Choi v To

[2012] QCAT 36

CITATION: Choi v To [2012] QCAT 36

PARTIES:	Eugene Choi
v
Mrs Mee Wah To

APPLICATION NUMBER:   RSL047-10

MATTER TYPE: Retail shop leases matters

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Dr J R Forbes, Presiding Member
Ms Sandra Kairl, Member
Mr Donald McBryde, Member

DELIVERED ON: 10 January 2012

DELIVERED AT:      Brisbane

ORDER MADE: The application is adjourned, pending the determination of the Landlord’s appeal against the order, made on 23 October 2011, that she pay compensation of $10,000 to the Tenant.

CATCHWORDS:

Decision silent on costs – issue res integra – jurisdiction to decide that issue – original jurisdiction

Queensland Civil and Administrative Tribunal Act 2009, ss 102, 135

APPEARANCES and REPRESENTATION (if any):

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

1. This is an application for costs, incidental to the substantive decision in this matter, delivered on 13 October 2011.[1]  The present Applicant is the Respondent in the principal proceedings; it may serve to avoid confusion if the present Applicant is referred to as “the Tenant”, and the present Respondent is described as “the Landlord”.

   [1] [2011] QCAT 495.

1. The Tenant’s Notice of Dispute (originating process) filed on 25 May 2010, does not include an application for costs, but her counsel made an oral request for costs at the conclusion of the hearing.  No objection was raised to that procedure; indeed, the Landlord’s submissions recognise that such an application was made, and the present application in writing was filed on 4 November 2011.

2. The Tribunal’s decision of 23 October 2011 contains several substantive orders, but is silent on the question of costs.  The Tenant now asks the Tribunal, in its original jurisdiction, to determine that issue.

3. The Landlord, for her part, submits, first, that the Tribunal, in its original jurisdiction, now lacks power to make the order sought, and second, that in any event, no costs order should be made.[2]

   [2]        Submissions dated 29 November 2011.

4. An appeal is pending against one of the orders made on 23 October 2011, namely an order that “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.”

5. In this situation, and aside from the question of jurisdiction, it would be premature to inquire whether an order should be made, and if so, in what amount.  The Landlord already submits that the Tenant was not wholly successful, in that she failed to secure an order for mesne profits or rent, a failure that should obviate, or at least mitigate, any costs awarded.  No doubt that argument would be even more forcefully pressed if the pending appeal against the compensation order were upheld.

6. In this decision, therefore, we shall confine ourselves to the jurisdictional question, expressing no view upon the merits of the application for costs.

7. An available inference is that the Tribunal said nothing about costs because it awaited the more detailed, written submissions that were subsequently made.  In particular, the Tribunal, at the trial, had no documentary material on items and quantum of costs claimed; indeed, the information on those points is still brief and assertive.[3]  It remains uncertain, for example, whether the Tenant’s claim for costs in the amount of $31,616.12 includes or overlaps items relating to proceedings in the Supreme Court.[4]

   [3]        Affidavit of James Stuart Wright, sworn 31 October 2011.

   [4]        To v Choi [2011] QSC 2.

8. However, if it be assumed that the Tribunal inadvertently or erroneously omitted to deal with the question of costs in October 2011, there is statutory as well as judicial authority that the tribunal that made the omission may later fill the gap, without subjecting the parties to the process of an appeal.[5]

   [5]Queensland Civil and Administrative Tribunal Act 2009, s 135(1)(b); Alderson v Schmidt [2002] QCA 331; New South Wales Bar Association v Clarence James Stevens [2005] NSWCA 351.

9. We reject the Landlord’s submission to the effect that silence is equivalent to an explicit pronouncement: “No order as to costs”, or “Each party to pay own costs”.  We hold that the present question of costs remains res integra, that is, an issue not yet decided, an issue on which the Tribunal has expressed no opinion, and which it may decide on a future occasion.

10. We propose to adjourn this application until the result of the pending appeal is known.

ORDER

1. The application is adjourned, pending the determination of the Landlord’s appeal against the order, made on 23 October 2011, that she pay compensation of $10,000 to the Tenant.