Consolidated Gold Coast Holdings Pty Ltd v Body Corporate for Kirrikilli Heights [2024] QCATA 42

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Consolidated Gold Coast Holdings Pty Ltd v Body Corporate for Kirrikilli Heights CTS 37540 [2024] QCATA 42 PARTIES: CONSOLIDATED GOLD COAST HOLDINGS PTY LTD (appellant) v BODY CORPORATE FOR KIRRIKILLI HEIGHTS CTS 37540 (respondent) APPLICATION NO/S: APL002-22 ORIGINATING APPLICATION NO/S: 0288-2021 MATTER TYPE: Appeals DELIVERED ON: 5 April 2024 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Fitzpatrick ORDERS: The respondent is awarded costs of the appeal proceeding. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – DISCONTINUANCE OF OR WITHDRAWAL FROM PROCEEDING – where appellant withdrew appeal prior to final hearing – where all parties had filed submissions in the appeal and appeal books – whether parties should bear their own costs in the appeal – whether the respondent was disadvantaged by the conduct of the appellant in the appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 107 Body Corporate and Community Management Act 1997 (Qld) s 289 Barnett & Anor v Pirrone & Anor [2019] QCATA 166 Campbell v Queensland Building and Construction Commission [2021] QCATA 34 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Cowen v Queensland Building and Construction Commission [2021] QCATA 103 -- 1 of 4 -- 2 CH v Queensland Police Service [2021] QCATA 137 Holgar v The Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading & Ors (Costs) [2023] QCAT 408 Pound v Queensland Building and Construction Commission [2023] QCAT 298 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] The respondent Body Corporate for Kirribilli Heights CTS 37540 seeks its costs of the appeal proceedings following withdrawal of the appeal by the applicant Consolidated Gold Coast Holdings Pty Ltd prior to the date of hearing. [2] I award costs of the proceeding to the respondent on a standard basis fixed in an amount of $10,280.65.1 I accept the submissions of the respondent as to the costs incurred by it in responding to the appeal application and preparing for hearing of the appeal. I consider the amount of the costs incurred to be fair and reasonable. The amount awarded involves a 30% discount from the full solicitor client costs to arrive at costs on a standard basis. [3] In arriving at this conclusion I have had regard to the invoices filed in the Tribunal under cover of a letter dated 7 February 2024, which have been in response to the complaint of the applicant that no detailed breakdown of the claimed costs had been provided. The applicant has corresponded with the Tribunal indicating it will not address the material because it was not directed to be filed and because it would likely be a waste of the applicant’s costs. That is a matter for the applicant, but I note that if it had wished to make submissions on the invoices it could have done so in its correspondence, given that it noted their relevance. I have had reference to the invoices and note that the work conducted fell into work which was necessary to the conduct of the litigation which had traditionally been termed party and party costs, and work necessary to keep the respondent informed and advised, traditionally termed solicitor client costs. No item appears extravagant or unnecessary. A discount has been applied to deduct what might be termed solicitor client costs. [4] I consider that it is in the interests of justice that costs are awarded to the respondent and that the usual order that the parties bear their own costs is not made.2 Where a matter is withdrawn by an applicant and costs are sought by a respondent, the legal test to be applied is whether the applicant acted reasonably in commencing and after that maintaining the proceedings which the applicant no longer pursues.3Whether the applicant has acted reasonably is a factor which engages the discretion given to the Tribunal in s 102 of the QCAT Act to determine if it is in the interests of justice for an award of costs to be made.4 I observe that the circumstance of an applicant 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 107(1) ('QCAT Act’); Submissions of the respondent filed 14 December 2023. 2 QCAT Act (n 1) ss 102, 100. 3 Barnett & Anor v Pirrone & Anor [2019] QCATA 166, [17]; Campbell v Queensland Building and Construction Commission [2021] QCATA 34. 