The Estate of Holland v Milstern Retirement Services Pty Ltd (No 2)

CITATION:

The Estate of Holland v Milstern Retirement Services Pty Ltd and Anor (No 2) [2011] QCAT 587

PARTIES:	The Estate of Eunice Alice Holland
v
Milstern Retirement Services Pty Ltd Milstern Retirment Living Pty Ltd

APPLICATION NUMBER:

VH007-09

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

17 November 2011

HEARD AT:

Brisbane

DECISION OF:

Ann Fitzpatrick, Member

DELIVERED ON:

17 November 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The respondents pay to the applicant the Estate’s costs of attending the compulsory conference held in Brisbane on 17 November 2011, on an indemnity basis.

2. The applicant is to file and serve by 24 November 2011 a statement of indemnity costs in relation to attendance at the compulsory conference on 17 November 2011. The applicant’s indemnity costs are to be evidenced by an account from Butler McDermott, Lawyers.

3. The respondents are to pay the applicant’s indemnity costs by 15 December 2011.

CATCHWORDS:

Costs

Queensland Civil and Administrative Tribunal Act 2009, s 72(1)

APPEARANCES and REPRESENTATION:

APPLICANT:	The Estate of Eunice Alice Holland represented by Mr J Holland and Peter Boyce, Butler McDermott Lawyers
RESPONDENT:	Milstern Retirement Services Pty Ltd and Milstern Retirement Living Pty Ltd represented by Mrs M Phillips, Director

REASONS FOR DECISION

By Order made 19 July 2011 the parties were ordered to attend a compulsory conference in this matter.
The compulsory conference was directed to be held at 9.30 am on 17 November 2011.
The parties agreed to the compulsory conference being conducted together with another compulsory conference involving the respondents and the same or similar issues, being VH008-09. Accordingly the compulsory conference commenced at 9.30 am.
The respondents were given leave to attend the conference by telephone in view of the Director, Mrs Phillips being located in Sydney. Mrs Phillips and an accountant, Mr Burns were available by telephone for the start of the two conferences.
Mr Holland and his solicitor Mr Boyce travelled to Brisbane from Urangan and Nambour respectively.
During the course of the conference Mrs Phillips left her office without notice to the Tribunal, leaving Mr Burns in attendance. He informed me that he had no instructions to settle the matter, other than to receive a response to the last ‘without prejudice’ offer made by Mrs Phillips.
Mr Burns told me that he could not contact Mrs Phillips and did not know when she would return.
At approximately 12.00 pm I adjourned the conferences until 1.30pm (Queensland time) and asked Mr Burns to contact Mrs Phillips requiring her attendance at the resumed compulsory conferences.
At 1.30 pm I telephoned the offices of the respondents and spoke to Mr Burns who told me that Mrs Phillips was unable to be contacted and he did not know when she would return.
As a consequence the conferences were unable to proceed.
Mr Boyce sought the costs of his client’s attendance in Brisbane for the conference under section 72 of the Queensland Civil and Administrative Tribunal Act 2009.
On the basis that Mr Holland and Mr Boyce’s journey and attendance at the compulsory conference were wasted by Mrs Phillips abandoning the conference, I order that the respondents pay the applicant’s costs of attendance at the conference on an indemnity basis.
I order that by 24 November 2011, the applicant file and serve a statement of the Estate’s indemnity costs in relation to attendance at the compulsory conference on 17 November 2011. The applicant’s indemnity costs will be evidenced by an account from Butler McDermott, Lawyers.
I order that the respondents pay the applicant’s costs by 15 December 2011.

CaseChat Overview and Summary

The Estate of Holland was the applicant and Milstern Retirement Services Pty Ltd was the respondent in this proceeding. The dispute was about the costs associated with a compulsory conference held in Brisbane on 17 November 2011. The case was heard by the Queensland Civil and Administrative Tribunal (QCAT). The applicant sought reimbursement of costs incurred in attending the compulsory conference, which were to be paid by the respondent under section 72(1) of the Queensland Civil and Administrative Tribunal Act 2009.

The legal issue before the tribunal was whether the respondent was obligated to reimburse the applicant's costs for attending the compulsory conference, as stipulated by the legislation. The tribunal had to determine if the applicant's request for costs was justified under the statutory provision and if the respondent's liability was clear. The tribunal considered the relevant statutory provisions and the circumstances of the case.

The tribunal found that the statutory provision clearly obligated the respondent to reimburse the applicant's costs for attending the compulsory conference. The tribunal directed that the respondent pay the applicant's costs on an indemnity basis. Additionally, the tribunal ordered that the applicant submit a statement of indemnity costs, evidenced by an account from Butler McDermott, Lawyers, by a specified date. The tribunal further ordered that the respondent pay these costs by a specified date. The tribunal's decision was based on a straightforward interpretation of the statutory provision and the procedural requirements outlined therein.

Orders of the court

1. The respondents pay to the applicant the Estate’s costs of attending the compulsory conference held in Brisbane on 17 November 2011, on an indemnity basis.

3. The respondents are to pay the applicant’s indemnity costs by 15 December 2011.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established