Tracey v Olinderidge Pty Ltd & Wagner - [2015] QCAT 7

CITATION:

Tracey v Olinderidge Pty Ltd & Wagner [2015] QCAT 7

PARTIES:	Martha-Lee Tracey (Applicant)
v
Olinderidge Pty Ltd Rodney Wagner (Respondents)

APPLICATION NUMBER:

BDL136-11

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

9 January 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

The Application for miscellaneous matters dated 5 November 2014 is dismissed.

CATCHWORDS:

COSTS – LEGAL REPRESENTATIVE – whether conduct unnecessarily disadvantaged applicant – where Consent Orders made in full and final discharge of the application and included no order as to costs – whether “the proceeding” in section 103 of the Queensland Civil and Administrative Tribunal Act 2009 extends to conduct outside the current proceedings – where alleged conduct included conduct relating to other proceedings – whether conduct “unnecessarily disadvantaged” party – where mere error insufficient to establish unnecessary disadvantage – where failure to serve did not demonstrate bad faith – where late filing and incorrect ground of appeal are disadvantages in usual course of litigation

Queensland Civil and Administrative Tribunal Act 2009 ss 88, 103, 126(1), Schedule 3

Airstrike Industrial Pty Ltd v Robertson & Anor [2014] QCATA 209
Campbell v Kerry M Ryan Pty Ltd [2014] QCATA 58
Clarke & Anor v Foster & Ors [2012] QCATA 252
Crusty Devil Bakehouses Pty Ltd v W.A.W. Developments Pty Ltd [2013] QCAT 159
Deputy Commissioner of Taxation v Levick [1999] FCA 1580
Gardener & Ors v Office of Liquor and Gaming Regulation & Anor [2012] QCAT 62
Hallden Pty Ltd & Ors v Body Corporate For LA Promenade CTS 9770 [2012] QCAT 109
Joanne Baxter and Fifties Food Pty Ltd atf The Ninja Bear Trust t/as Subway Wynnum Central v Subway Realty Pty Ltd & Anor [2013] QCAT 316
Pearce & Anor v Body Corporate for Riparian Plaza Apartments CTS 34655 [2012] QCAT 72
Pierpont v Zanetti & Ors [2012] QCAT 171
Queensland Building Services Authority v Johnston [2011] QCATA 265
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412

APPEARANCES:

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION
What is the Application about?

This has been a protracted and costly dispute for everyone. For almost four years, Martha-Lee Tracey, Olinderidge Pty Ltd and Rodney Wagner have been embroiled in applications (initiating and interlocutory), hearings and appeals.
Commendably, on 24 October 2014 they consented to Orders ‘in full and final discharge of the Application’.[1] The Orders included ‘No order as to costs’.[2]
[1]Decision dated 29 October 2014 at paragraph 3.
[2]Decision dated 29 October 2014 at paragraph 2.
However, Mrs Tracey does not see this ending the issues in dispute. She now wants Craig Hall, the lawyer who formerly represented Olinderidge and Mr Wagner to pay her costs of $46,283.30.

Why does Mrs Tracey say Mr Hall should pay her costs?

Mrs Tracey claims that Mr Hall protracted proceedings…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] QCAT 7
Decision Date: 9 January 2015

CaseChat Overview and Summary

In the matter of Tracey versus Olinderidge Pty Ltd and Wagner, the Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining whether the applicant's legal representative's conduct had unnecessarily disadvantaged the applicant. This decision followed the making of Consent Orders which fully and finally discharged the application, including no specific order as to costs. The tribunal examined whether the term "the proceeding" in section 103 of the Queensland Civil and Administrative Tribunal Act 2009 encompassed conduct outside the current proceedings, specifically where the alleged conduct related to other proceedings. It also considered whether the conduct had "unnecessarily disadvantaged" the party, where a mere error was insufficient to establish such disadvantage, and whether the failure to serve did not demonstrate bad faith. Furthermore, the tribunal assessed whether late filing and an incorrect ground of appeal were disadvantages in the usual course of litigation.

The primary legal issues that the tribunal addressed were whether the conduct of the applicant's legal representative had unnecessarily disadvantaged the applicant, and whether the term "the proceeding" in section 103 of the QCAT Act extended to encompass conduct outside the current proceedings. The tribunal considered whether the conduct, which included alleged errors and failures, constituted bad faith or merely ordinary litigation disadvantages. The tribunal concluded that the conduct, while potentially prejudicial, did not rise to the level of unnecessarily disadvantaging the applicant in a manner that warranted a departure from the usual course of litigation. The tribunal also determined that the term "the proceeding" did not extend to conduct outside the current proceedings.

The tribunal found that the conduct of the applicant's legal representative, while not exemplary, did not necessarily disadvantage the applicant in a manner that warranted a departure from the usual course of litigation. The tribunal rejected the notion that the term "the proceeding" in section 103 of the QCAT Act included conduct outside the current proceedings. The tribunal held that the alleged conduct, which involved errors and failures, did not demonstrate bad faith, and thus did not constitute unnecessary disadvantage. The tribunal dismissed the application for miscellaneous matters, finding no basis for awarding costs against the respondent's legal representative.

Orders

Orders of the court

The Application for miscellaneous matters dated 5 November 2014 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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