Toivanen v Body Corporate for Aspect Caloundra CTS 35499
[2014] QCATA 283
•29 September 2014
| CITATION: | Toivanen & Anor v Body Corporate for Aspect Caloundra CTS 35499 [2014] QCATA 283 |
| PARTIES: | Maikki Toivanen Roderick Thompson (Applicant/Appellant) |
| 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 Member Hanly |
| DELIVERED ON: | 29 September 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. It is ordered that: a. the respondent body corporate pay the appellants' costs of the appeal, fixed at $8217.17; and b. the respondent body corporate pay the appellants' costs of this application, fixed at $825. |
| CATCHWORDS: | COSTS – APPEALS – COMMUNITY TITLES SCHEMES – circumstances in which respondent body corporate ordered to pay costs of an appeal Thompson v Body Corporate for Aspect Caloundra [2013] QCATA 121 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Toivanen and Mr Thompson represented by Hynes Legal, solicitors |
| RESPONDENT: | Body Corporate for Aspect Caloundra CTS 35499 represented by Success Law, soclitors |
REASONS FOR DECISION
This is an application for the costs of an appeal against a decision of an Adjudicator.
The appellant succeeded in their appeal[1], and then applied for costs. In dealing with that application we considered that the application was arguable, but that it was premature, as it was ‘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’.[2]
[1] Thompson v Body Corporate for Aspect Caloundra [2013] QCATA 121.
[2]Toivanen and Thompson v Body Corporate for Aspect Caloundra [2013] QCATA 248.
The matter then went back to the Adjudicator for redetermination.
The matter was re-determined by the Adjudicator on 21 February 2014 having regard to QCAT’s findings and directions. It involved extensive further submissions by the parties and further investigations by the Adjudicator following up the points raised by the parties.
The grant of the relief sought by the appellants appears to have been strenuously resisted by both the Body Corporate and the ‘affected person (Knox Avenue Retail Pty Ltd) (‘KAR’)’.
The outcome was a vindication of the claims originally brought. It included determination that the resolution of the Body Corporate’s committee of 19 February 2007 was at all times void, and directed that the Body Corporate must decide whether to approve the installation of the exhaust fan. Further directions were given concerning further action to be taken according to whether or not the installation was approved.
The Body Corporate then convened an extraordinary general meeting, and on 8 April 2014 resolved to ratify the installation of the exhaust fan and to grant a licence to KAR for its ongoing use.
The Body Corporate has resisted the present application, contending that the Adjudicator’s further decision was not ‘wholly in favour of the applicants’ and that there is no finding made that the Body Corporate was in breach of its statutory duties.
In our view the appellants were plainly successful in the further proceedings. Nothing emerged to support the validity of the committee’s 2007 resolution, and in the end nothing else emerged, before or since the invalid resolution, that could support the installation of the fan upon Aspect Caloundra’s premises.
During the re-determination by the Adjudicator, the respondents persisted in issues such as whether a right to install the fan existed before the establishment of the scheme, whether such a right arose under the original design and building development approval, whether such a right arose under a building management statement and whether such a right arose after the establishment of the scheme. These were all answered adversely to the submissions of the Body Corporate and KAR. Further, insofar as nuisance was an issue, the appellants were successful.
It is clear, as found by the Adjudicator (in para 19 of his reasons) that the committee resisted the relief sought by the applicants, and that it ‘persisted with misconceived submissions about the building management statement’.
In its present submissions the Body Corporate has pointed out that ‘ultimately the Body Corporate decided to approve the exhaust fan’. The body corporate's own actions following the final order of the adjudicator do not assist its position on the costs of the litigation.
Finally it is pointed out that there has been ‘no finding of a breach of its statutory duties’. As to this, the observations in paras [35], [36] and [50] of our reasons[3] might suggest that such findings were open, though not necessary for the disposition of the litigation. We consider that the Body Corporate’s actions, understandable as they may have been in the light of the problem created from the outset by ‘the affected person’, were less helpful than might have been reasonably expected from a Body Corporate towards lot owners suffering a nuisance that emanated from the common property, and that its actions have necessitated difficult and protracted legal action by the appellants in order to bring some legality to the situation.
[3]See Thompson v Body Corporate for Aspect Caloundra (above, note 1).
Summary of Conclusions
The applicants’ case in the original application for costs was reasonably strong. We pointed out that the submissions of the applicants’ solicitors had been very helpful in the determination of the appeal, while the submissions on behalf of the Body Corporate had been very limited. However, we declined to make an order for costs at that stage in case it might turn out that the merits of the litigation lay after all with the Body Corporate or KAR, and that it was ‘quite possible that the further conduct of this litigation will cast more light upon the question whether it will eventually be in the interests of justice to award these costs to the applicants’.
The result has plainly been that the merits of the dispute at all times really lay with the appellants; that KAR had no right to discharge the fan on the common property of Aspect Caloundra; that the Body Corporate should not have tolerated such a situation; that its attitude made litigation necessary, and that it persisted in its erroneous stand through several phases of litigation.
The Body Corporate has now belatedly corrected the earlier mistakes by making a special legal arrangement with KAR.
Overall the merits of the litigation lay with the appellants, and their efforts have been persistently and continually opposed by the Body Corporate in legal proceedings.
Reference was made in our decision on the initial application for costs[4] to the principles governing awards of costs by QCAT, and it is unnecessary to restate them. Suffice it to say that the circumstances of the present matter are sufficiently compelling to justify the making of the orders sought.
[4]See note 2 above.
The level of costs in both sums awarded appears modest. There has been no suggestion that the quantum is unreasonable.
In our view it is in the interests of justice that they be awarded the costs of their appeal and also the additional costs of this further application fixed at $825.
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