Strathfield Group Limited v Overton
[2013] QCAT 450
•27 August 2013
| CITATION: | Strathfield Group Limited v Overton & Anor [2013] QCAT 450 |
| PARTIES: | Strathfield Group Limited (Applicant) |
| v David Overton Glenys Overton (Respondents) |
| APPLICATION NUMBER: | RSL071-10 |
| MATTER TYPE: | Retail shop leases matters |
| HEARING DATE: | 25 August 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Presiding Member S M Kairl, Member D McBryde, Member |
| DELIVERED ON: | 27 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The applicant Strathfield Group Limited shall pay to the respondents, David Overton and Glenys Overton, for costs of and incidental to these proceedings, the sum of twenty one thousand dollars ($21,000). 2. The applicant shall pay the said sum to the respondents by 4 pm on Friday 14 September 2013. |
| CATCHWORDS: | RETAIL SHOP LEASE – ORDER FOR COSTS – Queensland Civil and Administrative Tribunal Act2009 s 102 – persistent failure to comply with orders and directions – acting in ways unnecessarily disadvantaging opponents – causing adjournments without justification or excuse – conducting proceeding vexatiously – substantial costs thrown away – order for costs in the interests of justice – particulars of costs difficult to assess – costs on standard basis Queensland Civil and Administrative Tribunal Act 2009, ss 32, 48, 100, 102 |
APPEARANCES and REPRESENTATION:
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
These proceedings in the Tribunal began so long ago as 29 July 2010, following unsuccessful proceedings by the applicant (“Strathfield”) in the Supreme Court of Queensland.
Details of Strathfield’s application to the Tribunal are set out in its decision delivered on 6 May 2013 (“the May decision”).[1]
[1] May decision at [3].
That application was followed by a long series of dilatory and vexatious actions and inactions on Strathfield’s part, and failures to comply with orders or directions of the Tribunal. The sorry history of these defaults is detailed in the May decision.[2]
[2] May decision at [6]-[20].
On 23 November 2012 the Tribunal, dismissing an application by the Overtons for dismissal of these proceedings, directed that, if Strathfield did not file its material by 7 December 2012, its application would be dismissed, and the Overtons would be at liberty to seek an order for costs.
On 7 January 2013 the Tribunal ordered Strathfield to disclose specified documents by 22 January 2013.
Strathfield did not comply with the latter order, and on 19 March 2013 it was ordered that a decision on dismissing or striking out the application be made on the papers, not before 2 April 2013.
The question of dismissal came before the Tribunal on 6 May 2013, when the following orders were made:
The Notice of Dispute filed herein on 29 July 2010 is dismissed.
The Respondents are at liberty to file and serve a particularised claim for costs of an incidental to proceedings in the Tribunal, no later than 4 pm on Friday 31 May 2013.
If any such claim is made, the Applicant may file a response no later than 4 pm on Friday 14 June 2013.
The Overtons duly filed and served a particularised claim for costs on 27 May 2013.
No response to that claim has been filed by Strathfield.
The Overtons claim costs (and outlays to counsel and forensic accountants) totalling $33,465.30, exclusive of costs of and incidental to the associated Supreme Court proceedings. The Overtons were represented by Messrs Hopgood and Ganim, solicitors, from July 2010 to March 2013.
The proceedings included an interlocutory hearing as to jurisdiction, in which Strathfield briefed senior counsel, and the Overtons by junior counsel. That application was decided in favour of the Overtons, and Strathfield’s points of claim were amended and re-served. There followed a long series of directions hearings, failures on Strathfield’s part to comply with directions, re-directions and extensions of time, largely if not entirely due to Strathfield’s dilatory conduct of its case.
For example, at a Directions Hearing on 28 February 2012 Strathfield was ordered to produce its witness statements and particulars of damages by 27 April 2012. Those materials did not appear until 1 October 2012, and even then, were incomplete.
On 16 July 2012 Strathfield’s representative informed the Tribunal that she would not be attending a Directions Hearing set down for the following day. As the Tribunal has found, no satisfactory explanation for her absence was forthcoming.[3]
[3] May decision at [10].
It was claimed that the illness of a Mr Hovanessian, a director of Strathfield, caused the long delay in producing the company’s late and inadequate response to the direction given on 28 February 2012.[4] However, no medical evidence was adduced in support of that claim.[5]
[4] See paragraph [12], above.
[5] May decision at [14].
Three weeks’ notice was given of a directions hearing on 19 March 2013. Hovanessian notified the Tribunal on 18 March 2013 that he was unable to appear, and his nominated replacement, Mr Gibson also failed to appear. The Tribunal demanded an explanation for non-attendance, to be supported by medical evidence. No satisfactory response was received.
Strathfield’s ultimately futile and wasteful proceedings have generated not only substantial costs, but also several voluminous files in the records of the Tribunal.
There is ample justification for a departure from the primary rule that each party to proceedings in the Tribunal must bear its own costs.[6] The conduct of Strathfield, as summarised in these reasons and in the May decision, show beyond doubt that Strathfield has acted in ways that unnecessarily disadvantaged it opponents[7], as described in section 48 of the Act.[8] It is in the interests of justice that costs should be awarded to the Overtons.
[6] QCAT Act s 100.
[7] QCAT Act s 102(3)(a).
[8] QCAT Act s 48(1)(a),(c),(d),and (f).
The amount claimed is large, but there is no explicit claim for indemnity costs. I consider that costs should be awarded, as in the District Court, on what has long been known as the party and party basis, now described as the standard basis.[9]
[9] Uniform Civil Procedure Rules 1999 rr 702, 743S(a).
It must be said that the particulars filed in support of the costs application, albeit extensive, do not readily lend themselves to precise assessment. Copies of several solicitor’s accounts nominate totals due from time to time, “in accordance with the attached Memo of Work Performed”. When one turns to those memoranda, one finds a list of dates and sometimes vague work descriptions, without attribution of particular charges to the numerous items. For examples: “14/9/10: Attendance with Jon Erbacher re review of Court and QCAT documents”; “20/9/10: Attendance with Jon Erbacher re QCAT jurisdiction and Retail Shop Leases Act”; “6/4/11: Attendance with Richard Gardiner re offer of settlement”. It is at least possible that some items relate to, or overlap costs of the Supreme Court proceedings (over which, of course, QCAT has no control).
Doing the best we can, upon a careful examination of the material supplied, we consider an appropriate amount to award, on the standard basis, to be twenty one thousand dollars ($21,000). There will be orders accordingly.
ORDERS
1. The applicant Strathfield Group Limited shall pay to the respondents, David Overton and Glenys Overton, for costs of and incidental to these proceedings, the sum of twenty one thousand dollars ($21,000).
2. The applicant shall pay the said sum to the respondents by 4 pm on Friday 14 September 2013.
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