21 Broadbeach Blvd Pty Ltd v Body Corporate for Oceana on Broadbeach [2026] QSC 58

SUPREME COURT OF QUEENSLAND CITATION: 21 Broadbeach Blvd Pty Ltd v Body Corporate for Oceana on Broadbeach CTS 24163 [2026] QSC 58 PARTIES: 21 BROADBEACH BLVD PTY LTD ACN 659 981 281 (applicant) v BODY CORPORATE FOR OCEANA ON BROADBEACH COMMUNITY TITLES SCHEME 24163 (respondent) FILE NO: BS1104 of 2025 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 27 March 2026 DELIVERED AT: Brisbane HEARING DATE: 23 March 2026 JUDGE: Muir J ORDERS: 1. The application for review is dismissed. 2. The application for fixed costs is dismissed. 3. The applicant is to pay the respondent’s costs of both applications. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – TAXATION AND OTHER FORMS OF ASSESSMENT– where the costs assessor signed but did not file an initial certificate of costs assessment – where the costs assessor subsequently signed and filed a further certificate purporting to absorb the first – whether a costs assessor is functus officio upon signing a certificate of costs assessment – whether there is power under the UCPR or general law for a costs assessor to issue a corrected or further certificate in respect of the same costs orders – whether the interests of justice warrant the Court fixing costs Uniform Civil Procedure Rules 1999 (Qld), r 687, r 713, r 720, r 734, r 737, r 742 -- 1 of 9 -- 2 Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 Australian Securities and Investments Commission (ASIC) v Atlantic 3 Financial (Aust) Pty Ltd [2008] Qd R 298 Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119 CBI Constructors Pty Ltd v Chevron Australia Pty Ltd (2024) 419 ALR 126 CGA Law Pty Ltd v Diane Lawyers Pty Ltd [2022] QSC 92 Innes v Electoral Commission of Queensland [2022] QSC 122 Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Wentworth v Wentworth (Court of Appeal (N.S.W.), 21 February 1996, unreported) COUNSEL: DD Keane KC, with M Zieball, for the applicant P O’Higgins KC, with B Wacker, for the respondent SOLICITORS: Mills Oakley for the applicant Frigo James Lawyers for the respondent [1] The current dispute between the parties emanates from the applicant’s liability to the respondent for payment of two costs orders made by other judges of this Court in interlocutory proceedings. One, an order for standard costs dated 29 May 2025, and the other an order for indemnity costs dated 8 August 2025. [2] On 13 March 2026, the costs assessor appointed under r 713(2)(a) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) signed and filed a costs assessment certificate assessing the costs payable under both orders at $276,640.69. This certificate was issued after a rather convoluted process which included the costs assessor signing but not filing an earlier certificate on 23 January 2026 assessing costs at $54,426.22. [3] The applicant applies under UCPR r 742 for a review of the costs assessor’s decision to issue the January and March Certificates. This contested application is underpinned by the notion that the costs assessor proceeded upon a wrong principle (Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621) because he had no power to issue two certificates for one assessment. The applicant seeks to have both certificates set aside and the assessment remitted to another costs assessor to carry out the assessment according to law. [4] The issues between the parties raise three alternative cascading questions. [5] First, is the March Certificate a valid certificate? This issue turns on whether the costs assessor was functus officio upon the signing of the January Certificate. [6] Second, can the January Certificate be amended under the slip rule? The resolution of this issue turns on whether the costs assessor’s signing of the January Certificate is a mistake or the consequence of a deliberate decision. -- 2 of 9 -- 3 [7] Third, do the interests of justice warrant this Court fixing costs (in the amount of the March Certificate) as sought in the respondent’s cross application. The resolution of this issue turns on whether the applicant would be denied procedural fairness if such a course was taken. [8] The determination of these issues is informed by an understanding of the uncontroversial facts about the assessment process. How did the costs assessor come to be appointed? [9] On 22 August 2025, the respondent served the applicant with a Cost Statement for the May Cost Order and the August Cost Order. The total of the Cost Statement was $281,983.83 comprising: (a) Items 1 to 138 in the sum of $33,878.02 (standard costs of the May Cost Order); and (b) Items 139 to 659 in the sum of $248,105.81 (indemnity basis of the August Cost Order). [10] On 12 September 2025, the applicant delivered a notice of objection conceding costs of $151,685.76 but challenging the balance. Leaving a contested sum of about $130,000. [11] On 20 October 2025, a registrar of the Supreme Court appointed Edward Skuse as the costs assessor to assess the respondent’s costs arising from both orders. How did the costs assessor go about his assessment? [12] On 17 December 2025, the costs assessor issued a direction to the respondent to update its costs to reflect the actual as opposed to anticipated costs of the assessment. The respondent did so on 18 December 2025, leaving the total costs claimed at $298,136.28. [13] On 19 December 2025, the costs assessor directed the applicant to file any notice of objection to the supplementary Costs Statement by 9 January 2026. By these further