The Body Corporate of Tradition Community Title Scheme 32885 v The Body Corporate of Coomera Waters Community Titles Scheme 29693

[2013] QCAT 303

CITATION: The Body Corporate of Tradition Community Title Scheme 32885 v The Body Corporate of Coomera Waters Community Titles Scheme 29693 [2013] QCAT 303

PARTIES:	The Body Corporate of Tradition Community Title Scheme 32885 (Applicant)
v
The Body Corporate of Coomera Waters Community Titles Scheme 29693 (Respondent)

APPLICATION NUMBER: OCL110-11

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Dr J R Forbes, Member

DELIVERED ON: 14 June 2013

DELIVERED AT: Brisbane

ORDERS MADE: The Applicant Body Corporate of Tradition Community Title Scheme 32885 shall pay to the Respondent Body Corporate of Coomera Waters Community Titles Scheme 29693 the sum of six hundred and eighty eight dollars and sixty cents ($688.60) by 4pm on Tuesday 25 June 2013.

CATCHWORDS:

COSTS – indemnity costs – unnecessarily disadvantaging another party to proceedings – vexatious conduct – costs of interlocutory application on indemnity basis

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 48, s 102

Vyncan Pty Ltd, Hartley v Body Corporate for Nautilus on the Esplanade CTS 683 [2009] QCCTBCCM 30
Higham v The Body Corporate for the Palms 3 Warana [2011] QCAT 21

APPEARANCES and REPRESENTATION (if any):

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

1. I delivered the substantive decision in this matter on 9 April 2013.

2. So far as is now material, I then made the following order:

   The Respondent’s application for costs is dismissed, save and except the costs of its application, filed on 16 August 2012 for liberty to file and serve an amended Response.

3. By further order the Applicant (“Tradition”) was at liberty to file and serve submissions in response to the Respondent’s said application by 4 pm on Wednesday 24 April 2013.

4. As at the date of this decision Tradition has not filed any such submission.

5. It is now appropriate to decide the application of the Respondent (“Coomera”) for costs of the application described in paragraph [2], above.

6. This matter first came before me on 23 January 2012, when I found that Tradition had produced no expert evidence in support of its claim. But instead of dismissing the application on that ground[1] I adjourned the proceedings to allow proper evidence to be obtained, ordering that -

   The Applicant is at liberty to file and serve upon the Respondent, within forty- two (42) days of service of these orders upon it, a relevant market determination by a duly qualified valuer.

   [1]        As in Vyncan Pty Ltd, Hartley v Body Corporate for Nautilus on the Esplanade CTS 683

   [2009] QCCTBCCM 30; Higham v The Body Corporate for the Palms 3 Warana [2011] QCAT 21.

7. On 6 February 2012 the time for Tradition’s compliance with that order was extended from forty-two (42) to forty-nine (49) days.

8. On 21 February 2012 time was further extended, with Coomera’s consent, to 31 July 2012.

9. On or about 20 June 2012 Tradition served upon Coomera, and filed in the Tribunal, copies of a market valuation of the subject lots, dated 24 May 2012, and prepared by Mr Ashley Forbes[2] AAPI, certified practising valuer, of the firm LandMark White (Gold Coast) Pty Ltd.

   [2]        I should perhaps record that Mr Forbes is not a relative of mine, nor have we had any

   social or business dealings with each other.

10. On or about 7 August 2012 Coomera requested Tradition to allow an extension of time for delivering Coomera’s response to Mr Forbes’ valuation.

11. On 14 August 2012 Tradition refused that request.

12. On 16 August 2012 Coomera applied for liberty to file and serve a response to the Forbes report by 30 September 2012.

13. On 27 August 2012, as a matter of natural justice, I granted that application.

14. In my view, Tradition’s refusal of Coomera’s request for an extension of time[3] is a classic example of unnecessarily disadvantaging the other party to this proceeding, within the meaning of section 102(3)(a) of the QCAT Act, and vexatious conduct within the meaning of section 48(1)(f) thereof. It should never have been necessary for Coomera to make a formal application to the Tribunal to enable it to do what natural justice clearly entitled it to do. These considerations apply a fortiori in the circumstances of this case, in which Tradition was the recipient of several concessions by Coomera and the Tribunal.

    [3]        As described in paragraphs [10] and [11], above.

15. I am satisfied that the interests of justice require the Tribunal to order that Tradition indemnify Coomera for its costs of the application in question.

16. For present purposes Coomera relies on the material part of submissions which it filed on 17 September 2012 in support of an application for costs of and incidental to the proceedings as a whole, and further particulars.

17. I am satisfied that Coomera’s particularised claim in the amount of $688.60 for costs of and incidental to the application made by it on 16 August 2012[4] is fair and reasonable, and for the foregoing reasons there will be an order for that amount, on an indemnity basis.

    [4]        See paragraph [12], above.

    ORDER

    1.The Applicant Body Corporate of Tradition Community Title Scheme 32885 shall pay to the Respondent Body Corporate of Coomera Waters Community Titles Scheme 29693 the sum of six hundred and eighty eight dollars and sixty cents ($688.60) by 4pm on Friday 21 June 2013.