Miles v Gough (No. 2)

Case [2018] QCATA 183

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Miles & Anor v Gough & Ors (No. 2) [2018] QCATA 183

PARTIES:

JUSTIN MILES and LISA MILES
(applicants)
v

WAYNE LEE GOUGH and ROYALIE ANNE WALTERS
(first respondents)

CRAIG WILLIAMS and AMBER JOY WILLIAMS
(second respondents)

BODY CORPORATE FOR SOLARUS RESIDENTIAL COMMUNITY TITLES SCHEME CTS 41491
(third respondent)

APPLICATION NO:

APL109-15

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

28 November 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

No order as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – where appeal from decision of adjudicator appointed by Office of the Commissioner for Body Corporate and Community Management – where appeal limited to questions of law – where applicant unsuccessful in appeal – where parties legally represented in appeal – consideration of whether ‘interests of justice’ require making of order for costs – consideration of s 102(3) of Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Body Corporate and Community Management Act 1997 (Qld), s 167, s 290
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102(3)

Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364
McEwen v Barker Builders Pty Ltd [2010] QCATA 49
Queensland All Codes Racing Industry Board v Abbott (No. 2) [2016] QCATA 49
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
Williams v Body Corporate for Circle on Cavill CTS 39918 [2013] QCATA 39

REPRESENTATION:

Applicants:

Cohen Legal

First and Second Respondents:

Connolly Suthers Lawyers

Third Respondent:

Stratum Legal

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. On 14 September 2016 I ordered the dismissal of an appeal by Mr and Mrs Miles against a decision by an adjudicator in the office of the Commissioner for Body Corporate and Community Management.[1] A subsequent application for leave to appeal to the Court of Appeal was dismissed.[2]

  2. The costs of the appeal to the QCAT Appeal Tribunal fall for determination.

  3. Unless the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) or an enabling Act provides otherwise, parties to proceedings in the tribunal must bear their own costs.[3] The exception to the general rule regarding costs is found in s 102(1) of the QCAT Act. The tribunal may order a party to pay all or some of another party’s costs if the tribunal considers the interests of justice require the making of such an order.

    [3]QCAT Act, s 100.

  4. In deciding whether to award costs the tribunal may have regard to a number of matters:

    (a)whether a party to a proceeding is acting…

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Details
AGLC
Miles v Gough (No. 2) [2018] QCATA 183
Case
[2018] QCATA 183
Decision Date

CaseChat Overview and Summary

Miles v Gough (No. 2) involved lot owners in the "Solarus" complex in Townsville, who appealed a decision dismissing their application for orders to remove structures on adjacent lots. The appeal was limited to questions of law, and both parties were legally represented. The applicants argued that the adjudicator failed to consider various aspects of their case, including the interference caused by the structures and alternative means the respondents could have adopted. The applicants contended that the appeal was straightforward and not genuinely motivated, suggesting that costs should not be awarded. The legal issue was whether the 'interests of justice' required an order for costs under section 102(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The tribunal examined factors such as whether any party acted in a way that unnecessarily disadvantaged another, the complexity of the dispute, and the relative strengths of the parties' claims. It concluded that the applicants were entitled to pursue their rights and that the appeal did not involve complex legal concepts or technical evidence. The tribunal found that the interests of justice did not compel a costs order, given the straightforward nature of the appeal and the applicants' genuine motivation.

The tribunal considered the applicants' argument that the appeal was not particularly complex or difficult, and there were no factual matters for determination. It noted that the applicants' conduct during the appeal was efficient and did not waste tribunal resources. The tribunal also found that the applicants had not acted in a way that unnecessarily disadvantaged the respondents and that there was no suggestion that the appeal was not genuinely motivated. The tribunal emphasised that the phrase "in the interests of justice" confers a broad discretionary power, but the circumstances must point compellingly to a costs award to overcome the strong contra-indication against such orders. The tribunal concluded that the applicants were entitled to appeal the decision and that their pursuit of their rights did not constitute acting in a way that unnecessarily disadvantaged the respondents. The tribunal found that the appeal did not involve complex legal concepts or technical evidence that required complex reasoning. Therefore, the tribunal decided that the interests of justice did not require a costs order.
ORDERS:
No order as to costs.

