Barnett & Anor v Pirrone & Anor [2019] QCATA 166

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: PARTIES: Barnett & Anor v Pirrone & Anor [2019] QCATA 166 CHRIS BARNETT (first applicant\appellant) NICOLA ZOE ANGEL (second applicant\appellant) v MARIO PIRRONE (first respondent) NICOLA JULIE PIRRONE (second respondent) APPLICATION NO/S: APL001-19 ORIGINATING APPLICATION NO/S: NDR182-16; MCDO752-18 Brisbane MATTER TYPE: Appeals DELIVERED ON: 11 December 2019 HEARING DATE: 2 October 2019 HEARD AT: Brisbane DECISION OF: Senior Member Aughterson presiding Member Howe ORDERS: Leave to adduce fresh evidence on appeal refused. Leave to appeal granted. The appeal is allowed. The decision of the Tribunal made 16 November 2018 is set aside. The respondents pay the appellants costs of the proceedings on an indemnity basis from 24 May 2018 fixed in the sum of $14,066.25. The respondents pay the appellants costs of appeal in the amount of the filing fee of the application for leave to appeal and appeal of $676.40. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – ADMISSION OF NEW EVIDENCE – whether error by tribunal – whether leave should be given -- 1 of 13 -- 2 PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where appeal against costs order – where leave to appeal costs order required – whether error by tribunal – whether leave should be given – whether appeal tribunal should make order for costs – whether costs should be on indemnity basis Commercial and Consumer Tribunal Act 2003 (Qld), s 71 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 31 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 46, s 100, s 102, s 142(3)(a)(iii), s 146 Uniform Procedure Rules 1999 (Qld), r 304(2), r 307(2) Booth v Helensvale Golf Club Ltd [1997] 2 Qd R 141 Colgate Palmolive v Cussons Pty Ltd [1993] FCA 536; (1993) 118 ALR 248 Department of Child Safety, Youth and Women v PJC and the Public Guardian [2019] QCATA 109 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; (1988) 81 ALR 397 Harrison and Anor v Meehan [2016] QCATA 197 J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers – Western Australian Branch and Building Trades Association of Unions of Western Australia (Association of Workers) [1993] FCA 42 Lominoga v Lominoga [1930] QWN 12 Orr v Orr [1949] QWN 5 Petavrakis v Hirst & Co [2001] QSC 224 QBCC v Crocker [2018] QCATA 194 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Rathie v ING Life Ltd [2003] QSC 429 Richards v Richards [1933] QWN 12 Sharpe v Wren [1917] St R Qd 817 Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd [1991] FCA 187 Applicant: Self-represented Respondent: Self-represented REASONS FOR DECISION [1] This matter involves an appeal about costs. The respondents in the appeal were the applicants in the hearing at first instance. In these reasons they are referred to as the respondents. -- 2 of 13 -- 3 [2] In November 2016, the respondents filed in the Tribunal an application concerning a tree dispute. They claimed that tree roots from trees on the appellants’ property had caused and were causing serious damage to a timber retaining wall on their land. [3] As is outlined below, it later emerged that there was a lack of clarity as to what factors caused or contributed to the damage to the retaining wall. In particular, there was a lack of clarity as to the extent to which, if at all, the trees or tree roots contributed to the damage. That gave rise to the question of whether the Tribunal was the proper forum to determine the matter, given its limited jurisdiction under Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’). [4] On 31 May 2018, the respondents also filed in the Tribunal a separate application seeking an order from the Tribunal in relation to a dividing fence on the boundary between the properties and at the top or near to the top of the retaining wall. [5] In directions made on 17 July 2018, the matters were consolidated and came on for hearing on 5 September 2018. [6] At the outset of the hearing it was noted that no notice to fence had been given pursuant to s 31 of the Act and, accordingly, the Tribunal lacked jurisdiction to hear the fencing matter. That application was dismissed. Shortly thereafter, following a reminder by the learned Member as to the jurisdiction of the Tribunal relative to matters impacting the retaining wall other than trees, the matter was stood down for some hours to enable the parties to consider their positions. [7] The respondents then indicated that they wanted all matters affecting the retaining wall to be dealt with together as one dispute and, as such, would withdraw their application relating to the tree dispute. A formal withdrawal was filed one week later. [8] The appellants sought their costs against the respondents. The learned Member refused their application and ordered that each party bear their own costs in the proceedings. The appellants seek leave to appeal that decision. Leave is necessary given this is an appeal about a costs order.1 The criteria for determining whether leave should be granted are well established: is there a reasonably arguable case of error in the