Landel Pty Ltd v Nzeakor - [2021] QCAT 261

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Landel Pty Ltd v Nzeakor [2021] QCAT 261

PARTIES: LANDEL PTY LTD AS TRUSTEE LANCINI PROPERTY GROUP

(applicant)

v

OKEZIE NZEAKOR

(respondent)

APPLICATION NO/S:

RSL107-20

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

22 July 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

1. The Application for miscellaneous matters is dismissed.

2. There is no order as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – DISCONTINUANCE OF OR WITHDRAWAL FROM PROCEEDING – whether costs should be awarded where proceeding withdrawn at early stage but after ‘Response’ filed

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 46, s 100, s 102, s 105, s 106, s 107

Queensland Civil and Administrative TribunalRegulation 2019 (Qld), s 5, s 8
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 86

Retail Shop Leases Act 1994 (Qld), s 55, s 56, s 63

Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364

Barnett & Anor v Pirrone & Anor [2019] QCATA 166
Booth v Helensvale Golf Club Ltd [1997] 2 Qd R 141
Coral Homes QLD Pty Ltd t/as Coral Homes Pty Ltd v Queensland Building Services Authority [2014] QCAT 93
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
Rathie v ING Life Ltd [2003] QSC 429

Valuers Registration Board v Murphy (No. 2) [2019] QCAT 332

APPEARANCES & REPRESENTATION:

Applicant:

Cooper Grace Ward

Respondent:

Self-represented

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

Landel Pty Ltd (‘the Lessor’) lodged a Notice of Dispute with the chief executive under the Retail Shop Leases Act 1994 (Qld) (‘the RSL Act’) on 17 February 2020.[1] The Notice of Dispute sought orders against Okezie Nzeakor (‘the Lessee’), in relation whether the Lessor was entitled to be repaid a portion of a lease incentive.
[1]Retail Shop Leases Act 1994 (Qld), s 55 (‘the RSL Act’).
The chief executive nominated a mediator.[2] On 21 July 2020 the mediator referred the dispute to the Tribunal.[3] Subsequent to referral, the Tribunal made directions on 31 August 2020 that the Lessee file and serve a Response by 6 October 2020 and the application was listed for a Compulsory Conference.
[2]Ibid, s 56.
[3]Ibid, s 63.
On 7 September 2020 the Tribunal received a Notice of withdrawal from the Lessor. Shortly thereafter. on 9 September 2020 the Lessee filed a statement responding to the Notice of Dispute. On 21 September 2020 the Tribunal processed the Notice of withdrawal and sent both parties a copy.
Leave of the Tribunal was not required for the Lessor to withdraw.[4]
[4]QCAT Act, s 46.
The Lessee filed an Application for miscellaneous matters seeking costs.[5] Directions were made for the filing and serving of submissions and evidence and for the application to be determined on the papers.[6]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QCAT 261
Decision Date

CaseChat Overview and Summary

In the matter of Landel Pty Ltd v Nzeakor, the applicant, Landel Pty Ltd as trustee for the Lancini Property Group, sought to recover a portion of a lease incentive from the respondent, Okezie Nzeakor. The dispute was initially lodged with the chief executive under the Retail Shop Leases Act 1994 (Qld) and subsequently referred to the Queensland Civil and Administrative Tribunal (QCAT) for mediation. After the mediation referral, the applicant withdrew the proceedings, leading the respondent to file an application for miscellaneous matters seeking costs. The QCAT was tasked with determining whether the applicant should be ordered to pay costs to the respondent.

The primary legal issue was whether the QCAT had the authority to award costs to the respondent after the applicant withdrew the proceedings at an early stage, following the referral to the Tribunal. The respondent argued that the applicant's withdrawal was unreasonable, and thus, costs should be awarded. The applicant contended that the QCAT did not have the jurisdiction to award such costs, especially as the costs claimed were incurred before the Notice of Dispute was lodged and related to separate District Court proceedings.

The QCAT considered the relevant provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), which provide that each party must bear their own costs unless the Act or an enabling Act otherwise provides. The tribunal noted that costs could be awarded if it was in the interests of justice to do so. The QCAT examined various factors, including whether the applicant acted unreasonably in initiating the proceedings, the nature and complexity of the dispute, the relative strengths of the claims, and the financial circumstances of the parties. The tribunal found that the applicant had not acted unreasonably by initiating the proceedings, given the longstanding dispute over the lease incentive. Additionally, the tribunal did not find the other factors to be in favour of awarding costs, as the proceedings were withdrawn at an early stage, and the nature of the dispute was not overly complex.

Consequently, the QCAT determined that it was not in the interests of justice to award costs to the respondent. The tribunal dismissed the application for miscellaneous matters and made no order as to costs. The decision underscores the principle that the QCAT has broad discretion in awarding costs, but such discretion should be exercised sparingly and only when justified by the interests of justice.

Orders