Simons v Dowd Lawyers Pty Ltd (No 2) - [2021] QCAT 1

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Simons & Ors v Dowd Lawyers Pty Ltd (No 2) [2021] QCAT 1

PARTIES: ADAM MARK SIMONS

(first applicant)

FIX CONSULTANTS PTY LTD

(second applicant)

SPIEL GROUP PTY LTD

(third applicant)

v

DOWD LAWYERS PTY LTD

(respondent)

APPLICATION NO/S:

OCL047-19

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

12 January 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Hon Peter Lyons QC, Judicial Member

ORDERS:
1.   The applicants shall pay the costs of the respondent thrown away by reason of the adjournment of 2 March 2020, to be assessed under the QCAT Rules.

2.   The applicants shall pay the respondent’s costs of the directions hearing on 13 May 2020, to be assessed under the QCAT Rules.

3.   The applicants shall pay the respondent’s costs of its application to strike out the proceeding, to be assessed under the QCAT Rules.

4.   There is liberty to apply.

CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OTHER MATTERS – where the respondent seeks a number of costs orders against the applicants, including for costs thrown away by reason of an adjournment, its costs for a directions hearing, and its costs of an application to strike out the principal application – where the respondent also seeks a stay of the proceedings until the applicants pay costs the subject of a previous order, and a dismissal of the proceedings if the costs are not paid by a certain date – where the respondent took steps to have the costs the subject of the previous order assessed in accordance with the Uniform Civil Procedure Rules 1999 (Qld), and not the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) – where the default position under s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) is that parties bear their own costs in a proceeding – where ss 48 and 102 of the QCAT Act permit departures from the default position in allowing the Tribunal to make a costs order in favour of a party, where the interests of justice require the making of a costs order – where ss 48(3) and 102(3) set out a number of factors that the Tribunal may have regard to, including whether a party has unnecessarily disadvantaged the other party, the extent to which the party causing disadvantage is familiar with the Tribunal’s practices and procedures, the capacity of the party to understand and act on the Tribunal’s orders and directions, and whether the party has acted deliberately – whether, in all the circumstances, it is in the interests of justice to make the costs orders sought by the respondent – whether an order to stay the principal application or fix a date for the payment of the costs should be made

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 45, s 48, s 58, s 100, s 102, s 107, s 108, sch 3

Queensland Civil…

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 1
Decision Date: 12 January 2021

CaseChat Overview and Summary

Simons v Dowd Lawyers Pty Ltd (No 2) is a case where the respondent, Dowd Lawyers Pty Ltd, sought a number of costs orders against the applicants, Simons. The legal dispute revolves around the costs incurred by the respondent due to an adjournment, a directions hearing, and an application to strike out the principal application. Additionally, the respondent sought a stay of the proceedings until the applicants paid costs from a previous order, and a dismissal if the costs were not paid by a certain date. The respondent had also taken steps to have the costs from the previous order assessed under the Uniform Civil Procedure Rules 1999 (Qld), rather than the Queensland Civil and Administrative Tribunal Rules 2009 (Qld).

The legal issues before the court included whether it was appropriate to grant the costs orders sought by the respondent, considering the default position under section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) that parties bear their own costs in a proceeding. The court had to consider whether sections 48 and 102 of the QCAT Act allowed for departures from the default position, permitting the Tribunal to make a costs order in favour of a party if the interests of justice required it. The court also needed to consider the factors outlined in sections 48(3) and 102(3) of the QCAT Act, such as whether a party had unnecessarily disadvantaged the other party, the party's familiarity with the Tribunal’s practices and procedures, the capacity of the party to understand and act on the Tribunal’s orders and directions, and whether the party had acted deliberately.

The court determined that it was in the interests of justice to make the costs orders sought by the respondent. The applicants were ordered to pay the costs thrown away by reason of the adjournment, the costs of the directions hearing, and the costs of the application to strike out the proceeding. These costs were to be assessed under the QCAT Rules. The court also granted liberty to apply, which means that the respondent could make further applications if needed.

In summary, the court ruled in favour of the respondent, Dowd Lawyers Pty Ltd, ordering the applicants, Simons, to pay the costs incurred due to the adjournment, the directions hearing, and the application to strike out the proceeding. The court's decision was based on the factors outlined in the QCAT Act, and the principle that the interests of justice should be considered when determining whether to make a costs order.

Orders

Orders of the court

1. The applicants shall pay the costs of the respondent thrown away by reason of the adjournment of 2 March 2020, to be assessed under the QCAT Rules.

2. The applicants shall pay the respondent’s costs of the directions hearing on 13 May 2020, to be assessed under the QCAT Rules.

3. The applicants shall pay the respondent’s costs of its application to strike out the proceeding, to be assessed under the QCAT Rules.

4. There is liberty to apply.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Simons & Ors v Dowd Lawyers Pty Ltd (No 2) [2021] QCAT 1
PARTIES:	ADAM MARK SIMONS
(first applicant)
FIX CONSULTANTS PTY LTD
(second applicant)
SPIEL GROUP PTY LTD
(third applicant)
v
DOWD LAWYERS PTY LTD
(respondent)
APPLICATION NO/S:	OCL047-19
MATTER TYPE:	Other civil dispute matters
DELIVERED ON:	12 January 2021
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Hon Peter Lyons QC, Judicial Member
ORDERS:	1. The applicants shall pay the costs of the respondent thrown away by reason of the adjournment of 2 March 2020, to be assessed under the *QCAT Rules. 2. The applicants shall pay the respondent’s costs of the directions hearing on 13 May 2020, to be assessed under the* *QCAT Rules. 3. The applicants shall pay the respondent’s costs of its application to strike out the proceeding, to be assessed under the* *QCAT Rules. 4. There is liberty to apply.*
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OTHER MATTERS – where the respondent seeks a number of costs orders against the applicants, including for costs thrown away by reason of an adjournment, its costs for a directions hearing, and its costs of an application to strike out the principal application – where the respondent also seeks a stay of the proceedings until the applicants pay costs the subject of a previous order, and a dismissal of the proceedings if the costs are not paid by a certain date – where the respondent took steps to have the costs the subject of the previous order assessed in accordance with the Uniform Civil Procedure Rules 1999 (Qld), and not the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) – where the default position under s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) is that parties bear their own costs in a proceeding – where ss 48 and 102 of the QCAT Act permit departures from the default position in allowing the Tribunal to make a costs order in favour of a party, where the interests of justice require the making of a costs order – where ss 48(3) and 102(3) set out a number of factors that the Tribunal may have regard to, including whether a party has unnecessarily disadvantaged the other party, the extent to which the party causing disadvantage is familiar with the Tribunal’s practices and procedures, the capacity of the party to understand and act on the Tribunal’s orders and directions, and whether the party has acted deliberately – whether, in all the circumstances, it is in the interests of justice to make the costs orders sought by the respondent – whether an order to stay the principal application or fix a date for the payment of the costs should be made Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 45, s 48, s 58, s 100, s 102, s 107, s 108, sch 3 Queensland Civil…