primary decision, is there a reasonable prospect that the applicant will obtain substantive relief, is leave necessary to correct a substantial injustice to the applicant caused by some error, and is there a question of general importance upon which further argument and a decision of the appellate court or tribunal would be to the public advantage.2 [10] The grounds of appeal are that the learned Member erred: (a) in not awarding costs in favour of the appellants; 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(iii) 2 Harrison and Anor v Meehan [2016] QCATA 197; QBCC v Crocker [2018] QCATA 194, [4]; Department of Child Safety, Youth and Women v PJC and the Public Guardian [2019] QCATA 109, [14]. -- 3 of 13 -- 4 (b) by considering an irrelevant factor, namely that “both sides are quick to apportion blame”; (c) by not taking into account or providing sufficient weight to the fact that Mr and Mrs Pirrone had sought and received legal advice and nevertheless subsequently pursued their application; (d) by not taking into account that the costs incurred in the Tribunal proceedings may not be recoverable in any subsequent proceedings in the Magistrates Court; (e) because costs should have been awarded against Mr and Mrs Pirrone due to their decision to pursue an application which they knew or ought to have known was incompetent, vexatious and/or frivolous causing the applicants to incur significant and unnecessary costs. [11] Complaint (a) is not in itself a ground of appeal. In essence, the submissions made by the appellants are that the learned Member erred in failing to take proper account of the fact that the respondents pursued an application that they knew or ought to have known was incompetent, and in relation to which the appellants incurred significant and unnecessary costs, in circumstances where ultimately the application was withdrawn. Governing principles [12] In the Tribunal the following provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) apply to costs: 100 Each party usually bears own costs Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding. 102 Costs against party in interests of justice (1) The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order. (2) However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section. (3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following— (a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g); (b) the nature and complexity of the dispute the subject of the proceeding; (c) the relative strengths of the claims made by each of the parties to the proceeding; (d) for a proceeding for the review of a reviewable decision— -- 4 of 13 -- 5 (i) whether the applicant was afforded natural justice by the decision-maker for the decision; and (ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits; (e) the financial circumstances of the parties to the proceeding; (f) anything else the tribunal considers relevant. [13] In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2),3 Wilson J explained that in some circumstances this usual rule as to costs in the Tribunal may not be appropriate and circumstances in that regard are provided for in s 102 of the QCAT Act. Wilson J said: Under that subsection QCAT has a discretion to make a costs order ‘…if the tribunal considers the interests of justice require it…’. Section 102(3) says that, in deciding whether to award costs, the tribunal may have regard to matters not dissimilar to those set out in s 71 of the CCT Act4 including, in particular for present purposes, the nature and complexity of the dispute and the relative strength of each party’s claims. Under the QCAT Act 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. [14] In her reasons for decision, the learned Member referred to Ralacom and then proceeded to consider the nature and complexity of the dispute and the relative strengths of the parties’ cases. She concluded that she could not assess the merits of the respondents’ case as the matter had not progressed through to a full hearing. She therefore concluded that the usual rule should apply with each party bearing their own costs. [15] However, the circumstances supporting the decision in Ralacom were quite different to those applying to the matter at hand. In Ralacom the application was heard and determined on its merits, or rather its lack of merits, and the statements made in that decision should be understood in that context. Here, the application was withdrawn by the respondents before any assessment as to the merits could be undertaken. That circumstance was entirely the choice of the respondents. They did not require leave to withdraw their application. Section 46 of the QCAT Act provides: Withdrawal of application or referral (1) An applicant may, in the way stated in the rules, withdraw the applicant’s application or referral for a matter before the matter is heard and decided by the tribunal. 3 [2010] QCAT 412, [28]-[29]. 