4 QCAT Act (n 1) s 102. -- 2 of 4 -- 3 withdrawing before a hearing gives rise to different considerations than if the matter had proceeded to a hearing and there had been a determination of the issues. [5] For the following reasons I consider that the applicant has not acted reasonably. The issue has consonance with relevant factors in s 102(a), (b) and (c) of the QCAT Act.5 [6] I accept the submissions of the respondent that it has been disadvantaged by the conduct of the applicant in the matter. [7] First, by the applicant’s failure to comply with Appeal Tribunal directions in a timely way resulting in cost to the respondent in communicating with the applicant and ultimately in making an application to the Appeal Tribunal to dismiss the application because of non-compliance with Directions. [8] Further, it is submitted that grounds of appeal related to asserted errors of fact, when only errors of law may be the subject of an appeal of this nature.6 That is a strong basis on which to award costs to a party put to the costs of responding to a misconceived application, particularly in circumstances where the applicant has been legally represented. [9] Finally, the applicant withdrew its application to appeal despite earlier rejecting the respondent’s proposal to dismiss the application with no order as to costs. As a result, the respondent says that it incurred legal costs in considering a lengthy appeal book and in responding to submissions, which could have been avoided if the applicant had assessed the merits of withdrawing at an earlier stage without any costs implications. [10] I have considered the submissions of the applicant opposing an order for costs. The applicant submits that s 100 of the QCAT Act should apply so that there is no order for costs, because there is nothing which points compellingly to a costs award so as to overcome the strong contra-indication against costs orders.7 That proposition has been challenged in a number of recent cases.8 The result is that a more nuanced approach applies, which takes into account the intention of s 100 of the QCAT Act weighed with factors relevant to the interests of justice question. That approach will be influenced by the nature and scope of the proceedings.9 [11] In these proceedings a withdrawal was filed on 29 August 2023 prior to the hearing listed for 26 September 2023. Both parties have been legally represented throughout the matter. It must have been evident to the applicant that the respondent’s costs of the appeal would be thrown away in the event of a withdrawal and that reasonable conduct would necessitate an early decision as to whether the appeal should continue to be prosecuted rather than wait until a large proportion of the work for the hearing had been completed. [12] The applicant asserts that it has genuine complaints. That may be, however the factual basis for the Adjudicator’s findings cannot be the subject of the appeal to this 5 Ibid. 6 Body Corporate and Community Management Act 1997 (Qld) s 289(2). 7 QCAT Act (n 1) s 100; Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412. 8 Cowen v Queensland Building and Construction Commission [2021] QCATA 103, [27]; CH v Queensland Police Service [2021] QCATA 137, [6]-[7]. 9 Holgar v The Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading & Ors (Costs) [2023] QCAT 408, [106] following Pound v Queensland Building and Construction Commission [2023] QCAT 298. -- 3 of 4 -- 4 Tribunal. The parties’ positions were well ventilated prior the appeal proceeding, so that it is difficult to accept the applicant needed to await the respondent’s response before deciding to withdraw. I do not accept that it was a reasonable course to frame an appeal to this Tribunal largely by reference to alleged errors of fact and to wait until after the respondent’s response had been filed to withdraw the proceeding. The applicant does not say why the proceeding was withdrawn. The assessment that it was appropriate to withdraw the appeal proceeding is an assessment which could have been made at a much earlier time. [13] The applicant submits that the extent to which the respondent has benefitted to the direct detriment of the applicant is independently a relevant consideration as to the interests of justice in this case. That argument requires a finding of fact not able to be made in an application of this nature and ignores the function of the appeal which is to correct any error of law on the part of the Adjudicator. [14] In conclusion, I consider that it is in the interests of justice that the respondent is awarded its costs of the appeal proceeding, because it was not reasonable for the applicant to commence the appeal on the grounds advanced not to continue with the proceeding to the point where the respondent was exposed to significant cost. [15] The Applicant must pay the Body Corporate for Kirribilli Heights CTS 37540 the sum of $10, 280.65 within 28 days of the date of this decision. -- 4 of 4 --