Villan v The Body Corporate for the Winston (Cairns) Community Titles Scheme 37263 [No 2]

[2024] QCA 54

SUPREME COURT OF QUEENSLAND

CITATION:

Villan v The Body Corporate for the Winston (Cairns) Community Titles Scheme 37263 [No 2] [2024] QCA 54

PARTIES:

JADE TANNAH VILLAN
(applicant)
v
THE BODY CORPORATE FOR THE WINSTON (CAIRNS) COMMUNITY TITLES SCHEME 37263
(respondent)

FILE NO/S:

Appeal No 11957 of 2023
DC No 1199 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil) – Further Order

ORIGINATING COURT:

District Court at Brisbane – Unreported, 28 August 2023 (Rosengren DCJ)

DELIVERED ON:

12 April 2024

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Bond and Boddice JJA and Fraser AJA

ORDER:

Order that the respondent pay the applicant his costs in the District Court proceedings and in this Court, fixed at $5,946.28.

CATCHWORDS:

PROCEDURE – COSTS – AWARDING COSTS WITH RESPECT TO SEPARATE ISSUES – where summary judgment was awarded against the applicant in the Magistrates Court and was upheld on appeal to the District Court – where this Court granted the applicant leave to appeal, allowed the appeal, ordered that the summary judgment be set aside, and ordered that the respondent pay the applicant’s costs of appeal – where one ground on the application for leave to appeal was resolved in favour of the respondent – where the parties provided further submissions on costs – whether costs should be awarded with respect to separate issues

Uniform Civil Procedure Rules 1999 (Qld), r 759

Speets Investment Pty Ltd v Bencol Pty Ltd (No 2)[2021] QCA 39, cited
Villan v The Body Corporate for The Winston (Cairns) Community Titles Scheme 37263[2024] QCA 31, cited

COUNSEL:

The applicant appeared on his own behalf
C E Taylor for the respondent

SOLICITORS:

The applicant appeared on his own behalf
SLF Lawyers for the respondent

1. THE COURT:  A magistrate granted the respondent’s application for summary judgment against the applicant.  A judge of the District Court ordered a correction of the amount of the summary judgment but otherwise dismissed the applicant’s appeal against the order for summary judgment.  This Court granted the applicant leave to appeal, allowed the appeal, ordered that the summary judgment be set aside, and ordered that the applicant for summary judgment (the respondent in this Court) pay the respondent’s (the applicant in this Court) costs of the application.[1]  In accordance with a direction made by the Court, the parties have made written submissions in respect of the costs of the appeal to the District Court and of the application for leave to appeal in this Court.

   [1][2024] QCA 31.

2. The successful applicant, who represented himself throughout, seeks to recover disbursements totalling $1,099.98 he states he paid in his appeal to the District Court and in his application in this Court, comprising application fees, search and copy fees, postage, printing and photocopying costs, and the cost of process servers.  In addition, the applicant seeks to recover the appeal record book fee he will be liable to pay the registrar if an order for costs is made in his favour; in circumstances in which the applicant suffered financial hardship, the registry prepared the record book for the applicant upon his undertaking to pay the appeal record book fee to the registrar in the event of a successful appeal/application where costs are awarded in the applicant’s favour.

3. Costs incurred in an appeal are in the discretion of the Court but are usually awarded to the successful party.[2]  Upon the basis of the Court’s orders, the applicant is the successful party.  The respondent submits, however, that it is appropriate to award costs with reference to the results upon different issues.  The different issues are submitted to be those arising upon three of the six grounds of the application for leave to appeal.  The Court upheld two grounds, one ground was resolved in favour of the respondent, and the Court did not find it necessary to decide the remaining grounds.  The respondent advances various arguments in support of its contention that the respondent should pay some of the applicant’s costs and the applicant should pay some of the respondent’s costs in this Court and in the District Court: in the District Court the applicant described the ground upon which the respondent succeeded in this Court as “the fundamental basis of my defence in the Magistrates Court”; the applicant relied upon that ground for not paying contributions levied by the respondent and as a complete defence to the respondent’s claim; the other body corporate members have borne an expense as a result of the applicant’s decision; and the statutory purpose of allowing body corporates to recover levies as a debt is to limit or avoid the severe financial hardship a body corporate might experience as a result of non-payment of levies.

   [2]Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39 at [11].

4. In our judgment, this is not an appropriate case for ordering costs with reference to separate issues.  Generally, that approach will not be adopted unless special or exceptional circumstances warrant depriving the successful party of its costs.[3]  The respondent pursued, obtained, and defended a summary judgment in an amount which failed to allow for an apparently viable defence pleaded by the applicant. As the respondent’s counsel acknowledged during argument in this Court, the summary judgment could not be justified unless an issue of statutory construction raised in the respondent’s reply to that defence was resolved in the respondent’s favour.  Yet neither the magistrate nor the judge of the District Court adjudicated upon that issue.  In that way, justice was not seen to be done.  Upon the applicant’s application, this Court resolved the issue of statutory construction in favour of the applicant and held that “[t]he quantification of any overpayment required resolution at a trial” and “that resolution impacted on not only the outstanding levies, but also penalty interest and the recovery costs”.[4]

   [3]Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39 at [13] – [16]; see also Firebird Global Master Fund II Ltd v Republic of Nauru [No 2] (2015) 327 ALR 192; [2015] HCA 53 at [6].

   [4][2024] QCA 31 at [39] (Boddice JA; Bond JA at [1] and Fraser AJA at [43] agreeing in this respect).

5. The costs issue therefore must be resolved upon the footing that to obtain a just result in this phase of the litigation, the applicant was required to appeal to the District Court and thereafter apply for leave to appeal to this Court.  In this situation, the respondent’s arguments for awarding costs with reference to separate issues are not persuasive.  In particular, the statutory purpose described by the respondent, and the inevitable disadvantage body corporate members suffer when one of their number does not pay levies, could not justify bringing an application for summary judgment in the teeth of an apparently viable defence.  Nor do the applicant’s own beliefs about the importance or scope of his defences have any bearing upon the appropriate order in this case.

6. The applicant should be given his costs.  The respondent acknowledges that the applicant may have incurred some expenses.  It does not contend that the applicant did not in fact incur any of the expenses he has identified or that any such expense was not reasonably and properly incurred by him in the prosecution of his proceedings in the District Court or in this Court.  The total amount of costs claimed by the applicant is $5,946.28, being $1,099.98 plus the amount of the appeal record book fee of $4,846.30.[5]

   [5]Uniform Civil Procedure Rules 1999 (Qld), r 759; Uniform Civil Procedure (Fees) Regulation 2019 (Qld), reg 2A(2)(a), sch 1, item 17. See also Acts Interpretation Act 1954 (Qld), s 48B, s 48C; Acts Interpretation (Fee Unit) Regulation 2022 (Qld), reg 2(b).

7. In these circumstances, and where the relatively small amount claimed by the applicant seems reasonable on its face, the appropriate order is that the respondent pay the applicant his costs in the District Court proceedings and in this Court, fixed at $5,946.28.