Kenfrost (1987) Pty Ltd v Reece Australia Pty Ltd

[2018] QCAT 184

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Kenfrost (1987) Pty Ltd v Reece Australia Pty Ltd & Anor [2018] QCAT 184

PARTIES:

KENFROST (1987) PTY LTD ACN 082384325
(applicant)

v

REECE AUSTRALIA PTY LTD ACN 004097090
VINDEX PTY LTD ACN 00664942

(respondents)

APPLICATION NO/S:

Q79/17

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

27 April 2018

HEARING DATE:

27 April 2018 On the papers

HEARD AT:

Cairns

DECISION OF:

Magistrate Priestly

ORDERS:

The application for costs is dismissed.

APPEARANCES:

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

REASONS FOR DECISION

1. The Applicant seeks an order for costs against the Respondents following resolution of the application by payment from the Respondent of the full amount of the claim. The application was listed for a directions hearing on the Tribunal’s initiative and resolved immediately prior to that hearing. However, an application was made at the hearing to amend the application to include further claims and the respondents applied for dismissal of the originating application on the ground of satisfaction. The application to amend was dismissed. Given that the claim was paid in full, the originating application was dismissed. In the course of determining the application to amend, I decided that the current and proposed claims were framed not as claims for a debt or liquidated demand as required to found jurisdiction.

2. The default position under s.100 of the QCAT Act 2009 is that each party bear their own costs. This is in accordance with an object of the Act (per s.3) to resolve matters in a way that is accessible, fair, just, economical, informal and quick.

3. However, section 102 relevantly provides that 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 if the tribunal considers the interests of justice require it to make the order. Subsection 3 sets out the following considerations:

   (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—

   (e)whether the applicant was afforded natural justice by the decision-maker for the decision; and

   (f)whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;

   (g)the financial circumstances of the parties to the proceeding;

   (h)anything else the tribunal considers relevant.

4. Both parties have provided written submissions.

5. The question is whether the considerations in s.102(3) ‘point so compellingly to a costs award that they overcome the strong contraindication against costs orders in s.100’? I have concluded that the considerations applicable to this case do not overcome the strong contraindication in s.100.

6. I acknowledge:

   (a)the applicant has incurred significant costs in pursuit of the claim;

   (b)there is a disparity in financial resources between the parties in favour of the respondents; and

   (c)there was a strong claim on the part of the applicant.

7. However, the following countervailing features are acknowledged and tip the balance in favour of the conclusion I have reached:

   (a)the applicant was substantially relying on expert evidence from a QBCC investigation and was not put to extra expert costs;

   (b) the legal issues were not complex;

   (c)the claim as presently framed was outside the jurisdiction of the tribunal;

   (d)there was no conduct on the part of the respondents that warranted sanction.