objections dated 8 January 2026, the applicant conceded a further $6,903.31. This left the total amount conceded by the applicant as owing under both costs orders at $158,589.07. [14] On 23 January 2026, the costs assessor signed the January Certificate, which he sent to the parties on 27 January 2026. This letter also referred to the costs assessor being in the process of filing the certificate with the Supreme Court Registrar (with a copy of a letter to the Registrar to that effect attached). But the letter to the Registrar was either not sent or, if it was, the Registrar was subsequently told to hold off. Whatever happened, it is uncontroversial that the January Certificate was never filed. [15] The January Certificate stated:1 1 Barber affidavit exhibit page 345. -- 3 of 9 -- 4 “1. I am an approved Costs Assessor appointed under the Uniform Civil Procedure Rules 1999. 2. On 20 October 2025 the Registrar appointed me to assess the respondent’s costs payable by the applicant to the respondent pursuant to: (a) Orders 2 and 9 of the Order of Justice Hindman made on 29 May 2025; (b) The Order of Justice Smith made on 8 August 2025. 3. I have assessed the costs payable by the applicant to the respondent in the amount of fifty four thousand, four hundred and twenty six dollars and twenty two cents ($54,426.22) comprising: 3.1 Costs Statement dated 22 August 2025: a. Fees allowed on above Costs Statement $13,627.90 b. Disbursements allowed on above Costs Statement $17,649.44 3.2 Supplementary Costs Statement received 18 December 2025: a. Fees allowed on above Supplementary Costs Statement $16,018.33 b. Disbursements allowed on above Supplementary Costs Statement $10.20 3.3 Assessor’s fees Tax invoice dated 21 January 2026 $7,120.35 4. The total amount payable by the abovenamed applicant is: $54,426.22” [Emphasis added]. [16] Unsurprisingly, given that respondent had claimed costs of almost $300,000 and the applicant had conceded about $160,000 of that sum, the receipt of this certificate resulted in an immediate scurry of activity from both parties. But from different perspectives. [17] About twenty minutes after the January Certificate was received, the applicant’s solicitor spoke to the costs assessor and sent a follow-up letter, requesting that the costs assessor not finalise the certificate before calling for and considering any offers. [18] The solicitors for the respondent also wrote to the costs assessor on 27 January 2026, submitting that an accidental mistake or error had obviously occurred as the certificate did not include the costs the subject of the August Cost Order; and that under UCPR r 720(4) and the “slip rule”, there should be an amended certificate which included the indemnity cost payable. -- 4 of 9 -- 5 [19] On 28 January 2026, the costs assessor wrote to the parties confirming (what both parties must plainly have known), that the January Certificate only assessed the March Costs Order and ought to have only referred to items 1-138. In this letter, the costs assessor described the January Certificate as “provisional” and explained that he was undertaking the costs assessment in two parts with the second part, commencing at item 139, to be the subject of a second assessment with a different file number. The costs assessor expressly stated that his assessment of the Costs Statement was not concluded. He also suspended the now “provisional” January Certificate. [20] The costs assessor then directed the parties to make submissions in relation to the provisional January Certificate. [21] On 29 January 2026, the solicitors for the applicant made submissions disputing that the certificate was “provisional” and asking the costs assessor to call for offers pursuant to UCPR r 734; and requesting that the January Certificate be finalised and sent to the Court for filing. [22] On 3 February 2026, the respondent’s solicitors made submissions to the costs assessor about how he might address their concerns about the lack of assessment of the August Costs Order. Those submissions included that the costs assessment was not yet at an “end” (UCPR r 737(1)), no certificate had been filed (UCPR r 737(2)), offers had been made in respect of the whole of the costs (and not part), and the costs assessor should proceed to assess the remaining items of costs and then consider any offers. [23] On 4 February 2026, the costs assessor wrote to the parties noting (again) that the January Certificate had not been filed and would be absorbed in the final certificate to be issued at the end of the matter. [24] Later on 4 February 2026, the applicant’s solicitors sent a copy of an offer for costs made by it on 16 September 2025 in relation to both cost orders. In doing so, they noted that their client could not have made an offer for a limited portion of the costs statement. The sending of this offer demonstrates the applicant’s persistence in exploiting the mistake made by the costs assessor. The applicant was aware, and had been since 28 January 2026, that the January Certificate was only an assessment of the May Costs Order. By operation of UCPR r 733 (4), this offer ought not have been disclosed to the costs assessor as he had not assessed all items in the costs statement. [25] On 12 February 2026, the applicant’s solicitors wrote to the costs assessor asserting that the costs assessment was completed. [26] On 17 February 2026, the applicant’s solicitors wrote to the costs assessor requesting the costs orders to be finalised and made broad assertions of a denial