Reynolds v Body Corporate for Mount View Apartments (No 2)

[2019] QCAT 118

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Reynolds v Body Corporate for Mount View Apartments (No 2) [2019] QCAT 118

PARTIES:

STEVEN MARK REYNOLDS as trustee for the REYNOLDS FAMILY TRUST
(applicant)

v

BODY CORPORATE FOR MOUNT VIEW APARTMENTS CTS 2375

(respondent)

APPLICATION NO:

OCL032-17

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

1 May 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Barlow QC

ORDERS:

1.   The costs of the determination of a preliminary question made on 24 August 2018 be reserved.

2.   The application for miscellaneous matters filed by the applicant on 25 October 2018 be adjourned to the final hearing of this proceeding.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INTERLOCUTORY PROCEEDINGS – preliminary question referred for separate determination – whether successful party should be awarded costs of determination – whether costs of determination should be reserved to the final determination of the proceeding

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

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 applied

REPRESENTATION:

Applicant:

M M Walker, instructed by Stokes Moore

Respondent:

B P Strangman, instructed by Grace Lawyers

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 24 August 2018 I decided a preliminary question that had been referred for separate determination in this proceeding.[1]  The applicant succeeded in demonstrating that the tribunal has jurisdiction and power to determine the dispute between the parties.

   [1]Reynolds v Body Corporate for Mount View Apartments [2018] QCAT 283.

2. The applicant subsequently applied for an order that the respondent pay the applicant’s costs of the preliminary determination and of his application for costs, on the standard basis to be assessed on the District Court scale.  The respondent opposes that application, which is the subject of this decision.

3. The applicant contends that the order he seeks should be made because:

   (a)the issues in the referred question were complex, requiring the exchange of lengthy submissions settled by counsel;

   (b)the proceeding includes a claim for damages that, if not within the tribunal’s jurisdiction, would have been within the jurisdiction of the District Court;

   (c)the proceeding is a complex commercial matter in which both parties are represented by solicitors, leave having been given to them to be represented by lawyers;

   (d)the body corporate comprises 21 lots and therefore has the financial capacity to pay the applicant’s costs; and

   (e)the respondent foreshadowed an application for costs in its submissions on the preliminary question.[2]

   [2]This submission appears to imply that what was said to be good for the goose should be good for the gander.

4. The respondent submits that:

   (a)the starting point on costs, prescribed by s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), is that each party to a proceeding in the tribunal must bear the party’s own costs except as otherwise provided under that Act or an enabling Act;

   (b)the applicant has not demonstrated that the interests of justice point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100;[3]

   (c)the nature and complexity of the dispute are relevant under s 102(3)(b), but that is the nature and complexity of the dispute the subject of the entire proceeding, not of an interlocutory dispute, and therefore the tribunal cannot consider these factors until the entire dispute is determined;

   (d)there is no evidence of the financial circumstances of the parties;

   (e)the fact that leave was granted for legal representation for the entire dispute (not just for the interlocutory application) is not sufficient, as that leave was for the entire dispute;

   (f)the statement that a costs application may follow the determination of the preliminary question falls short of a Calderbank offer that may otherwise entitle a party to costs of the application;

   (g)a principal issue when considering an application for costs is the parties’ conduct in the proceeding, which cannot be determined until the proceeding has been finalised;[4]

   (h)therefore the costs of the preliminary question should be reserved for determination after the proceeding has been finalised.

   [3]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, [29].

   [4]TLL Investments Pty Ltd v Body Corporate for the Grange (No 2) [2018] QCAT 50, [19] to [24].

5. I accept that the preliminary question raised complex issues that, of themselves, justified the parties’ legal representation.  The tribunal was greatly assisted by the parties’ written submissions in making its determination on that question.

6. However, I respectfully adopt the approach of Wilson J in Ralacom, namely that the question that usually arises where costs are sought it 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.

7. In my view, at this stage of the proceeding the circumstances do not point so compellingly to a costs award being made.  The circumstances do tend toward the appropriate order being that the respondent pay the applicant’s costs of the preliminary determination.  In particular, this is indicated by the circumstances that the referred question was complex, the parties were properly represented by counsel and solicitors, which was of assistance to the tribunal, and the respondent did not succeed in its contention that the tribunal did not have jurisdiction to determine the dispute.  However, I accept the respondent’s submission that there is insufficient evidence of the parties’ financial circumstances (notably, that criterion refers to both parties’ circumstances), which may be an important consideration.  I do not accept that the tribunal cannot, nor ordinarily should not, order costs of an interlocutory dispute within a proceeding (which appears to be the tenor of its submissions described in paragraphs [4(c)] and [4(e)] above. 

8. I consider overall that, in this case, it is premature to make an order concerning those costs.  The ultimate outcome of the proceeding may well be relevant to whether the interests of justice require or justify an order for costs of the preliminary question, even though the costs of the preliminary decision must be dealt with separately from the costs of the principal proceeding. 

9. In the circumstances, I consider that the appropriate orders are to reserve the costs of the preliminary question and to adjourn the application filed by the applicant seeking orders for costs of that question (and of the application) to the final hearing of the proceeding.