Venga Pty Ltd trading as San Churro v YFG Shopping Centres Pty Ltd

Venga Pty Ltd trading as San Churro and Aleth Pty Ltd as trustee for the Crowe Family Trust (the applicants) brought an action against YFG Shopping Centres Pty Ltd (the respondent) in the Queensland Civil and Administrative Tribunal. The applicants sought to recover damages for loss of profits, costs of repairs, and interest, arising from a dispute over a retail lease agreement. The matter proceeded to a final hearing, but the applicants withdrew their application immediately before the hearing. The respondent applied for an order for costs on an indemnity basis, arguing that the applicants had acted in a way that had unnecessarily disadvantaged the respondent.

The main legal issue before the Tribunal was whether the applicants should be ordered to pay the respondent's costs on an indemnity basis. The applicants conceded that the respondent was entitled to its costs of preparing for the hearing on a standard basis, but they argued that the respondent was not entitled to indemnity costs. The applicants also argued that it was not in the interests of justice for the Tribunal to order them to pay the respondent's costs of the dispute resolution processes, including the compulsory conferences, the application for costs filed on 23 August 2019, and retaining senior counsel. The applicants submitted that because of the poor financial position of the second applicant, it should not be made the subject of any order for costs.

The Tribunal considered the relevant provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and found that it had the discretion to award costs if it considered it in the interests of justice to do so. The Tribunal found that the applicants' late withdrawal of the proceeding unnecessarily disadvantaged the respondent and that the proceeding involved some complex factual and legal issues. The Tribunal also found that the applicants' claims were relatively weak, as acknowledged by their stated reason for withdrawing the claims before the hearing. The Tribunal did not think it was in the interests of justice for the applicants to pay the respondent's costs of the dispute resolution processes, including the compulsory conferences, the application for costs, and retaining senior counsel. However, the Tribunal found that the applicants should pay the respondent's costs of the proceeding on a standard basis.

The Tribunal ordered that the applicants pay the respondent's costs of the proceeding fixed in the sum of $61,115.13 by 14 May 2020. The Tribunal did not order the applicants to pay any other costs of the dispute resolution processes. The Tribunal considered that it was in the interests of justice for the respondent to be awarded costs on a standard basis, but that it was not in the interests of justice for the applicants to pay any other costs.