Justlainer Pty Ltd ATF the Trevor & Allison Black Family Trust v The Body Corporate for Ko Huna Resort Village CTS 27120 - [2025] QCATA 119

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

Justlainer Pty Ltd ATF The Trevor & Allison Black Family Trust v The Body Corporate for Ko Huna Resort Village CTS 27120 & Anor [2025] QCATA 119

PARTIES:

JUSTLAINER PTY LTD ATF THE TREVOR & ALLISON BLACK FAMILY TRUST

(applicant/appellant)

v

THE BODY CORPORATE FOR KO HUNA RESORT VILLAGE CTS 27120

(first respondent)

THE BODY CORPORATE FOR KO HUNA RESORT VILLAGE ACCOMMODATION CTS 27481

(second respondent)

APPLICATION NO/S:

APL327-23

ORIGINATING APPLICATION NO/S:

OCL072-19

MATTER TYPE:

Appeals

DELIVERED ON:

13 November 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

Member Bishop

ORDERS:

1. The respondents must pay the appellant’s costs of and incidental to the appeal on the standard basis for matters in the District Court, as agreed or assessed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where Tribunal upheld strike out application brought by the respondent and dismissed the proceedings – where the appellant was successful on appeal – whether the Appeal Tribunal should make an order for costs

Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Qld), s 120

Commercial and Consumer Tribunal Act 2003 (Qld), s 70, s 73
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43, s 100, s 102

