Committee for Edgecliffe Apartments CTS 10590 v Glen [2020] QCATA 167

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Committee for Edgecliffe Apartments CTS 10590 v Glen [2020] QCATA 167 PARTIES: COMMITTEE FOR EDGECLIFFE APARTMENTS CTS 10590 (applicant/appellant) V JUSTIN KENNETH GLEN (respondent) APPLICATION NO: APL060-20 ORIGINATING APPLICATION NO: BCCM Ref: 0057-2020 MATTER TYPE: Appeals DELIVERED ON: 19 November 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Howard ORDERS: The applicant’s application for costs is dismissed. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OTHER MATTERS – where party claiming costs of responding to costs application – where initiating application withdrawn by party seeking costs – where costs sought in appeal of an interlocutory order – where party claiming costs withdrew application for foreseeable reason – where costs claimed of responding to meritless or baseless application – where a party has caused unnecessary disadvantage -– whether costs order should be made in favour of a party who withdrew initiating application Body Corporate and Community Management Act 1997 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 48, s 100, s 102, sch 3 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 83(a), r 86 Edgecliffe Apartments [2020] QBCCMCmr 62 -- 1 of 7 -- Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 REPRESENTATION: Applicant: Dr W Weber, Body Corporate Law Queensland Respondent: Self-represented APPEARANCES: 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 Committee for Edgecliffe Apartments (‘the Committee’) filed an application for interim and final orders with the Office of the Commissioner for Body Corporate and Community Management (‘BCCM’), including interim orders that would restrain Justin Glen, the chairman of the committee, from further acting or purporting to act in that role. Allegations are made of improper use by Mr Glen of his position as chairman, including by making decisions unilaterally without consulting the Committee, by incurring improper costs on behalf of the Committee and by making decisions to bind the body corporate without disclosing, or taking appropriate steps to minimise, a conflict of interest. [2] An interim order was made on 14 February 2020 by a BCCM Adjudicator which effectively restrained Mr Glen from acting as chairperson without express approval of the Committee (with some exceptions). However, on 21 February 2020, the order was varied inter alia to the effect that Mr Glen was allowed to continue to exercise the statutory functions of chairman in general meetings, but not to act on behalf of the committee as chair without prior express resolution of the committee authorising him to do so, until further order. [3] This interim decision was appealed to the Appeal Tribunal of the Queensland Civil and Administrative Tribunal (‘QCAT’) by the Committee. The Committee also filed an application for stay order. Mr Glen filed submissions about the stay application on 17 April 2020 as directed. The Appeal Tribunal dismissed the stay application. [4] Pursuant to the Appeal Tribunal’s directions dated 23 March 2020, the Committee served the appeal book, namely a copy of the BCCM file, on Mr Glen on or about 8 May 2020 by post and email. The Committee was further directed to file and serve its written submissions on the appeal by 12 June 2020. Mr Glen was directed to file and serve his submissions in response by 10 July 2020. [5] On 11 June 2020, the Committee filed a Notice of Withdrawal of its appeal. [6] On 12 June 2020, Mr Glen then filed a costs application. In response, the Committee filed on 23 July 2020 an application to dismiss Mr Glen’s costs application pursuant to either s 47 or s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) and costs. Mr Glen then filed a notice of withdrawal of his costs application on 31 July 2020. The Committee presses its costs application. [7] For the reasons set out below, the Committee’s costs application is refused. -- 2 of 7 -- The history of the costs application [8] There is a complicated history to the Committee’s costs application. [9] Although it was subsequently withdrawn, I note that in support of his application filed 12 June 2020 seeking costs of $1,950, Mr Glen stated: Considerable effort was expended by the respondent. The respondent received an 804-page appeal book on 23 March 2020, from the applicant, which required a response. He sought administrative help and filed a 34-page response document with CAD on 17 April 2020. The response involved considerable time researching and addressing the accusations. An invoice for $1,950 is attached with this claim. [10] Although Mr Glen’s application refers to seeking support in filing a response on 17 April (it appears, in response to the stay application), the invoice from ‘Kalinga Services’, stated that an amount of $1,950 was owing for ‘13 hours of administrative services at $150 per hour to assist with document searches and writing response to an 804-page QCAT Appeal APL060-20 launched by Edgecliffe Committee’. Although ultimately it is of no consequence to the outcome here, the invoice therefore on its face appears to relate to the Appeal Book, rather than the submissions about the stay application. The date of this service and the invoice are both given as 12 June 2020, being the date that his costs application was filed. The payment details include an account in the name of Denise Glen, and the address for the business is Mr Glen’s home address. [11] The Committee says that it was not served with Mr Glen’s costs application: it obtained a copy through the tribunal registry. [12] On 24 June 2020, the Committee’s solicitor wrote to Mr Glen on a ‘without prejudice save as to costs’ basis inviting him to withdraw his costs application and serve a notice of withdrawal by 6 July 2020, based on a number of arguments as to why it was ‘baseless, frivolous and vexatious.’ The arguments, amongst others, related to s 100 of the QCAT Act, whereby parties generally bear their own costs; the creation of Kalinga Services registered in Denise Glen’s (Mr Glen’s wife’s) name and the invoice after the application for costs was signed; and to the effect that Mr Glen did not have to respond to the appeal book. The correspondence was stated to be an offer pursuant to r 86 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘the QCAT Rules’) and, if not accepted, that an application may be made by the Committee to dismiss the application and seek an order for costs against him. [13] On 23 July 2020, the Committee then filed an application seeking orders to dismiss Mr Glen’s costs application and sought its costs of the application in response [14] The Committee’s main arguments in relation to its costs application were to following effect:  there is no basis for the costs application by Mr Glen having regard to s 100, and in the absence of any costs order against Mr Glen on the stay application;  the Tribunal has no power to award costs having regard to the QCAT Rules r 83(a);  the Committee disputes that Mr Glen received an appeal book prior to 8 May 2020 at the earliest and argues that he was not required to respond to it in light of the withdrawal of the appeal; -- 3 of 7 --  the Committee alleges that the invoice is spurious and, in particular, that Kalinga Services was created by Mr Glen and his wife on 12 June 2020 for the purpose of making a false and back-dated claim for costs (a copy of the relevant business name search is provided and confirms registration on 12 June 2020); and  Mr Glen failed to serve his application on the Committee. [15] The Committee seeks its costs fixed in the sum of $1,678.35 pursuant to the factors set out in s 102 of the QCAT Act and, it says, in reliance on Rules 83 and 86 of the QCAT Rules. [16] On 31 July 2020, Mr Glen filed a Notice of Withdrawal of his costs application. [17] On 10 August 2020, the Appeal Tribunal made directions that the Committee was to advise in writing whether it intended to continue with its costs application and, if it did, for Mr Glen to respond to the application. [18] On 18 September 2020, the Committee advised that it had not been served with a Notice of Withdrawal by Mr Glen and that it intended to proceed with its costs application. [19] On the same day, Mr Glen wrote to QCAT in the following terms: Our costs application was withdrawn. QCAT notified us and the applicant by email on 13th August that the application was withdrawn. We notified the applicant on 30th July that we withdrew our costs application. The applicant withdrew their APL060-20 appeal and on that basis we will not pay their costs. Should a costs order be made in favour of the Committee? [20] Reliance by the Committee on Rule 83 is misplaced. It applies only in respect of costs for minor civil disputes,1 other than minor debts. This proceeding concerns an appeal from a BCCM Adjudicator’s decision, not a minor civil dispute. [21] Reliance by the Committee on Rule 86 is also misplaced. It applies, inter alia, if the tribunal’s decision is not more favourable to the other party than the offer made. Here, the tribunal did not determine Mr Glen’s costs application in a manner more favourable to the Committee. The costs application was withdrawn by Mr Glen. [22] Pursuant to s 100 of the QCAT Act, other than as provided under the Act or an enabling Act, each party must bear its own costs of the proceeding. Relevantly here, there is no relevant provision in the Body Corporate and Community Management Act 1997 (Qld) (‘BCCM Act’) as to costs. Section 100 has been considered a strong contra-indication against costs orders in QCAT proceedings.2 However, s 102 relevantly empowers the tribunal in its discretion to make a costs order if it considers the interests of justice require it to make the order. In deciding whether to award costs it may have regard to the factors set out at s 102(3). The s 102(3) factors [23] Each of the specified factors is considered in the following paragraphs. 