Myles v Benn

[2012] QCATA 125

CITATION: Myles v Benn [2012] QCATA 125

PARTIES:	Anthony James Myles AJ Miles & Co Pty Ltd (Applicant/Appellant)
v
Jason Benn (Respondent)

APPLICATION NUMBER: APL463-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 25 July 2012

DELIVERED AT: Brisbane

ORDERS MADE: The applicant to pay the respondent’s costs fixed at $1,200 by 30 August 2012.

CATCHWORDS:

Costs – where applicant failed to comply with directions to prosecute appeal – where appeal dismissed – causing disadvantage

Queensland Civil and Administrative Tribunal Act2009

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. This appeal arises out of a building dispute heard by the Tribunal in Cairns.  A decision was delivered on 18 November 2011.  The Tribunal ordered that Mr Myles, the appellant, pay to Mr Benn $140,340.72.  From that decision Mr Myles filed an application for leave to appeal or appeal on 19 December 2011. 

2. The grounds of appeal are uninformative and raise a general complaint that the decision to award $140,340.72 was unreasonable and the effect of the decision was to cause Mr Myles to pay for Mr Benn’s house renovation.  The grounds of appeal do not point to any specific error on the part of the decision maker.

3. In the usual way, the Tribunal made directions for the filing of submissions so that Mr Myles would have an opportunity to elaborate on his specific complaints with respect to the learned Member’s reasons.  Directions were made initially on 9 January 2012 that Mr Myles file his submissions by 27 January 2012.  That milestone passed with the submissions not being filed and he was given further time to file his submissions by 9 February 2012.  He did not comply with that and sought an extension of time.  As an indulgence, the Tribunal granted him further time to 9 March 2012 to file his submissions.  After another request for an extension, the time was again extended to 30 March 2012 but this time, the order was qualified with a direction that if he did not comply with that timeframe the application for leave to appeal would be dismissed.

4. Predictably, he failed to comply with the last direction and then on 3 April 2012 the application for leave to appeal was dismissed with further directions for the filing of submissions on costs.  Mr Benn’s solicitors have filed submissions on costs but Mr Myles has not.

5. It is evident from a perusal of the file that Mr Benn’s solicitors were actively involved in attempting to have the appeal prosecuted expeditiously and wrote a number of emails to the Tribunal pointing out that Mr Myles was not complying with directions and eventually they asked for the appeal to be dismissed.

6. The question of whether costs should be awarded on Mr Benn’s application requires the consideration of section 100 of the QCAT Act. It provides that other than as provided in the Act each party to a proceeding must bear its own costs.

7. Section 102 permits the Tribunal to make an order for costs if it considers that it is appropriate to do so in the interests of justice.  Subsection 3(a) makes specific provision for circumstances where a party to a proceeding is acting in a way that unnecessarily disadvantages another party.

8. It seems to me that the type of conduct engaged in by Mr Myles in this appeal is of the type envisaged to be caught by subsection (a).  Clearly he has caused Mr Benn a disadvantage by failing to comply with the Tribunal’s directions which has resulted in Mr Benn’s legal costs being unreasonably escalated in his solicitors’ endeavours to have the appeal progressed. 

9. I am of the opinion that this is a case where the interests of justice do require an order for costs against Mr Myles. 

10. Section 107 provides that the Tribunal should fix costs if at all possible.  If it is not possible to fix costs then they should be assessed.

11. Other than filing the submissions on costs, because Mr Myles did not comply with directions, Mr Benn was not required to file any submissions in the substantive appeal.  The appeal file demonstrates that there was ongoing contact with the Tribunal by email and some correspondence.  Relying on my experience in practice and, to avoid any further unnecessary expense it seems to me that if I were to fix the costs at $1,200 inclusive of GST[1] this would be a reasonable amount to compensate for the costs incurred by Mr Benn in having to respond to the appeal.

    [1]        $300/hr for 4 hours.

12. Therefore I propose to order that Mr Myles pay to Mr Benn $1,200 by 30 August 2012.