Orders

Orders of the court

No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In deciding whether to award costs the tribunal may have regard to a number of matters:(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) …(e) the financial circumstances of the parties to the proceeding;(f) anything else the tribunal considers relevant.[4][4]Ibid, s 102(3).The decision in APL109-15 The applicants were lot owners in ‘Solarus’ a multi-story residential complex in Townsville. Their lot was located on the level above lots owned by the first and second respondents. The third respondent gave the first and second respondents permission to construct louvres over their outdoor living areas. The applicants complained that the structures interfered with the use and enjoyment of their lot. They applied to the Office of the Commissioner for Body Corporate and Community Management for orders for the removal of the structures. An adjudicator dismissed the application. The applicants appealed to the QCAT Appeal Tribunal where they were, again, unsuccessful. The applicants’ relied upon the following grounds of appeal:a. The adjudicator erred in:i) failing to give proper consideration to the evidence in relation to whether the structures constituted a nuisance or unreasonable interference;ii) failing to give proper consideration to the extent to which there was a substantial degree of interference with the reasonable standards for the enjoyment of the premises as a result of the structures;iii) Failing to conclude that the structures were a nuisance;iv) Failing to conclude that the structures were an unreasonable interference;v) Failing to consider what just and equitable orders should be made.b. The adjudicator erred in failing to take into consideration alternative means the respondents could have adopted to achieve the amenity provided by the structures;The adjudicator erred in failing to undertake a site inspection;The adjudicator erred by taking into consideration that the structures had been approved by the local authority;e. The adjudicator erred in applying Tenacity Consulting v Warringah;f. In applying the test in Tenacity Consulting the adjudicator failed to assess the impact of the interference to the views of the whole property and failed to consider or understand the extent to which the views were affected from different parts of the lot;g. the adjudicator failed to take into consideration the reasonableness of the structures and, to the extent that he did take this into account, he failed to take into account:i.the evidence of the diminution in value of the property; ii.the objective reasonableness of the structures;iii.the extent of the evidence in relation to the extent of lost views.h. the adjudicator failed to analyse and make appropriate findings of fact as to the evidence of the totality of the losses of view;i. the adjudicator erred in concluding that the losses of view were minor having regard to the nature and value of the lot, its position in the property and the nature and character of the property;j. the adjudicator erred in failing to make a determination as to which assessments of the diminution in value he preferred;k. the adjudicator failed to conclude that the level of interference with the appellants’ enjoyment of the lot was sufficiently substantial to demonstrate a breach of s 167 BCCMA.

Ratio Decidendi

Legal Principle Established

The applicants say that the matter was not one of any particular complexity or difficulty, limited as it was to an appeal on a question of law. There were no factual matters for determination and the conduct of the appeal by the applicants was efficient and without causing wastage of tribunal resources. The applicants say that the relative strengths of the parties claims were not disproportionate nor had the applicants acted in a way that unnecessarily disadvantaged the respondents. They say that there is no suggestion the appeal was not genuinely motivated.Consideration As has been observed, the starting point in considering costs in tribunal proceedings is that each party should bear their own costs unless the interests of justice require otherwise. What is meant by ‘in the interests of justice’ was explained by then QCAT President, Alan Wilson J in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2):The phrase “in the interests of justice” is not defined in the Act but is to be construed according to its ordinary and plain meaning, which obviously confers a broad discretionary power on the decision-maker.[7][7][2010] QCAT 412, [4]. His Honour also observed in Ralacom: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.[8][8]Ibid, [29]. The principles identified in Ralacom apply in tribunal proceedings involving body corporate adjudicator appeals.[9] [9]Williams v Body Corporate for Circle on Cavill CTS 39918 [2013] QCATA 39. I will consider each of the matters set out at s 102(3) of the QCAT Act. The matters listed in s 102(3) are not grounds for awarding costs, merely factors the tribunal may take into consideration in determining whether to make a costs order.[10][10]Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364.a. Party acting in a way that unnecessarily disadvantages another party It is not submitted by any party that the applicants acted at any time in a way that unnecessarily disadvantaged the respondents. There is no suggestion that the applicants were motivated by anything other than to seek to vindicate their position regarding the structures on the respondents’ lots. The applicants were entitled to appeal the decision of the adjudicator. That they pursued their rights and entitlements in the Tribunal is not to be construed as acting in a way that unnecessarily disadvantaged the respondents. b. The nature and complexity of the dispute As the appeal tribunal has previously held:The Appeal Tribunal cannot decide that a proceeding is complex simply by a head count of grounds. To qualify as ‘complex’, an appeal should involve difficult or novel legal concepts or technical evidence that requires complex reasoning to enable the Tribunal to make a decision.[11] [11]Queensland All Codes Racing Industry Board v Abbott (No. 2) [2016] QCATA 49, [13].