1 QCAT Act, sch 3 (definition of ‘minor civil dispute’). 2 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, [29]. -- 4 of 7 -- S 102(3)(a) causing of unnecessary disadvantage to another party, including as mentioned in s 48(1) [24] Unnecessary disadvantage is disadvantage which is not usually experienced in the course of conducting litigation. [25] There is an acrimonious history of entrenched interpersonal conflict to the dispute. Prior to the withdrawal of the appeal proceeding, Mr Glen had been required only to respond to the stay application. It appears that he did so as directed. Following the withdrawal of the appeal, he then made his application for costs, seeking costs for responding to the appeal book, which I accept, as the Committee submits, he did not receive until at earliest 8 May 2020 (that is, well after submissions on the stay application were submitted on 17 April 2020), and which he was not required to respond to specifically or in any way until after the Committee had filed its submissions on the appeal, which it ultimately did not do, because the appeal was earlier withdrawn. [26] The invoice from Kalinga Services (a business name registered at his home address in the name of his wife on the day following the date of his costs application) was effectively a claim for labour costs of his wife for administrative support, on its face, in assisting him, in relation to the appeal book. [27] There are several problems with that claim. Firstly, Mr Glen was not directed to respond specifically to the appeal book, and to the extent that he needed to do so in responding to the Committee’s submissions on the appeal, as opposed to the stay application, the time had not then arisen for him to do so (and it ultimately did not arise at all because the appeal was withdrawn in the meantime). To the extent that the invoice might be said by Mr Glen to relate to the submissions prepared in response to the stay application, the appeal book was served on Mr Glen, after those submissions were filed. [28] In any event, outlays (for example, in obtaining a relevant expert report) and legal costs incurred in a proceeding are costs in respect of which an order might legitimately be claimed or awarded to a party in the interests of justice. The claim as made by Mr Glen, who represents himself was effectively for alleged costs of some vague administrative support provided by his wife. Costs of that nature could not support an application for costs. For those reasons, Mr Glen’s claim was baseless. [29] I would accept that in making the application for costs, Mr Glen caused the Committee to have to respond to a costs application that was doomed to fail. The Committee claims its legal costs incurred in responding. Responding to a costs claim is of itself a usual incident of the litigation process. However, here the costs application was baseless because the claimed costs were not costs that could be awarded. Further, Mr Glen did not serve the costs application: the Committee had to obtain it from the registry. [30] Therefore, Mr Glen did cause unnecessary disadvantage to the Committee. [31] This factor weighs in favour of making a costs order. S 102(3)(b) the nature and complexity of the dispute [32] The BCCM Act provides for an appeal only on a question of law. I accept that there is complexity in considering whether error was made by the BCCM Adjudicator in the decision appealed and framing of the alleged errors into grounds of appeal. I accept -- 5 of 7 -- that it was reasonable for the Committee to obtain legal advice and assistance in the appeal. [33] That said, the costs application itself made by Mr Glen did not involve complexity. The Committee chose to not only respond through lawyers, but to increase its expenditure of costs in making a further application against Mr Glen. [34] The costs application by Mr Glen was very brief and not complex. It did not warrant incurring further legal costs in response in the filing of a further (strike out) application and associated application for costs. [35] This factor weighs against the making of a costs order. S 102(3)(c) the relative strength of the claims made by each party [36] The Committee’s argument is that Mr Glen’s costs application had no legitimate basis and it should therefore have its costs in respect of that application. [37] While I accept that Mr Glen’s costs application had no merit, in my view, the costs application must nevertheless be viewed in its