Body Corporate for Persse Palace v Dream Suburbs Pty Ltd & Anor [2024] QCATA 11

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Body Corporate for Persse Palace CTS 48289 v Dream Suburbs Pty Ltd & Anor [2024] QCATA 11 PARTIES: BODY CORPORATE FOR PERSSE PALACE CTS 48289 (applicant) v DREAM SUBURBS PTY LTD ACN 609 015 938 ATF SOK AND AMY FAMILY TRUST & ORS AND TIM GLOBAL PTY LTD ACN 168 580 505 ATF THE SUNRISE FAMILY TRUST (respondents) APPLICATION NO/S: APL241-23 ORIGINATING APPLICATION NO/S: OCL046-18 MATTER TYPE: Appeals REASONS DELIVERED ON: 6 February 2024 DECISION MADE: 22 September 2023 HEARD AT: Brisbane DECISION OF: Member Lember ORDERS: The application to stay a decision filed on 25 July 2023 is refused. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where stay is sought of a costs decision in a body corporate dispute – where substantive decision is the subject of an appeal – whether to stay the costs decision pending the appeal of the substantive decision - where balance of convenience lies Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 32, s 100, s 102, s 126, s 142, s 145, s 146, s 147, s 149 Australian Coal and Shale Employees’ Federation v The Commonwealth & Others (1953) 94 CLR 621 Commissioner of Taxation v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220 Croney v Nand [1999] 2 Qd R 343 Day v Humphrey [2017] QCA 104 -- 1 of 5 -- 2 Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 Schweppes’ Ltd v Archer (1934) 34 SR (NSW) 178 State of Queensland & Anor v Bell [2016] QCATA 176 Wheeler & Smith v Body Corporate For Calypso Towers & Anor [2015] QCATA 162 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 What is this application about? [1] Following a five-day hearing that commenced on 12 December 2022, the Tribunal decided1 that the respondents’ management and letting agreement with the applicant body corporate was valid, that the body corporate should pay $23,360.29 to the respondent in outstanding management fees and dismissed the body corporate’s counterapplication (the ‘substantive decision’). The respondents then applied for an order that the body corporate pay its costs of the substantive proceeding. [2] On 6 February 2023, the body corporate appealed the substantive decision and applied to stay it pending the outcome of the appeal.2 [3] On 15 May 2023, the application to stay the substantive decision was refused (the ‘stay decision’). [4] On 28 June 2023, the tribunal decided the costs application against the body corporate, requiring it to pay costs in the proceeding within twenty-eight days (the ‘costs decision’). [5] By applications filed 25 July 2023 in this proceeding, the body corporate seeks leave to appeal the costs decision and applied to stay the costs decision pending the outcome of the appeal. [6] By a decision made 22 September 2023 I refused the application to stay the costs decision for the following reasons. Stays and applications for leave to appeal under the QCAT Act [7] The starting point is that the successful party to a proceeding is entitled to the ‘fruits of its litigation’ and that first instance orders should not be considered merely provision subject to an appeal.3 [8] However, section 145(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) empowers the Appeal Tribunal to, as an exercise of discretion, make an order staying the operation of a decision of the Tribunal below until the appeal is finally decided. 1 On 9 January 2023, in OCL046-18. 2 APL037-23. 3 Commissioner of Taxation v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220, 222-223 at [8]; Wheeler & Smith v Body Corporate For Calypso Towers & Anor [2015] QCATA 162 at [5]. -- 2 of 5 -- 3 [9] To succeed on an application for a stay, the party applying for the stay must satisfy the Appeal Tribunal that there is a good reason for the stay, including:4 (a) that the applicant has a good arguable case on appeal; (b) that the applicant will be disadvantaged if a stay is not ordered; and (c) that competing disadvantage to the respondent, should the stay be granted, does not outweigh the disadvantage suffered by the application if the stay is not granted. Good arguable case on appeal [10] The Appeal Tribunal need not speculate about the prospects of success of the appeal but, rather, need only be satisfied that the applicant’s case is arguable and not lodged as an abuse of process or to delay the decided outcome.5 Should the costs decision follow the substantive decision? [11] The body corporate argues that if the appeal of the substantive decision is successful, resulting in the substantive decision being set aside, then it is likely that the costs decision will also be set aside, which is consistent with the Appeal Tribunal’s powers under sections 146 and 147 of the QCAT Act. [12] However, if the Appeal Tribunal should have regard to the merits of the substantive application in considering the merits of the costs application, then it follows that regard should be had by the Appeal Tribunal to the decision made that refused to stay the substantive decision in which Senior Member Fitzpatrick observed that “it would be putting the matter too highly to say that the Body Corporate has a strong arguable case”. [13] The respondents submit in that case that, as the body corporate’s case on appeal has not improved since the stay decision was made, there is no reason why the Appeal Tribunal should find differently in the costs stay decision from the stay decision in respect of the matters already addressed in it. [14] Although the making of a decision by the tribunal does not create an issue estoppel by virtue of section 126(2) of the QCAT Act, nonetheless the tribunal is expected, among other things, to promote consistency of tribunal decisions.6 Departing from a stay decision on the substantive decision in deciding the stay on the related costs decision, in the absence of any reasonably arguable case of error in the making of the costs decision, would promote inconsistency and should, therefore, be avoided. The costs decision is an exercise of discretion [15] A costs decision is an exercise of discretion, in that costs do not ordinary follow the event but may be awarded if the interests of justice require.7 [16] Further, leave to appeal is required to appeal a costs decision.8 This requires that the body corporate establish not only that there is an error in the costs decision, but also 4 Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 per Jerrard JA at [8]; Day v Humphrey [2017] QCA 104 per Morrison JA at [5] and [6]. 