Vasco Pty Ltd v Propurpose Pty Ltd
[2010] QCAT 169
•1 April 2010
| CITATION: | Vasco Pty Ltd v Propurpose Pty Ltd [2010] QCAT 169 |
| PARTIES: | Vasco Pty Ltd |
| V | |
| Propurpose Pty Ltd |
| APPLICATION NUMBER: | RET036-09 |
| MATTER TYPE: | Retail shop leases matters |
| HEARING DATE: | Decision on the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe |
| DELIVERED ON: | 1 April 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Application for costs dismissed |
| CATCHWORDS : | Costs – sections 100, 103 Queensland Civil and Administrative Tribunal Act – interests of justice – unnecessarily disadvantages – financial circumstances |
APPEARANCES and REPRESENTATION (if any):
Decision on the papers
REASONS FOR DECISION
Vasco Pty Ltd (“Vasco”), the lessor, says that Propurpose Pty Ltd (“Propurpose”), the lessee, should pay its costs of Propurpose’s application to this tribunal disputing an independent rent review. It is necessary to set out the history of the proceeding.
a)By letter of 24 July 2009, the Retail Shop Leases Tribunal registrar appointed a specialist retail valuer to determine the “current market rent” of the subject premises.
b)The expert delivered a determination on 29 September 2009. Vasco lodged a notice of dispute in the tribunal by letter dated 2 October 2009.
c)The registrar issued a notice of mediation dated 16 October 2009, listing the dispute for mediation on 6 November 2009.
d)Vasco attended mediation, Propurpose did not. The dispute was referred to the tribunal for determination.
e)The tribunal issued a notice of directions hearing dated 20 January 2010, advising that the dispute was listed for a directions hearing on 12 February 2010.
f)By facsimile dated 8 February 2010, Vasco advised that it wanted to withdraw its notice of dispute.
g)At the directions hearing, Propurpose made an application for costs.
Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”) provides that, other than as provided under the Act or an enabling Act, each party to a proceeding must bear the party’s own costs.
Section 102(1) of the QCAT Act enables the tribunal to make an order for costs if it considers the interests of justice require it.
Section 102(3) of the QCAT Act sets out the matters to which the tribunal may have regard when deciding whether to award costs.
Propurpose says that the interests of justice require a costs order because:
a)Vasco lodged the dispute when there was no dispute between it and Propurpose.
b)The tribunal never had jurisdiction to hear the dispute.
c)Vasco sought relief that the Tribunal could not give.
d)Vasco led Propurpose to believe that it was engaging lawyers.
As to the specific factors in section 102(3), Propurpose says:
a)The factors identified above also mean that Vasco was acting in a way that unnecessarily disadvantaged Propurpose.
b)Vasco’s claims were weak and of little merit.
c)The nature and complexity of the dispute justified legal advice.
d)Vasco lodged the dispute knowing that Propurpose was in a weaker financial position.
Vasco says that each party should bear its own costs:
a)It did not act in a way that unnecessarily disadvantaged Propurpose; it simply followed the procedure of the tribunals.
b)It was entitled to file the notice of dispute.
c)Propurpose failed to attend mediation. Vasco admits that Propurpose was not obliged to attend mediation but contends that mediation may well have resolved the dispute.
d)Propurpose has not been unnecessarily disadvantaged.
e)The notice of dispute was withdrawn for commercial reasons. That decision is not determinative of the relative strengths of the parties’ claims.
f)The dispute was not complex.
g)The financial circumstances of the parties is not relevant.
This was a dispute between two commercial entities. It is not suggested that either party was impecunious, the proceeding had caused either party financial hardship or that the financial position of either party made it more difficult to conduct the proceeding. The financial circumstances of the parties is not a reason for an order for costs.
Propurpose says that Vasco’s notice of dispute was completely without merit and that the tribunal had no jurisdiction to entertain it. Although the relief sought by Vasco was an adjustment of the rent, the points of claim identified a dispute about the methodology. I am not prepared to determine that Vasco’s claim was completely without merit. The relative strengths of the parties’ claims are not so disparate that one party is entitled to a costs order.
10.The proceeding centred around the interpretation of market rental. The issues canvassed by the expert valuer seem to be limited in compass. I do not consider that the nature and complexity of the dispute warranted an order for costs. That a party considered the issues sufficiently complex to warrant legal advice is not, in itself, a reason to order costs.
11.I do not consider that the failure to give notice of the dispute, or the notice of intention to engage legal representation when none, in fact, was retained, constitutes an unnecessary disadvantage. In fact, I cannot see that Propurpose suffered any real disadvantage, other than it had to consider the claim once it was filed in the tribunal, rather than at an earlier date.
12.The “interests of justice” must be considered within the context of the tribunal’s wider remit. The tribunal is to deal with matters in a way that is fair, just economical, informal and quick. The object has been achieved here, even though Propurpose declined to attend mediation.
13.This is not a case like Tamawood Homes –v- Paans[1] where the benefit of the tribunal proceedings is eroded by the costs involved in pursuing it. The interests of justice do not require a costs order.
[1] [2005] QCA 111
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