Joanne Baxter and Fifties Food Pty Ltd atf The Ninja Bear Trust t/as Subway Wynnum Central v Subway Realty Pty Ltd & Anor
[2013] QCAT 316
| CITATION: | Joanne Baxter and Fifties Food Pty Ltd atf The Ninja Bear Trust t/as Subway Wynnum Central v Subway Realty Pty Ltd & Anor [2013] QCAT 316 |
| PARTIES: | Joanne Baxter and Fifties Food Pty Ltd atf The Ninja Bear Trust t/as Subway Wynnum Central (Applicants) |
| V | |
| Subway Realty Pty Ltd (First Respondent) Kennion (Trustees) Pty Ltd (Second Respondent) |
| APPLICATION NUMBER: | RSL053-12 |
| MATTER TYPE: | Retail shop leases matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Sandra G Deane, Presiding Member Neil Judge, Member Don Mc Bryde, Member |
| DELIVERED ON: | 26 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Subway Realty Pty Ltd’s application for costs is dismissed. 2. Kennion (Trustees) Pty Ltd’s application for costs is dismissed |
| CATCHWORDS: | RETAIL SHOP LEASE DISPUTE – applications for costs – factors do not point compelling that it is in the interest of justice to award costs Queensland Civil and Administrative Tribunal Act 2009 – ss 48, 100, 102, 107. Civic Steel Homes –v- Mitra [2006] QDC 322 |
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
Ms Baxter subleases premises at Wynnum from Subway Realty Pty Ltd. In turn Subway leases the premises from Kennion (Trustees) Pty Ltd, which owns the shopping centre. Fifties Food Pty Ltd operates a Subway business from the premises. Ms Baxter is the sole director of Fifties Food.
Ms Baxter and Fifties Food applied to the Tribunal for various final orders under the Retail Shop Leases Act 1994 (the Act) and applied for an interim order to prevent Subway and Kennion from issuing breach notices until the dispute could be decided. An interim order was made and was effective to 18 February 2013.
The interim order related to a trade waste approval which had been issued to Kennion as owner. That issue was set down for urgent hearing on 18 February 2013 with the other issues to be heard at a later time. On that hearing Ms Baxter and Fifties Food were unsuccessful in seeking directions and a consequential adjournment and were unsuccessful in their applications relating to the trade waste issue. Subway and Kennion have sought orders for costs. Ms Baxter and Fifties Food contend that each party ought to bear their own costs.
Subway sought an order that Ms Baxter and Fifties Food pay its costs of and incidental to the preliminary hearing on 18 February 2013 on a standard basis to be assessed. Kennion sought an order Ms Baxter and Fifties Food pay its costs of and incidental to the preliminary hearing and determination on 18 February 2013 in an amount fixed[1] at $18,555.11 or to be assessed on the standard basis, if not agreed.
[1] Queensland Civil and Administrative Tribunal Act 2009 s 107.
The QCAT Act provides ‘Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceedings.’[2]
[2] Ibid s 100.
The Act is the relevant enabling Act. Part 8 Division 4[3] sets out the powers of the Tribunal to make orders to resolve retail tenancy disputes. Part 9 Division 2[4] sets out further matters in relation to the Tribunal’s powers. There is no express provision granting the power to award costs. Therefore the relevant provisions governing this application are those contained in the QCAT Act.
[3] Retail Shop Leases Act 1994 s 83.
[4] Ibid ss 102 – 103.
Section 102(1) states ‘The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.’
It is necessary to consider the matters referred to in section 102(3) of the QCAT Act, to the extent they are relevant to a particular case, to determine if the interests of justice point so compellingly to a costs award to overcome the starting position that each party bear their own costs.
Whether a party is acting in a way that unnecessarily disadvantages another party[5]
[5] Queensland Civil and Administrative Tribunal Act 2009 ss 48(1)(a)-(g), 102(3)(a).
