Choi v Mee Wah To (No 3)
[2014] QCAT 30
•20 January 2014
| CITATION: | Choi v Mee Wah To (No 3) [2014] QCAT 030 |
| PARTIES: | Eugene Choi (Applicant) |
| v | |
| Mee Wah To (Respondent) |
| APPLICATION NUMBER: | RSL047-10 |
| MATTER TYPE: | Retail shop leases matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Forbes, Member |
| DELIVERED ON: | 20 January 2014 |
| DELIVERED AT: | Brisbane |
ORDER MADE: | 1. Mee Wah To shall pay to Eugene Choi as her costs of and incidental to these proceedings the sum of $21,046.86 on or before 28 February 2014. |
| CATCHWORDS: | Retail Shop Lease dispute – interpretation of lease – compensation for disturbance of quiet enjoyment – application successful – appeal rejected – whether matter complex – relative strength of claim and defence – other relevant considerations – costs allowed in part Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 100, s 102 Chelbrooke Homes Pty Ltd v Russell and Anor (No 2) [2011] QCAT 279 Choi v To [2011] QCAT 495 Fenwick v Queensland Building Services Authority (No 2) [2011] QCAT 262 Queensland Building Services Authority v Reid [2012] QCAT 199 Samimi v Queensland Building Services Authority [2012] QCAT 133 To v Choi [2013] QCATA 27 Veterinary Surgeons Board of Queensland v McIntosh [2011] QCAT 417 |
APPEARANCES and REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The applicant Eugene Choi seeks an order for costs of her action (RSL047-10) against the respondent Mee Wah To.
History of these proceedings
On 13 October 2011 the Tribunal made the following orders:[1]
It is declared that by the lease instrument dated 28 September 2009 the Respondent leased to Ms Choi the premises therein described as having an area of 148 square metres, being the area delineated in the survey plan annexed to the lease.
It is further declared that Ms Choi is not liable to pay to Ms To the sums of $544.50 and $495 for legal fees claimed in tax invoice No 2709 from DB Realty to Eugene Choi dated 16 April 2010.
It is further declared that the Notice to Remedy Breach of Covenant dated 17 May 2010 issued by the Respondent to Ms Choi is invalid and does not entitle the Respondent to forfeit the lease.
The Respondent shall forthwith do all such things as are necessary to deliver up to the Applicant possession of all the 148 square metres demised by the lease dated 28 September 2009, more particularly described as Lot 5 on SP116032 County Stanley Parish Enoggera Title Reference 50335423 that part of the ground floor of the Building erected on the Land as more particularly shown on the plan annexed and hatched in black (“the demised area”).
The Respondent, her servants and agents are ordered not to interfere with the Applicant’s exclusive possession and quiet enjoyment of the whole of the demised area.
Within 28 days of the date of this order, the Respondent shall pay to the Applicant the sum of $10,000 by way of compensation for her failure to allow quiet possession of the whole of the demised area.
Within 28 days of the date of this order the Respondent shall repay to the Applicant the sum of $495 together with interest at the rate of 10% per annum from the date of the Respondent’s receipt of the said sum to the date of repayment thereof.
[1] Choi v To [2011] QCAT 495.
At the conclusion of the substantive hearing, counsel for the applicant made an oral application for costs. No objection was taken to that procedure. On 10 January 2012 the Tribunal held that the issue of costs was res integra,[2] and adjourned it pending the result of an appeal.
[2] Choi v To [2012] QCAT 36.
Subsequently the respondent appealed against only one of the substantive orders made, namely, that “within 28 days of the date of this order, the Respondent shall pay to the Applicant the sum of $10,000 by way of compensation for her failure to allow quiet possession of the whole of the demised area.”
On 11 February 2013 the appeal was dismissed.[3]
[3]To v Choi [2013] QCATA 27 (an unsuccessful challenge by the respondent to the Tribunal’s jurisdiction herein).
On 6 May 2013 the Tribunal issued these directions:
Eugene Choi shall file in the Tribunal and serve on Mee Wah To an affidavit containing full particulars of her application for costs herein, omitting therefrom all costs of an incidental to the proceedings in the Supreme Court of Queensland, entitled To v Choi [2011] QSC 2 by 4:00 pm on Wednesday 15 May 2013.
The said affidavit shall be filed and served on Wednesday 15 May 2013.
Eugene Choi shall file in the Tribunal and serve on Mee Wah To submissions in support of her application for costs herein by 4:00 pm on Wednesday 22 May 2013.
Mee Wah To shall file in the Tribunal and serve on Eugene Choi submissions in response to the affidavit and submissions of the Applicant by 4:00 pm on Wednesday 5 June 2013.
The application for costs will be decided on the papers, not before 6 June 2013.
On 3 May 2013, in compliance with those directions, the following material was filed and served on behalf of the applicant Choi:
Particulars of costs;
Affidavit of James Stuart Wright sworn on 2 May 2013;
Submissions in support of an order for costs.
