Murdoch v Peter Previtera and Joseph Alexander Mackay t/as Alex Mackay & Co (No. 2)

[2018] QCAT 172

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Murdoch v Peter Previtera and Joseph Alexander Mackay t/as Alex Mackay & Co (No. 2) [2018] QCAT 172

PARTIES:

NOELA AND PETER MURDOCH
(applicants)

v

PETER PREVITERA AND JOSEPH ALEXANDER MACKAY T/A ALEX MACKAY & CO

(respondents)

APPLICATION NO/S:

OCL071-16

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

31 May 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

ORDERS:

The applicants are to pay the respondent’s costs of the proceeding as assessed under the QCAT rules.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENTS – where a costs agreement was declared to exist between the parties – where the respondent seeks the costs of enforcing disputed economic rights – where each party bears their own costs under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100 – where the presumption against costs can be overcome by litigation conduct – where the applicants were found to have unreasonably denied the existence of a costs agreement – where the applicants are ordered to pay the respondent’s costs in the interests of justice

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 100, 102(3)

Broughton v B & B Group Investments Pty Ltd [2017] VSCA 227
McEwen v Barker Builders Pty Ltd [2010] QCATA 49

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. On 2 February 2018 the tribunal I constituted declared that the subject matter in OCL071-16 (a costs agreement) existed between the applicant (the clients) and the respondent (a legal firm).

2. The respondents in that proceeding have filed an application for the costs of bringing it to enforce disputed economic rights.

3. Other than as provided by statute each party to a QCAT proceeding bears their own costs.[1]

   [1]QCAT Act s 100.

4. The QCAT Act permits the tribunal to make an order requiring a party to a proceeding to pay the fixed or assessed costs of another party only if it considers the interests of justice require it.

5. According to statements in McEwen v Barker Builders Pty Ltd[2] the test in a costs application is whether the relevant circumstances “… point to (an) award in a sufficiently compelling way to overcome the statutory hurdle” inherent in s 100 QCAT Act.

   [2][2010] QCATA 49 at [17].

6. The process involves matters of judgment and degree.  Neither victory in the proceeding nor, when raised, financial hardship, are decisive but denying the successful party the reasonable cost of being forced to take the forensic risk of litigating to refute a false case raised against it is hardly just.

7. The discretion whether to make a costs order or not is informed by anything the tribunal considers relevant including the specific criteria mentioned in s 102(3) QCAT Act.

8. Of those, the most weighty in this case are the nature and complexity of the subject matter of the proceeding, the relative strengths of the rival claims and the parties’ overall litigation conduct.

9. The applicants vigorously denied legal liability for the respondent’s services calculated under the costs agreement.  They pleaded an (implausible) oral no win – no fee agreement and in addition denied ever receiving contractual documentation from the respondent. Considered in isolation these claims were not inherently improbable, were corroborated by a written statement from their daughter, not weakened by cross-examination and uncontradicted by other direct evidence.

10. Unwanted litigation was the only option the applicants had to resolve the dispute and recover thousands of dollars in unpaid legal fees for work done as requested.

11. The approach taken by the parties meant that neither they nor any of their witnesses were cross-examined as to credit but there was sufficient inferential evidence, including their own behaviour and proven tendencies, at odds to prefer the respondent’s witnesses on disputed matters[3]  and reject the applicants’ version as knowingly untrue.

    [3]Broughton v B & B Group Investments Pty Ltd [2017] VSCA 227 at [108]-[109].

12. As a corollary, three family members collaborated in a deliberate attempt to deceive and mislead the tribunal and damage the financial position and professional reputation of the respondent by attesting to false facts. 

13. The applicant’s litigation conduct put the respondent to needless trouble and expense and resulted in a dispute over a bill dragging on for years.

14. The circumstances referred to compel the making of an order for costs to compensate the respondent for having to litigate to prove what should have never been denied.

15. The applicants are to pay the respondent’s costs of the proceeding assessed under the QCAT rules.