Williams v Body Corporate for Circle on Cavill CTS 39918

[2013] QCATA 39

CITATION: Williams v Body Corporate for Circle on Cavill CTS 39918 [2013] QCATA 39

PARTIES:	Cheryl Williams (Applicant/Appellant)
v
Body Corporate for Circle on Cavill CTS 39918 (Respondent)

APPLICATION NUMBER: APL046-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Kenneth Barlow SC, Member
Patricia Hanly, Member

DELIVERED ON: 21 February 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The appellant pay to the respondent the sum of $17,847 in respect of the respondent’s costs of this appeal.

CATCHWORDS:

PROCEDURE – COSTS – DISCRETION TO ORDER COSTS – whether in the interests of justice to order costs of appeal

Queensland Civil and Administrative Tribunal Act 2009, ss 32, 100, 102

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

Kenneth Barlow SC, Member

Introduction

1. On 3 September 2012, the Tribunal gave its decision in this appeal.[1] The respondent body corporate now seeks an order, pursuant to section 102 of the QCAT Act, that the appellant, Ms Williams, pay the respondent’s costs of the appeal on the indemnity basis. The total of the costs claimed appears to be in excess of $23,000, though the final figure claimed is not clear.[2]

   [1]        Williams v Body Corporate for Circle on Cavill [2012] QCATA 166.

   [2]I say “appears to be” because the respondent has not provided a summary or total of the costs claimed, even though the submissions on which it relied on the question of costs comprised more than double the number of pages which the Tribunal directed that they be, and it relies on an estimate of the costs of the hearing of the appeal, rather than the actual costs.

Parties’ submissions

1. The body corporate submits, in essence, that Ms Williams should pay its costs of the appeal because:

   a)    the appeal was largely conducted in a disorganised fashion;

   b)    Ms Williams made a large number of scandalous and irrelevant allegations about members of the committee of the body corporate and raised new and irrelevant allegations about other owners;

   c)    much of the submissions and material relied on by Ms Williams is difficult, if not impossible, to understand;

   d)    this appeal, and the application from which it is brought, are two of many applications brought by Ms Williams, each of which has caused the body corporate to expend large amounts in administrative and legal costs;

   e)    the body corporate twice offered to appoint Ms Williams’ nominee, Mr Urquhart, as a member of the committee, which offers were refused or ignored. They would have rendered the application below, and this appeal, otiose and unnecessary.

2. On 30 August 2012, the Tribunal heard an application by Ms Williams for the Tribunal to disqualify itself from deciding the appeal on the ground of actual or apprehended bias. That application was dismissed. The body corporate has also sought an order that Ms Williams pay the costs incurred by it in engaging counsel to appear at that application. It does not claim the costs of its solicitors involved in that application.

3. The body corporate relied substantially on the decision of the President in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments(No. 2) [2010] QCAT 412, particularly at paragraphs [58] to [63]. The body corporate contends not only that those paragraphs set out the relevant principles, but also that Ms Williams’ appeal was conducted in a similar manner and with similar failings as in that case.

4. Ms Williams opposes the application, submitting that the question of who pays the costs should be decided by the body corporate’s members in general meeting, or be left for determination by the adjudicator, to whom issues arising in the application were remitted for a fresh decision. In her submissions, she also repeated some of the allegations against the committee of the body corporate, citing them as reasons why the Tribunal should not order that she pay any costs, or should even order that the committee members pay those costs.

Consideration

1. The starting point for consideration of an application for costs is s 100 of the QCAT Act, which is in terms that plainly indicate that the legislature has turned its face against awards of costs in this Tribunal. However, the presumption that each party must bear its own costs may be displaced if the Tribunal considers that the interests of justice require it to make an order for costs: s 102(1). The phrase “in the interests of justice” is not defined in the Act, but is to be construed according to its ordinary and plain meaning, which obviously confers a broad discretionary power on the decision maker.[3] The question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase “the interests of justice” point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.[4]

   [3]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 at [4], citing Herron v The Attorney General for New South Wales (1987) 8 NSWLR 601 at 613.

   [4]        Ralacom v Paradise Island Apartments (No. 2) at [29].

2. I accept that the principles enunciated by the President in Ralacom are applicable to the question in this appeal.

3. As is evident from my reasons in the substantive appeal (my “principal reasons”), much of the material filed, and the submissions made, on behalf of Ms Williams was confusing, poorly organised, difficult to understand and irrelevant. Ms Williams’ representative at the hearing of the appeal, Mr Urquhart, was unable to direct the Tribunal’s attention to any substantive evidence in support of the allegations that had been made before the adjudicator. The reason he gave was surprising: that he had not kept, and therefore did not have, a copy of the material that was submitted to the adjudicator on behalf of Ms Williams. I do not understand how he and Ms Williams thought they could conduct an application, much less an appeal, without keeping copies of the material that they submitted to the decision makers.