Regrettably, for some unknown reason, that material was not placed before me until 18 December 2013.
The respondent Mee Wah To has not filed any response to the material filed by Choi on 3 May 2013.
Consideration of the application for costs
The applicant is substantially successful in this case, but that, in itself, is not a sufficient reason for an award of costs; in this Tribunal costs do not normally follow the event.[4] It must appear that in the circumstances of the particular case it is in the interests of justice that such an order be made.[5] That discretion is to be guided by the considerations set out in subsection 102(3). In this case the most relevant considerations, in my view, are (i) the nature and complexity of the dispute,[6] and (ii) the relative strengths of the parties’ claims.[7] The applicant places little reliance[8] on subsections 102(3)(a),[9] 102(3)(e)[10] or 102(3)(f).[11]
[4]Veterinary Surgeons Board of Queensland v McIntosh [2011] QCAT 417 at [8]; Queensland Building Services Authority v Reid [2012] QCAT 199 at [42].
[5] QCAT Act s 102(1).
[6] Section 102(3)(b).
[7] Section 102(3)(c).
[8] Submissions 2 May 2013 paragraphs 5 and 14.
[9] Causing unnecessary disadvantage to another party.
[10] Financial inequality.
[11] Anything else relevant.
Nature and Complexity of this dispute
Far from a simple claim for debt, this dispute was highly complex. Before it could proceed, the respondent instituted a jurisdictional challenge in the Supreme Court. When that manoeuvre failed, there followed a two-day trial that canvassed, inter alia, difficult questions of the interpretation of a lease, and compensation for breach of a covenant for quiet enjoyment. I am satisfied that this dispute, as conducted by the respondent, was decidedly complex.
Relative strength of claims
The respondent’s defence, in essence, relied upon a contention that the area leased to the applicant was, in the words of the trial tribunal, “an island, cut off from common areas of the shopping centre”.[12] That proposition could only be maintained by disputing the plain meaning of the lease and its associated plan.[13] The Tribunal was unimpressed by a claim that hasty production of the documents resulted in a misleading plan.[14] It is apparent that the Tribunal reasonably regarded the respondent’s unilateral attempt to rewrite the lease as utterly devoid of merit. Significantly, the respondent’s unsuccessful appeal did not challenge the Tribunal’s decision on that point. It questioned only the award of compensation, which, on appeal, was held to be lawful and lenient towards an obstructive landlord.[15]
[12] Choi v To [2011] QCAT 495 at [9].
[13] Ibid at [67].
[14] Ibid at [80].
[15] To v Choi [2013] QCATA 27 at [27].
I accept the submission that the respondent’s claims were exceedingly weak, and the applicant’s correspondingly strong.[16]
[16] Applicant’s submissions 3 May 2013 paragraph 10.
Other relevant considerations
It may be in the interests of justice to order costs where a refusal to do so would effectively deprive a party of modest means of the fruits of a judgment, particularly when the matter requires legal representation.[17] I consider that this is such a case.
[17] Samimi v QBSA [2012] QCAT 133 at [13]; Tamawood Limited v Paans [2005] 2 Qd R 101;
[2005] QCA 111 at [33]; Chelbrooke Homes Pty Ltd v Russell & Anor [2011] QCAT 279 at [22]; Stuart Homes and Renovations v Denton and Anor [2012] QCAT 43 at [8]; Fenwick v QBSA [2011] QCAT 262 at [30]; Lowik v Carl Linklater Pty Ltd [2010] QCAT 287; Gargett v Capable Consulting (Aust) Pty Ltd & Anor [2012] QCAT 91 at [18].
I conclude that this is a proper case for an order for costs against the respondent, limited to the proceedings before the primary tribunal.
Quantum of costs order
The applicant seeks costs on the District Court standard scale, as it stood at the date of judgment, namely 13 October 2011. No order for costs was made in connection with the internal appeal, and of course the Tribunal has no power to order costs of the Supreme Court proceedings.
In support of her claim the applicant has filed a detailed bill of costs, in taxation form, of some 40 pages. It was prepared by a firm of costs assessors, and claims a total of $28,027.86.
I have carefully perused the bill, eschewing any “nit picking” of items under $250. For attendances at directions hearings on 2 November 2010 and 22 February 2011, for which a total of $918 is claimed, I allow $500. For drafting the statement of Moon I allow $300. For “instructions generally etc” (24 November 2011) and conferring with counsel (13 September 2011), I allow $2500 of a total claim of $3,913. Fees to counsel are allowed at $6000. Otherwise the items claimed are allowed.
It follows that the claim for $28,027.86 is reduced to $21,046.86. There will be an order for costs in that amount.
ORDER
Mee Wah To shall pay to Eugene Choi as her costs of and incidental to these proceedings the sum of $21,046.86 on or before 28 February 2014.
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