Ecobikes Australasia Ltd v ABC Pty Ltd

[2015] QCAT 341

CITATION:	Ecobikes Australasia Ltd v ABC Pty Ltd [2015] QCAT 341
PARTIES:	Ecobikes Australasia Limited (Applicant)
v
ABC Pty Ltd (Respondent)

APPLICATION NUMBER: RSL117-14

MATTER TYPE: Retail shop leases matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Brown

DELIVERED ON: 21 August 2015

DELIVERED AT: Brisbane

ORDERS MADE:

1.    ABC Pty Ltd is to file in the Tribunal one (1) copy and give to Ecobikes Australasia Limited one (1) copy of further submissions in relation to any claim for costs including:

a.    Confirmation from ABC Pty Ltd’s solicitors as to the amount of costs and outlays in invoices numbered B9304, B9727 and B9879 which relate to the Notice of Dispute and subsequent proceedings;

b.    Any evidence of payment by ABC Pty Ltd of the invoices rendered by ABC Pty Ltd’s solicitors as referred to in these directions;

c.    Further submissions by ABC Pty Ltd in relation to costs are to be provided to the Tribunal within 14 days;

d.    In the absence of further submissions by ABC Pty Ltd in relation to costs the application for costs is dismissed.

CATCHWORDS:

COSTS – consideration of circumstances in which order for costs will be made – whether appropriate in the interests of justice to make costs order – assessing reasonableness of costs

Legal Profession Act 2007 (Qld), s 330
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 107

Ecobikes Australasia Limited v ABC Pty Ltd [2014] QCAT 679
McEwen v Barker Builders Pty Ltd [2010] QCATA 49
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

WHAT IS THIS APPLICATION ABOUT?

1. Ecobikes Australasia Limited (‘Ecobikes’) leased premises in Surfers Paradise from ABC Pty Ltd (‘ABC’). A dispute arose in relation to the renewal of the lease as a result of which a Notice of Dispute was filed by Ecobikes in the Tribunal. On 9 June 2015, the Notice of Dispute was struck out as a result of the failure by Ecobikes to comply with directions made by the Tribunal. ABC seeks its costs of the proceedings. The issue for determination by the Tribunal is whether ABC should be entitled to recover its costs from Ecobikes.  

BACKGROUND

1. The initial term of the lease between ABC and Ecobikes expired on 25 August 2014. It was accepted by both Ecobikes and ABC that the option to renew was not exercised within the period required by the lease.

2. Ecobikes subsequently sought to exercise the option to renew. ABC refused and sought delivery up of possession of the leased premises.

3. Ecobikes filed in the Tribunal a Notice of Dispute and an application seeking directions that the matter be determined by the Tribunal on an urgent basis. Ecobikes also sought a declaration, although it was not expressed in these terms, that the operation of the notice to deliver up possession be stayed pending the determination of the notice of dispute.

4. On 22 December 2014 the Tribunal, in considering the application for interim orders, found that Ecobikes had not presented an arguable case that the option to renew had been validly exercised. Directions were subsequently made requiring the parties to file material in the proceedings.

5. Ecobikes failed to comply with those directions. Further directions were made requiring Ecobikes to explain its failure to comply with the previous directions. Again, Ecobikes failed to comply.

6. On 9 June 2015, as a result of the persistent failure by Ecobikes to comply with the Tribunal’s directions or otherwise advance its claim, the Notice of Dispute was dismissed.

7. ABC now seeks an order for the payment of the costs it has incurred in responding to the Notice of Dispute and applications by Ecobikes.

ABC’s SUBMISSIONS

1. ABC’s submissions do not specifically address the issues relevant to the exercise of the discretion to award costs and are therefore of limited assistance.

2. ABC’s submissions consist of a letter to the Tribunal attaching copies of four tax invoices which ABC says were rendered by its solicitors ‘in relation to the case’. The invoices are not itemised and are lump sum bills.[1]

   [1]Legal Profession Act 2007 (Qld) s 330(1).

DISCUSSION

1. The starting point in any consideration of the awarding of costs by the Tribunal is that each party usually bears their own costs.[2] Costs may be awarded against a party if the Tribunal considers the interests of justice require such an order to be made.[3]

   [2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 100.

   [3]QCAT Act s 102(1).

2. The Tribunal may consider a number of matters in deciding whether to award costs including whether a party to a proceeding has acting in a way that necessarily disadvantages the other party; the nature and complexity of the dispute; the relative strengths of the claims made by the parties; the financial circumstances of the parties; anything else the Tribunal considers relevant.[4]

   [4]QCAT Act s 102(3).

3. The Tribunal must consider whether:

   … the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.[5]

   [5]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [29].

4. In essence, ABC argued that the claim by Ecobikes was fundamentally misconceived and without merit.[6]

   [6]ABC Response filed 20 April 2015.

5. Certainly, the failure by Ecobikes to comply with any of the Tribunal’s directions subsequent to the refusal of its application for urgent orders, and its failure to prosecute in any way the Notice of Dispute strongly indicate that Ecobikes was aware that it had not presented ‘an arguable case’.[7]

   [7]Ecobikes Australasia Limited v ABC Pty Ltd [2014] QCAT 679.

6. The issues for determination are firstly whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ have arisen and secondly whether or not they point to a costs award in a sufficiently compelling way to overcome the statutory hurdle.[8]

   [8]McEwen v Barker Builders Pty Ltd [2010] QCATA 49.

7. In my view they do.

8. Ecobikes did not present an arguable case and subsequently failed to take any steps to diligently prosecute its claim resulting in the Notice of Dispute being dismissed by the Tribunal. ABC has been put to the expense of responding to a claim which had, on the evidence provided, little if any merit. ABC should be entitled to recover its reasonable costs of responding to the claim by Ecobikes.

THE AMOUNT OF ABC’s COSTS

1. Costs awarded under the Act must be fixed if possible.[9]

   [9]QCAT Act s 107(1).

2. Given the brevity of ABC’s submissions it is difficult to assess the claim for costs. It would not be appropriate to fix the costs in the amount claimed by ABC for a number of reasons.

3. The Notice of Dispute was filed on 11 December 2014. The first of the tax invoices rendered by ABC’s solicitors is dated 20 November 2014 and therefore pre-dates the filing of the Notice. None of the tax invoices contain any degree of specificity as to the amounts charged and the only manner in which it can be identified that the invoices relate to the present dispute is in the reference line on the invoices.

4. It is therefore appropriate that the following directions are made:

   a)    ABC is to file in the Tribunal one (1) copy and give to Ecobikes one (1) copy of further submissions in relation to any claim for costs including:

   i)Confirmation from ABC’s solicitors as to the amount of costs and outlays in invoices numbered B9304, B9727 and B9879 which relate to the Notice of Dispute and subsequent proceedings;

   ii)Any evidence of payment by ABC of the invoices rendered by ABC’s solicitors as referred to in these directions;

   iii)Further submissions by ABC in relation to costs are to be provided to the Tribunal within fourteen days;

   iv)In the absence of further submissions by ABC in relation to costs the application for costs is dismissed.