of procedural fairness to the parties and the possibility of apprehended bias. [27] On 27 February 2026, the applicant’s solicitors wrote to the costs assessor calling for him to finalise his assessment of the costs claimed by the respondent in accordance with the January Certificate. [28] The costs assessor did not do either of these things. Instead, he issued the March Certificate for $276,640.69. -- 5 of 9 -- 6 [29] Turning then to the first issue. Did the costs assessor have the power to issue the March Certificate? [30] The applicant submitted that when the costs assessor signed the January Certificate he concluded his appointed function and therefore, any step he purported to take after that was beyond his power: Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 at 24 (per Kitto J); Innes v Electoral Commission of Queensland [2022] QSC 122 at [96]; CGA Law Pty Ltd v Diane Lawyers Pty Ltd [2022] QSC 92 at [3]. [31] The starting point in considering the applicant’s contention is that the term functus officio is “not a substantive legal doctrine or theory”: CBI Constructors Pty Ltd v Chevron Australia Pty Ltd (2024) 419 ALR 126 at [72]. Rather, it is a conclusion that a person has no power left to exercise or function or duty to perform. Such a conclusion must be justified rather than asserted; CBI Constructors at [72]. [32] Each case turns on its facts. I accept that a costs assessor appointed under the UCPR may become functus officio upon coming to the “end of the assessment”. But I do not accept that any of the cases relied on by the applicant stand for the broad proposition that, in every case, a costs assessor appointed pursuant to the UCPR is functus officio on the mere signing of a costs certificate. [33] Australian Coal and Shale concerned a taxation of costs under the pre-1952 High Court rules – not the UCPR. In Innes, Bradley J (as his Honour then was) stated that the costs assessor appointed under the UCPR was functus officio after signing a certificate and that he had no power to modify it. But in that case, the certificate had been filed and an order made. There was also no issue that the costs assessor had not performed the assessment he had been appointed to undertake. The issue was one of estoppel partly based on an error in the certificate. There was no argument about whether the assessor was functus officio, because it was not essential to the determination of the estoppel argument. In the result, the court accepted that the error in the certificate could be corrected under UCPR r 388. In CGA Law, [at 3] Dalton J (as her Honour then was) was “not sure” the costs assessor had the power to correct a costs certificate, referring to there being no express power in the UCPR; and that the usual position under the “general law” was that once a costs assessor signs a certificate they are functus officio.– But as she did not hear argument on this point, Dalton J refrained from expressing a concluded view. [34] Whether the costs assessor had concluded his “appointed function” requires a careful examination of the particular circumstances of the case – including the nature of that person, powers and appointed function: CBI Constructors at [72]. [35] In this case, the costs assessor’s appointed function (by order of the Registrar dated 20 October 2025) was to carry out an assessment of the respondent’s costs payable by the applicant under the May and August costs orders. [36] The initial approach taken by the costs assessor in carrying out the assessment in two parts is unorthodox and not consistent with the process for assessing costs under the UCPR. It was also inconsistent with the terms of the order of 20 October 2025 – which -- 6 of 9 -- 7 required one assessment of two costs orders. The costs assessor intended to sign the January Certificate as an assessment of the May Costs Order only. Although the monetary quantum of the certificate was consistent with the assessment being only for the May Costs Order, a plain reading of the wording on the face of the certificate erroneously suggested it was an assessment of both. The costs assessor accepted this was an error (on 28 January 2026). The costs assessor also quickly realised the issue with issuing two certificates for one assessment by not filing the January Certificate and proceeding to finish the job for which he was appointed. [37] It was only at the “end of the assessment” that the costs assessor was required to certify the amount or amounts payable in relation to the application for assessment (UCPR r 737). When the January Certificate was signed, the costs assessor had not assessed all costs the subject of the application for assessment, and he had not completed his appointed task. He had therefore not reached the “end of the assessment”. In these circumstances, the January Certificate was not a legally effective decision: Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at [8] and [11]-[15] (Gleeson CJ), [53] (Gaudron and Gummow JJ). The costs assessor was still required to finish his appointed task pursuant to the Registrar’s order. He could not be functus officio with respect to matters with which he had not dealt with in the January Certificate: CB1 Constructors at [28] (Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ) [38] The other factor that supports a finding that the costs assessor had not completed his appointed function is that he had not considered any offers, as required by UCPR r 733(4). This is not surprising, as under this rule, any offers could not be