Subway contends that Ms Baxter’s conduct caused unnecessary disadvantage throughout the proceeding relating to the preliminary issue. Subway relies upon the making of the applications at the commencement of the hearing, seeking an urgent hearing then requesting an adjournment at the hearing, making objections and raising issues without putting the other parties on prior notice and referring to evidence that had not been previously provided. It also seeks to rely upon the need to prepare for the preliminary hearing within a short period.
Kennion also contends that Ms Baxter and Fifities Food’s conduct caused unnecessary disadvantage. It relies upon the seeking of interim orders, seeking an urgent hearing then requesting an adjournment at the hearing and seeking directions at the commencement of the hearing. Kennion contends that it was disadvantaged because the conditions of the trade waste approval have not been met and it may be subject of action by Queensland Urban Utilities, the urgency required it to respond to Ms Baxter’s and Fifties Food’s case within a short period, it was required to meet a changing case and despite filing extensive evidence Ms Baxter did not seek to cross examine the respondents’ witnesses or make many references to the evidence.
The Tribunal is not satisfied that such matters constitute acting in a way that unnecessarily disadvantaged another party.
A matter which must be established is whether any disadvantage was ‘unnecessary’ as distinct from a disadvantage experienced in the usual course of a dispute proceeding. The matters complained of by Subway and Kennion are in the nature of a disadvantage experienced in the usual course of a dispute proceeding.
In relation to applications for costs under section 48 of the QCAT Act the Tribunal must consider the extent to which the party causing disadvantage is familiar with its practices; the capacity of the party causing disadvantage to act on the tribunal’s orders and directions; and whether the party is acting deliberately.[6] Of relevance in relation to the conduct of the preliminary hearing is that Ms Baxter was self represented at the hearing. The Tribunal is not governed by the strict rules of evidence and is required to act with as little formality as possible.
[6] Ibid s 48(3).
We are not satisfied that this is a factor in favour of an award of costs.
The nature and complexity of the dispute[7]
[7] Ibid s 102(3)(b).
The preliminary hearing involved questions of law and the construction of the terms of the lease and sub-lease.
The preliminary hearing was conducted over a period of half a day and we gave our decision at the conclusion of the hearing after a short break to confer.
The mere fact that Subway and Kennion were legally represented is not of itself determinative of whether the matter was complex nor is it determinative of whether costs ought to be awarded. Leave to be legally represented was given primarily on the grounds that until the business day before the preliminary hearing all parties had applied for leave to be represented at the preliminary hearing and Subway and Kennion had no notice that Ms Baxter intended to object to their applications for legal representation.
In all the circumstances we find that the matter was not overly complex.
This is not a factor in favour of an award of costs.
Relative Strengths of the claims[8]
[8] Ibid s 102(3)(c).
Subway and Kennion contend that the claims against them were untenable.
Subway and Kennion had strong grounds for resisting the orders sought in respect of the trade waste issue.
A claim is not vexatious simply because it is not a strong case or the claim wholly fails[9].
[9] Civic Steel Homes –v- Mitra [2006] QDC 322; Leo v Paulsen [2010] QCAT 122.
This is a factor in favour of an award of costs.
The financial circumstances of the parties[10]
[10] Queensland Civil and Administrative Tribunal Act 2009 s 102(3)(e).
Subway made no submissions in relation to this factor other than it “does not have unlimited budgetary”.
Kennion made no submission in relation this factor.
Ms Baxter informed the Tribunal that she had chosen to not be legally represented at the preliminary hearing because she could not afford to do so.
This is not a factor in favour of an award of costs.
Anything else that the Tribunal considers relevant[11]
[11] Ibid s 102(3)(f).
Subway and Kennion were successful in resisting the trade waste claims. This is a factor in favour of an award of costs but not in itself sufficient.
Conclusion
In our view having regard to the above factors most of which are not in favour of an award of costs, the interests of justice do not point compellingly to a costs award such as to overcome the starting position that each party bear their own costs.
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