Body Corp for Q1 v BERNAL

Link copied
Case Copied 6 min read

FEDERAL CIRCUIT COURT OF AUSTRALIA

BODY CORP FOR Q1 v BERNAL [2018] FCCA 2897

Catchwords:
BANKRUPTCY – Creditor’s Petition – costs.

HOME AND COMMERCIAL UNITS – Body Corporate Fees – proceedings to recover unpaid contributions – recovery costs – test for assessment of.

COSTS – Assessment – recovery for costs in respect of proceedings to recover unpaid body corporate contributions – test on assessment.

Legislation:

Bankruptcy Act 1966
Body Corporate and Community Management (Standard Module) Regulations 2008, reg.145

Federal Circuit Court (Bankruptcy) Rules 2006

Cases cited:

Body Corporate for Sunseeker Apartments CTS 618 v Jasen [2012] QDC 51

O’Mara Constructions Proprietary Limited v Avery (2006) 230 ALR 581

Owners of Strata Plan No 36131 v Dimitriou (2009) 24 NSWLR 370

Applicant: BODY CORPORATE FOR Q1 CTS 34498
Respondent: JEMI-PRINCE LOPEZ BERNAL
File Number: BRG 317 of 2018
Judgment of: Judge Jarrett
Hearing date: 26 July 2018
Date of Last Submission: 26 July 2018
Delivered at: Brisbane
Delivered on: 26 July 2018

REPRESENTATION

Counsel for the Applicant: Mr N.J. Derrington
Solicitors for the Applicant: Holman Webb Lawyers
Solicitors for the Respondent: Nelson McKinnon Lawyers

ORDERS

  1. The application be dismissed.

  2. The respondent pay the applicant’s costs of and incidental to the proceeding, to be agreed, or taxed on the footing that the applicant is entitled to all costs of and incidental to the proceeding that have been reasonably incurred, of a reasonable amount.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 317 of 2018

BODY CORPORATE FOR Q1 CTS 34498

Applicant

And

JEMI-PRINCE LOPEZ BERNAL

Respondent

REASONS FOR JUDGMENT

  1. The outcome in these proceedings that is in dispute is the form of the costs order that ought to be made.  The proceedings take the form of a creditor’s petition.  The parties are agreed that it ought to be dismissed.  The petitioning creditor seeks an order that the respondent pay the applicant’s costs of and incidental to the proceeding to be agreed or taxed on the footing that the applicant is entitled to all costs of and incidental to the proceeding that have been reasonably incurred of a reasonable amount.  The respondent says that the order ought to be that the respondent pay the applicant’s costs of and incidental to the proceeding, I expect perhaps, to be taxed and paid in accordance with the Federal Circuit Court (Bankruptcy) Rules 2006. At its heart the dispute is about, it seems, whether the costs ought to be taxed on what I might call a solicitor and client basis or a party and party basis.

  2. The petitioning creditor has a special place in the scheme of land ownership in this state.  It is a body corporate and was in these proceedings seeking to pursue the enforcement of a debt to which it was entitled by reg.145 of the Body Corporate and Community Management (Standard Module) Regulations 2008.  By reg.145(1):

    (1)     If a contribution or contribution instalment is not paid by the date for payment, the body corporate may recover each of the following amounts as a…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Body Corp for Q1 v BERNAL and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2018] FCCA 2897
Decision Date

CaseChat Overview and Summary

In the matter of *Body Corp for Q1 v BERNAL*, heard before Judge Jarrett in the Supreme Court of Queensland, the dispute concerned the recovery of costs associated with proceedings to recover unpaid body corporate contributions. The body corporate sought to recover these costs from the respondent, BERNAL.

The central legal issue before the Court was the appropriate test for assessing the recovery of costs incurred by a body corporate in proceedings to recover unpaid body corporate contributions. This involved determining the scope and nature of costs that could be legitimately claimed in such circumstances.

Judge Jarrett applied the principles governing the recovery of costs in litigation, particularly in the context of statutory schemes for body corporate management. The Court considered the reasonableness and necessity of the costs incurred by the body corporate in pursuing the recovery action. The assessment focused on whether the costs were directly attributable to the recovery of the unpaid contributions and whether they were incurred in a manner that a prudent litigant would adopt. The Court affirmed that while bodies corporate are entitled to recover their costs, these costs must be assessed on a case-by-case basis, demonstrating their direct link to the recovery efforts and their overall reasonableness.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.