considered until the costs assessor had assessed all items in the costs statement. Which of course he had not done at the time he signed the January Certificate. [39] On the present facts, I am therefore satisfied that the costs assessor was not functus officio on signing the January Certificate. I find that he had the power to sign and file the March Certificate. There is no basis to set this certificate aside. [40] Given this conclusion, it unnecessary for me to consider the second issue. But in case I am wrong, it is necessary to briefly address the third issue – the respondent’s cross application to fix costs. Is this a case for the fixing of costs? [41] The respondent submitted that if the March Certificate is set aside, the Court should make an order fixing costs under UCPR rr 687(2)(c) or 742(6)(e) in the sum of the March Certificate. Despite such a course being opposed by the applicant (to the review), I am satisfied that an order fixing costs in the sum $276,640.69 under UCPR r 742(6)(e) is appropriate for seven reasons. [42] First, the applicant and respondent have been engaged in extensive, ongoing litigation in this Court. There are presently six costs orders in favour of the respondent which are variously being assessed or reassessed but are not yet paid by the applicant. The costs claimed in those assessments total $386,674. The respondent has incurred approximately $1 million in legal fees as a result of disputes with the applicant, including in this proceeding. The respondent’s submission on the setting aside of the -- 7 of 9 -- 8 March Certificate is that a new assessor should be appointed to reconsider the Costs Statement and objections provided by the parties in the earlier assessment. I do not see the necessity in that process having to occur again - it would serve no purpose other than to cause, delay, trouble, expense and the further aggravation arising from a further assessment to the respondent: Beach Petroleum N.L. v Johnson (No. 2) (1995) 57 FCR 119. [43] Second, the power to order fixed costs should be exercised only when the Court considers that it can do so fairly between the parties, and that includes sufficient evidence in arriving at an appropriate sum on the materials available: Wentworth v Wentworth (Court of Appeal (N.S.W.), 21 February 1996, unreported) per Clarke J.A, followed by Mullins J (as her Honour then was) in Australian Securities and Investments Commission (ASIC) v Atlantic 3 Financial (Aust) Pty Ltd [2008] Qd R 298. There is plainly sufficient evidence before this Court in the form of a cost statement, objections and an assessment by the costs assessor who has issued a costs certificate. [44] Third, the applicant did not challenge any substantive aspect of the assessment contained in the March Certificate. Rather, it chose to take a technical point as it was entitled to do. The issues raised on the review focussed on the costs assessor’s signing of the January Certificate and did not attack the quantum of the assessment contained in the March Certificate (except on the issue of bias which is dealt with in the fifth point below) in any cogent way. The lack of challenge to quantum is perhaps not too surprising given that the August Cost Order was one made on the indemnity basis. [45] Fourth, the applicant did not take any steps to review the January Certificate or seek directions prior to the issue of the March Certificate. Instead, it waited for the outcome of the further assessment, which it knew the assessor was undertaking, before seeking review of the March Certificate. [46] Fifth, I am not satisfied that fixing costs would result in the applicant not being afforded sufficient procedural fairness. It had its opportunity to make objections to the Cost Statement and it did so. The applicant brought the review on a confined basis. If it wished to challenge the quantum of the March Certificate it could have done so. But it did not. [47] Sixth, I do not accept the applicant’s contention that the costs assessor was impartial in his assessment of costs because by the time of the March Certificate he had a copy of the September 2025 offer. Apart from a general assertion about this, there is no specific correlation to the costs assessor acceptance of some of the costs that were objected to. Remembering again, that this part of the assessment was for costs on the indemnity basis. It also cannot be overlooked that it was the applicant who persisted in maintaining that the January Certificate should be filed as an assessment of both costs orders; and who sent the September 2025 offer to the costs assessor. Knowing that UCPR r 733(4) expressly provided that offers must not be disclosed until all items in the Costs Statement had been assessed. The applicant clearly sought to take advantage of the obvious mistake the costs assessor made in signing the certificate. Having made the tactical decision to send the offer it cannot now seek to hold that against the costs assessor - or, as was suggested at one point - this Court. -- 8 of 9 -- 9 [48] Seventh, the fixing of costs is in the interest of justice and is a logical fair and reasonable outcome. Orders [49] I therefore order that: 1. The application for review is dismissed. 2. The application for fixed costs is dismissed. 3. The applicant is to pay the respondent’s costs of both applications.2 2 The respondent sought costs of the application for review on the indemnity basis but after hearing argument I determined the standard basis to be the appropriate award. -- 9 of 9 --