5 Croney v Nand [1999] 2 Qd R 343 at [39]-[41]. 6 QCAT Act, s 3. 7 Ibid, ss 100 and 102. 8 Ibid, s 142(3). -- 3 of 5 -- 4 that leave to appeal is necessary to correct a substantial injustice arising from the error. The “financial pressure” referred to by the body corporate in its submissions would not amount to substantial injustice, in the circumstances. It is not apparent on the body corporate’s argument that leave to appeal will be given. [17] As to error in the costs decision itself, there is a strong presumption for the legal correctness of an exercise of discretion and the Appeal Tribunal ought to presume “that the ‘generous margin of discretion’ was exercised properly unless confidence in it can somehow be shaken to the point that allowing the order to stand might be substantially unjust in all the circumstances”.9 [18] In Schweppes’ Ltd v Archer (1934) 34 SR (NSW) 178 at 183-184 Jordan CJ said:10 In appeals as to costs, the principles to be applied are these. The Court will always review a decision of a Taxing Officer where it is contended that he has proceeded upon a wrong principle, for the purpose of determining the principle which should be applied, and an error in principle may occur both in determining whether an item should be allowed and in determining how much should be allowed. Where no principle is involved, and the question is, whether the Taxing Officer has correctly exercised a discretion which he possesses and is purporting to exercise, the Court is reluctant to interfere. It has undoubted jurisdiction to review the Taxing Officer’s decision even where an exercise of discretion only is involved, and will do so freely on a proper case, using its own knowledge of the circumstances: Western Australian Bank v Royal Insurance Co. (7 C.L.R. at 388); Clark, Tait & Co v Federal Commissioner of Taxation (47 CLR 142, at 145-6), but it will in general interfere only where the discretion appears not to have been exercised at all, or to have been exercised in a manner which is manifestly wrong; and where the question is one of amount only, will do so only in an extreme case. [19] The body corporate submit that the learned Member did not consider the ‘mixed success’ of the parties in substantive application, in making the costs decision, however, the respondents correctly point out that this issue was addressed in paragraph [10] of the costs decision. [20] It is apparent that the body corporate disagrees with the costs decision but they have not established reasonably arguable case of error, namely, that the exercise of discretion to award costs was “manifestly wrong” in the circumstances. A costs amount decision [21] The amount of the costs awarded, which is also objected to on appeal by the body corporate, cannot be appealed to the Appeal Tribunal11 and must instead be taken to the Court of Appeal.12 [22] To the extent leave to appeal is sought to appeal the costs-amount aspects of the costs decision, the application has no prospects of success. [23] These factors do not favour the grant of a stay. 9 State of Queensland & Anor v Bell [2016] QCATA 176 at [11], citations omitted. 10 Cited with approval by Kitto J in Australian Coal and Shale Employees’ Federation v The Commonwealth & Others (1953) 94 CLR 621 at 628 – 629. 11 QCAT Act, section 142(2). 12 Ibid, section 149. -- 4 of 5 -- 5 Disadvantage if a stay is not ordered [24] The body corporate argues that: (a) If the appeal of the substantive decision is successful, resulting in the substantive decision being set aside, then it is likely that the costs decision will also be set aside. (b) The costs order against the body corporate is substantial and, as a body corporate is funded by the contributions of individual lot owners, regardless of whether the costs order is budgeted or would be met by a special levy (which the body corporate submit will be required) but either way, lot owners will ultimately pay for them. [25] However, there is no material before the Appeal Tribunal to support a conclusion that the body corporate (with funding by the lot owners) cannot meet the costs award or that refusing to stay the decision will cause excessive hardship. The body corporate simply argues that it will suffer ‘financial pressure’ if requiring to comply with the costs order. [26] Further, there is no obvious disadvantage to the body corporate of refusing the stay in circumstances where it is not suggested that the respondents could not afford to repay the judgment sum if the substantive decision, and the costs decision, are set aside on appeal. [27] Finally, there is no obvious position of the body corporate to protect by granting a stay to secure the effectiveness of the exercise of the Appeal Tribunal’s jurisdiction on the evidence currently before it. Competing disadvantage if a stay is granted [28] If the stay is granted, the obvious disadvantage to the respondents is the inability to enjoy the fruits of their first instance success, enforcement action (if it is to be taken) would be delayed, and the respondent will remain out of pocket for the payment. [29] On the other hand, interest will accrue on the debt for as long as it remains unpaid to compensate for this delay. [30] On balance, and particularly given there is no good arguable case of error, any disadvantage to the body corporate of refusing the stay is outweighed by the disadvantage to the respondents of granting it. Decision [31] For those reasons, the application to stay a decision is refused. -- 5 of 5 --