4. As is also clear from my principal reasons, 8 of the 9 grounds of appeal listed by Ms Williams in her notice of appeal were incomprehensible or beyond the powers of the Tribunal. A large part of her written submissions appeared to be directed to many of those grounds.

5. Also, the bulk of the material that was before the adjudicator (and which this Tribunal had to take into account) and the submissions before the Tribunal addressed irrelevant matters or were difficult or impossible to understand.

6. I therefore accept the body corporate’s submissions referred to in paragraphs [2]a) to [2]c) above.

7. I do not consider that the offers to appoint Mr Urquhart to the committee are relevant to whether Ms Williams ought pay the body corporate’s costs of the appeal, except in one respect referred to in paragraph [17]b) below. For the reasons set out in paragraph [52] of my principal reasons, I consider that it was reasonable for Ms Williams to seek the orders about Mr Urquhart’s eligibility to be a member of the committee.

8. Nor do I consider that the fact that Ms Williams has made a number of applications for adjudication is relevant to the costs of this appeal. In considering the application for costs, it is only appropriate to take into account the conduct of this appeal. I cannot form any judgment about any other applications, each of which can (and should) be considered in its own right.

9. Finally, it is not appropriate to leave the question of who should pay the body corporate’s costs of this appeal to the body corporate in general meeting, or to the adjudicator. The body corporate in general meeting is unlikely to have the power to decide anything about the costs. The body corporate is presumably liable to pay to its solicitors the costs it has incurred in this appeal. It will only be entitled to recover those costs from Ms Williams if this Tribunal makes such an order. Nor can or should the adjudicator determine costs incurred in a proceeding in this Tribunal: only the Tribunal can do that.

10. In making its submissions in support of an order for costs in its favour, the respondent has taken no account of the results, and the parties’ respective degrees of success, in the appeal.

11. As I said in paragraph [16] of my principal reasons, there were essentially 4 real issues raised in the appeal. Ms Williams succeeded on 2 of those issues and the body corporate succeeded on the other 2. The degree of success of the parties on the issues raised in the appeal is clearly a relevant consideration. Given that Ms Williams succeeded on 2 of the 4 issues, it would not be appropriate to order that she pay all of the body corporate’s costs of the appeal.

12. In considering whether the Tribunal should order that Ms Williams pay any part of the body corporate’s costs of the appeal, I have taken into account the following factors:

    a)    Ms Williams succeeded on 2 of the 4 real issues, despite the body corporate’s strong opposition;

    b)    the body corporate refused to concede that Mr Urquhart was Ms Williams’ spouse and was not engaged in a letting business, despite having offered to appoint him to the committee (apparently on the basis that he was not in fact disqualified from being a member) – a refusal which I consider to have been wholly unreasonable (having regard to the apparent basis of the offers) and which has necessitated referring the matter back to the adjudicator to determine those facts;

    c)    a large part of the material and submissions put before the Tribunal on behalf of Ms Williams was irrelevant to the issues and orders which the Tribunal could consider;

    d)    most of that material was directed to the issues on which Ms Williams did not succeed;

    e)    it ought to have been obvious to a reasonable appellant that her case in those respects in which she failed could not succeed; and

    f)     it ought also to have been obvious that the application for the Tribunal to disqualify itself from making a decision could not succeed.

13. The costs claimed are on the indemnity basis. Because of the matters referred to in paragraphs [17]c) to [17]f), I consider that, on the issues on which Ms Williams failed, it is appropriate in the interests of justice to order that she pay the body corporate’s costs, and on the indemnity basis. However, it is difficult to determine how much of the costs claimed relate to those issues. The Tribunal must make its best estimate, having regard to the need to conduct proceedings fairly but cost effectively and to the evidence that is before it.

14. The costs claimed by the body corporate are referred to in two affidavits sworn by its solicitor, Mr Hunt. The identified costs total $23,020.25, comprising:

    a)    solicitors’ fees: $12,295.25;

    b)    counsel’s fees for the appeal up to April 2012: $4,950.00; and

    c)    counsel’s fees relating to the application heard on 30 August 2012: $5,775.

15. In an affidavit sworn on 8 June 2012, Mr Hunt also estimated the further costs that would be involved in preparation for and attending the hearing of the appeal. However, since the appeal was heard, the body corporate has not filed any further affidavit as to the actual costs incurred. I do not consider it appropriate to rely on the estimate and therefore I do not allow anything for those costs, but I do note that it is likely that a substantial additional sum was incurred in those matters.

Orders

1. I therefore consider that the appropriate order is that Ms Williams pay the respondent’s costs of the appeal in the sum of $17,847.00, comprising 70% of the identified costs incurred up to and including the hearing of the appeal, and 100% of the identified costs of the application heard on 30 August 2012.

Patricia Hanly, Member

1. I have had the advantage of reading in draft the reasons of Mr Barlow and the orders proposed by him. I agree with those orders and his reasons.