Toivanen v Body Corporate for Aspect Caloundra
[2013] QCATA 248
•2 September 2013
| CITATION: | Toivanen v Body Corporate for Aspect Caloundra [2013] QCATA 248 |
| PARTIES: | Maikki Toivanen Roderick Thompson (Applicants/Appellants) |
| v | |
| Body Corporate for Aspect Caloundra CTS 35499 (Respondent) |
| APPLICATION NUMBER: | APL140-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon J B Thomas AM QC, Judicial Member P Hanly, Member |
| DELIVERED ON: | 2 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Applicants’/Appellants' costs of QCAT appeal in APL140-12, delivered on 18 April 2013, are fixed at $8,200.17, and reserved for further consideration. 2. Liberty to the Applicants/Appellants to apply to QCAT if so advised for an order that the Respondent body corporate pay such costs to the Applicants/Appellants. |
| CATCHWORDS: | Appeal from adjudicator’s decision; matter remitted to adjudicator for reconsideration and determination of specified matters; s100 Queensland Civil and Administrative Tribunal Act 2009, each party must bear own costs for proceeding unless discretion exercised in the interests of justice; application for costs in this instance premature; preservation of rights re costs; liberty to apply following final determination by adjudicator. |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This is an application against a body corporate for the costs of an appeal against an Adjudicator’s decision.
The applicants are unit owners who brought an application against the body corporate which is still unresolved. Initially an Adjudicator dismissed their application, and they were then successful in an appeal to QCAT against that dismissal. The Appeal Tribunal ordered that the matter be returned to the Adjudicator for reconsideration and determination of specified matters.
The terms of the order are contained in the judgment of this Tribunal in Thompson v Body Corporate for Aspect Caloundra [2013] QCATA 121.
Suffice it to say that a number of arguable issues remain to be determined, and the ultimate merits of the dispute, both factual and legal remain to be pronounced upon.
The applicants’ claims for costs are made in the alternative as either an order for indemnity costs ($13,116.95) or on the standard basis ($8,200.17).
Section 100 of the QCAT Act provides:
100 Each party usually bears own costs
Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.
Section 102 gives the Tribunal a discretion to order costs “if the Tribunal considers the interests of justice require it to make the order”. Some factors relevant to the exercise of the discretion are mentioned in section 102(3).
We respectfully agree with the comments of Wilson J in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 and McEwen v Barker Builders Pty Ltd [2010] QCATA 49. In the latter case His Honour stated:
“The language of section 100 plainly indicates that the legislature has turned its face against awards of costs in this Tribunal. A question that will usually arise in each case in which costs are sought is, then, whether circumstances relevant to the discretion inherent in the phrase “in interests of justice” have arisen; and, whether or not they point to a costs award in a sufficiently compelling way to overcome the statutory hurdle.”
The applicants' solicitors have submitted that the dispute was “complex and novel”. This is true, but the same may be said of many matters that emerge under the complex system provided under the Body Corporate and Community Management Act 1997 as amended (BCCM Act). Multifarious difficult disputes continue to emerge in this area, both commercial and personal.
Both parties had legal representation in preparing submissions for the subject appeal. This was not surprising, having regard to the difficulties involved, although we note the body corporate did not obtain legal representation until the appeal was brought from the Adjudicator’s decision, and very limited submissions were made on the body corporate’s behalf.
The submissions of the applicants’ solicitors were very helpful in the determination of the appeal, and in our reasons for judgment we commented on the limited nature of the respondent’s submissions. This is relied on by the applicants as a factor that might persuade us to order the respondent to pay the costs of the appeal. However the applicants obtained the benefit of success in the appeal, and, although the relative degrees of assistance provided to the Tribunal may be a relevant consideration, it is not necessarily a sufficient factor to justify an award of costs in this jurisdiction.
It was submitted that the conduct of the body corporate in relation to the applicants' attempt at conciliation of the matter was unsatisfactory, but we do not think the applicants were substantially disadvantaged or that there is any substance in the submission of “unnecessary disadvantage”.
There is nothing in the enabling act[1] which runs counter to the prima facie situation declared by section 100 of the QCAT Act. Indeed s 294(3) of the BCCM Act refers to the power of the QCAT Appeal Tribunal to award costs in matters of this kind, and leaves untouched that power and the manner of its exercise.
[1] The Body Corporate and Community Management Act 1997 ("the BCCM Act").
The body corporate submitted that the application for costs is premature as no final decision has been made by the Adjudicator, and that in any event no order should be made until at least the final outcome of the decision of the Adjudicator is known. On the other hand the applicants point out that they have been “wholly successful in an appeal that the respondent resisted.”
In our view something more than the lack of merit evidenced in the outcome of the appeal would be necessary to require an order for costs of the appeal to be made at this stage. It is quite possible that the further conduct of this litigation will cast more light upon the question whether it will eventually be in the interest of justice to award these costs to the applicants.
In our view there is no viable argument in favour of indemnity costs. The circumstances to date do not approach those necessary for such an order.
In all the circumstances we consider that the appropriate course will be to preserve the applicants’ costs of the appeal, fixed at $8,200.17, and reserve a right to the applicants, if they are so advised in due course, to reapply for an order for their payment.
As we think it doubtful that an Adjudicator has the power to make an order for such costs under the "just and equitable" power given by section 276 of the BCCM Act, we will grant liberty to the applicants to apply to QCAT (not necessarily to the Tribunal as at present constituted) for the payment of such costs in the light of further developments, if so advised.
In our view the present application is premature, although the right should be preserved for such an application to be made in due course if future events justify it. In view of its prematurity, we consider that the costs of this present application for costs should not be the subject of any subsequent claim against the body corporate.
Order
The Applicants’/Appellants' costs of QCAT appeal in APL140-12, delivered on 18 April 2013, are fixed at $8,200.17, and reserved for further consideration.
Liberty to the Applicants/Appellants to apply to QCAT if so advised for an order that the Respondent body corporate pay such costs to the Applicants/Appellants.
3
3
0