had already been found invalid,” he said.

“It was the first time the High Court has had to consider this type of defence.

“This now provides certainty that councils and other statutory bodies will not be able to rely on the defence of good consideration where they have raised an invalid levy and tried to keep it.”

Redland City Council acknowledged the decision.

“While disappointed, the council respects the court’s decision to dismiss council’s appeal,” the council said in a statement.

“Council notes the ruling was a split decision, three to two, by the High Court Justices, which indicates there was merit to council’s argument that also had the support of the Queensland Attorney-General.

“During the High Court deliberations, Chief Justice Stephen Gageler and Justice Jayne Jagot concluded that the appeal should be allowed and that the council acted at all times in good faith, honestly believing that it had complied with the processes required to levy the special charges.”

“It is the council’s belief that it has an obligation to properly test legal matters, such as this case, through the courts when they have significant impacts for city ratepayers.”

Redland council lawyers will now await further details on the High Court’s directives to the Queensland Supreme Court regarding its decision.

While it is before the court, the council said it would not comment further.

Originally published as Landowners win ‘David v Goliath’ battle as High Court orders council repay millions