context. It was made in the scheme of an appeal of an interim order made by the Committee that had been withdrawn, on the Committee’s own submission because it is an appeal of an interim order that may not be decided before the BCCM made a final decision. [38] Therefore, the appeal itself did not proceed to determination by the Appeal Tribunal. As it was withdrawn before submissions were filed in respect of the appeal itself, there is some difficulty in assessing of the strength of the Committee’s case on the appeal. That said, it would not appear to me to serve the interests of justice if Mr Glen was required, on the basis of his ill-fated costs application, to pay the associated costs of the Committee in circumstances that the Committee withdrew its appeal. It is reasonable to infer, and I do, that the costs incurred by the Committee in filing and running the appeal itself (until withdrawn) were considerably more significant than the costs in responding to Mr Glen’s costs application. [39] I am not satisfied that this factor weighs in favour of a costs order in the circumstances. [40] Section 102(3)(d) is not relevant here, in respect of an appeal proceeding. S 102(3)(e) the financial circumstances of the parties [41] The circumstances of the parties are not the subject of evidence or submissions before me in the application. S 102(3)(f) anything else the tribunal considers relevant [42] There is a relevant history of BCCM adjudication applications prior to the current application, in respect of which final orders are yet to be made.3 It is apparent that there are divisions within the lot holders. The BCCM Adjudicator described the scheme owners as being divided into ‘two factions’,4 in summary, due to a breakdown of trust and lack of objectivity about the actions of the other,5 likely leading to the waste of resources and time of lot owners.6 Based on the evidence in the BCCM file 3 As referred to by the BCCM Adjudicator in Edgecliffe Apartments [2020] QBCCMCmr 62 at [29]. 4 Ibid at [35]. 5 Ibid at [35]-[38]. 6 Ibid at [36]. -- 6 of 7 -- and the material filed by the parties in the Appeal Tribunal, I agree with that assessment. [43] The willingness of the parties to devote effort and time in preparing, and for the Committee incurring expense by way of legal costs, in pursuing costs applications for small amounts of money following the withdrawal of the appeal is symptomatic of this unfortunate personal conflict and distrust. [44] Here, the Committee filed an appeal which it did not ultimately pursue. Had Mr Glen incurred legitimate costs by way of legal costs in responding to the appeal proceeding, he may well have had a good argument for costs against the Committee. As discussed, the decision appealed is an interim order of a BCCM Adjudicator. It was withdrawn, on the Committee’s submission because by the time the appeal was heard, it was likely that the interim orders would lose their effect due to final orders being made. That is, at the time of the filing of the appeal, a final determination was still to be made by a BCCM Adjudicator. It was inherently possible that the final decision might be made before the appeal was determined. [45] This is a matter that the Committee could and should have reasonably considered in deciding to file its appeal. As it is, no doubt, the since abandoned proceedings have subsumed energy and time, as well as causing some degree of stress for Mr Glen (and all involved) and expense for the Committee in incurring legal costs, as a consequence of the Committee’s actions in bringing an appeal only to abandon it for reasons that could and should have reasonably been considered when it was filed. [46] This factor weighs against making of a costs order. Conclusions and orders [47] There is a most unfortunate history of conflict and mistrust between lot owners in the scheme. Mr Glen’s misguided costs application is unfortunate. [48] That said, the Committee commenced an appeal of an interim order which it withdrew within months of filing because it might be overtaken by a final order, in circumstances when it was aware from the time of filing that the order was an interim order and may be overtaken by a final order. It thereby no doubt caused stress for Mr Glen unnecessarily. Further, it responded to the costs application by incurring further costs itself, not only in responding but in making and pursuing, even when Mr Glen withdrew his costs application, its own further application for (strike out and) costs, in an appeal proceeding in which it had already abandoned its appeal. [49] Having regard to the overall circumstances of the proceeding. I am not satisfied that the interests of justice require the making of a costs order in favour of the Committee. [50] The application for costs is therefore dismissed. I make orders accordingly. -- 7 of 7 --