Health Ombudsman v du Toit [2024] QCA 235

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

Tamawood Ltd v Paans [2005] Qd R 101

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

This is an application for costs. On 8 August 2019, the appellant commenced proceedings in the Tribunal against the respondents for breach of contract in relation to caretaker agreements and a letting authority. On 8 March 2022, the respondents lodged an application to strike out the proceedings, including on the basis that the appellant did not have standing.
The Tribunal at first instance upheld the strike out application and dismissed the proceedings. In essence, the respondents’ submission, which was accepted by the Tribunal at first instance, was that as the appellant was not a party to the contracts and was not an approved assignee of any relevant rights under the contracts, it had no standing to bring the proceedings. It was said that it was not an approved assignee because, by s 120(1) of the then Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Qld) (‘the Regulation’) a person’s rights under the contracts could be transferred only if approved by the body corporate under the engagement or authorisation. Such approval had not been given.
The Appeal Tribunal upheld the appeal, finding that the Regulation had no application in the present case and that the relevant rights vested in the appellant by virtue of the provisions of the Trusts Act 1973 (Qld).
The orders made by the Tribunal on 15 May included an order in relation to the filing of any written submissions on the question of costs. Both parties have filed submissions.
Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) is headed ‘Each party usually bears own costs’ and 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 proceeding.
Section 102 of the QCAT Act is headed ‘Costs against party in interests of justice’ and provides:
(1)     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.
(2)     However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.
(3)     In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
(a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);
(b) the nature and complexity of the dispute the subject of the proceeding;
(c) the relative strengths of the claims made by each of the parties to the proceeding;
(d) for a proceeding for the review of a reviewable decision—
(i) whether the applicant was afforded natural justice by the decision-maker for the decision; and
(ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
(e) the financial circumstances of the parties to the proceeding;
(f) anything else the tribunal considers relevant.
Submissions
The respondent submits that a party seeking costs must persuade the Tribunal that ‘compelling factors exist’ for an award of costs, having regard to the various factors set out in s 102 of the QCAT Act. Reference is made to the following passage in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2):[1]
Under the QCAT Act the question that will usually arise in each case in which costs are sought is 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.
[1][2010] QCAT 412 [29].
However, in Health Ombudsman v du Toit,[2] the Court of Appeal rejected the proposition that s 100 of the QCAT Act provided for a ‘strong contra-indication against costs’ and held that the focus should be on what is in the ‘interests of justice’ as provided for in s 102 of the QCAT Act.
[2][2024] QCA 235 [61]–[62].
The factors to be taken into account under s 102(3) of the QCAT Act and relied upon by the parties are addressed in turn. Relevant to s 102(3)(a), the appellant submits that it has been put to considerable trouble and expense in opposing the strike out application, which included the respondents’ lengthy affidavit and submissions and numerous arguments. On the other hand, the respondent simply submits that there is no basis for concluding that it has acted in a way that has disadvantaged the appellant.
Relevant to s 102(3)(b) of the QCAT Act, the appellant submits that a number of the arguments raised were complex and involved voluminous evidential material. It is said that, in part, this is demonstrated by the findings of the Appeal Tribunal regarding errors of law made by the Tribunal at first instance. The respondents submit that the basis of the appeal was ‘quite narrow’, as evidenced by the brevity to the respondents’ submissions in the appeal.
In relation to s 102(3)(c) of the QCAT, the appellant submits that the finding of the Appeal Tribunal demonstrates that the strike out application was weak, deficient and flawed. The respondent refers to the decision at first instance and submits that it was ‘entitled to advocate is support of that decision’.
Relevant to s 102(3)(e) of the QCAT Act, it is submitted that the appellant has incurred considerable expense in opposing the strike out application. While the appellant submits that ‘because of its current financial circumstances’ the discretion weighs heavily in favour of a costs order, no detail is provided as to those financial circumstances. The respondent simply states that it cannot comment on the financial circumstances of the appellant and makes no reference to its own financial circumstances.
As to s 102(3)(f) of the QCAT Act, ‘anything else the tribunal considers relevant’, the appellant states that the present matter involves a commercial dispute and from the outset all parties have been legally represented. It is also noted that following the respondents’ success at first instance in relation to the strike out application, they made an application for costs.
The respondent submits that the present decision does not dispose of the entirety of the respondent’s dismissal application and it is possible that upon consideration of the remainder of that application by the Tribunal, the proceedings will be dismissed. While the Tribunal Member at first instance noted that the strike out application also relied on two other grounds (a relevant instrument had not been properly stamped and commencement of the proceedings outside the limitations period), it was found that the issue of standing was determinative of the proceedings.
Discussion
The dispute is commercial in nature and both parties were given leave to be legally represented, at first instance and on appeal. In its strike out application, the respondents sought an order for costs. Also, as submitted by the appellant, the factual and legal issues in relation to standing were complex, involving consideration of diverse legislation and case law. In Tamawood Ltd & Anor v Paans,[3] which concerned the awarding of costs under the Commercial and Consumer Tribunal Act 2003 (Qld) (‘the CCT Act’) and where, by s 70, the main purpose was ‘to have parties pay their own costs unless the interests of justice require otherwise’, Keane JA, with whom Philippides J agreed, stated:
[3][2005] QCA 111 [30]–[32].
…
[30] First, the Tribunal found that each party was justified in engaging the services of legal representatives to assist them in the conduct and defence of what the Tribunal recognized to be complex proceedings. That finding alone could be, in my view, a sufficient basis to conclude that the interests of justice warranted the exercise of the discretion to award costs in favour of the successful party, at least in the absence of any countervailing consideration. The Tribunal erred in failing to appreciate the implication of this finding for an understanding of where the interests of justice lay in relation to the costs of the proceedings.
[31] There will inevitably be occasions when the aspirations of the legislature that parties before the Tribunal should not be legally represented cannot reasonably be met having regard to the nature of the issues involved. That this is so is recognized by the terms of s 73 which deals with the topic of representation. It provides:
"73 Purposes of div 7
The main purpose of this division is to have parties represent themselves and save legal costs unless the interests of justice require otherwise."

[32] If orders for costs were not to be made in favour of successful parties in complex cases, then just claims might not be prosecuted by persons who are unable to manage complex litigation by themselves. Such a state of affairs would truly be contrary to the interests of justice; and an intention to sanction such a state of affairs cannot be attributed to the legislature which established the Tribunal.
…

It is noted that by analogy with s 73 of the CCT Act, s 43(1) of the QCAT Act is headed ‘Representation’ and provides:
The main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise.
The strike out application has led to considerable delay and cost and, in the circumstances outlined above, it is appropriate to make a costs order in favour of the appellant. The order for costs is made in relation to the appeal only. As submitted by the respondents, the strike out application was based on three grounds, only one of which was considered by the Tribunal at first instance. Any costs application in relation to the strike out application generally can be determined when it has been fully considered, or, if it is not pressed, upon final determination of this matter.
The following order is made:
1. The respondents must pay the appellant’s costs of and incidental to the appeal on the standard basis for matters in the District Court, as agreed or assessed.