4 Commercial and Consumer Tribunal Act 2003 (Qld): the legislation governing the Commercial and Consumer Tribunal, a predecessor to QCAT -- 5 of 13 -- 6 [16] Under the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) the position is different. If an applicant has not discontinued within the period allowed under the rules (that is, by the time a defence is filed) then leave of the court to discontinue is required.5 In those circumstances the court may make an order as to costs caused by the withdrawal or discontinuance as it considers appropriate.6 [17] In cases where a matter is withdrawn or discontinued by the applicant late in the proceedings and the question of costs is raised, 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. [18] In Booth v Helensvale Golf Club Ltd,7 Mackenzie J explained the relevant principles as follows: Turning now to the principles to be applied, in Compadres I adopted and applied propositions derived by Hill J. in Australian Securities Commission v. Aust-Home Investments Ltd (1993) 11 A.C.S.R. 136 to the following effect: ‘‘(a) where neither party desires to proceed with litigation the court should be ready to facilitate the conclusion of the proceedings by making a costs order; (b) it is appropriate to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them; (c) that in some cases it may be appropriate to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation; and (d) that while the fact that interlocutory relief may have been granted may be taken into account that fact carries no implication as to the ultimate merits of the case but does ordinarily suggest that there was an arguable issue to be tried between the parties and that the balance of convenience favoured the grant of that relief.’’8 [19] On that basis, the issue of the prospects of success is not central. In Rathie v ING Life Ltd,9 a matter involving third-party proceedings where a defendant made an application prior to the hearing for leave to discontinue the third-party proceeding it had commenced, Mullins J said: … the plaintiff sought to argue that the claim for misrepresentation made by the defendant in the third party proceeding was weak. On an application of this nature, it is neither appropriate nor possible to assess the prospects of success of causes of action which are now not to be pursued by the relevant party, unless it is patent that there were no prospects of success.10 5 UCPR, r 304(2). 6 UCPR, r 307(2). 7 [1997] 2 Qd R 141. 8 Ibid 142. 9 [2003] QSC 429. 10 Ibid [49]. -- 6 of 13 -- 7 [20] A statement to similar effect was made by White J in Petavrakis v Hirst & Co,11 in giving leave to the plaintiff to discontinue and in making an award of indemnity costs against the discontinuing plaintiff: It is important to make clear that this decision in no way deals with the merits of any allegations between the parties of a substantive kind. The decision is based on matters of procedure and reference to facts not in dispute. [21] In our view, in failing to address the principles applicable to cases where an applicant withdraws or discontinues late in the proceedings, the Tribunal at first instance fell into error. That is, in failing to consider whether the respondents acted reasonably in commencing and maintaining the proceedings prior to the withdrawal, and whether the appellants acted reasonably prior to and in defending the proceedings. [22] Leave to appeal should be granted and the appeal allowed. [23] By s 146 of the QCAT Act, where there is a successful appeal against a decision on a question of law the Appeal Tribunal may, among other things, make any order it considers appropriate. Given that the question of costs here is not based on an assessment of the prospects of success but on matters of procedure and by reference to facts not in dispute, the Appeal Tribunal is well able to consider whether costs should be awarded and, if so, what the appropriate order should be. The commencement and progress of the proceedings [24] The parties exchanged correspondence before the tree dispute application was filed. In a letter dated 4 November 2016 from the respondents to the appellants the respondents suggested that both parties engage an engineering expert to mediate a solution and that both parties have an opportunity to give their opposing views to the engineer. The respondents then set out their view of the matter as follows: A timber sleeper retaining wall between our two properties has a dangerous lean and in my opinion presents a real risk to life and property, particularly as the most precarious lean is directly next to our clothes line, a high traffic area. The timber sleeper retaining wall was not designed to withstand the additional stresses of landscaping work which was undertaken by the neighbour occupying the higher property in 2008. This work comprised adding additional metres of fill and rock on top of the natural lay of the land. I am concerned that the additional volume of soil now retained behind the wall has affected the wall’s structural integrity. In addition, the root structure of the trees planted close to the retaining wall are also causing the wall to lean at a precarious angle.12 [25] However, in the initial application for a tree dispute, at item 11, the principal cause of damage to the retaining wall was reversed. The respondents claimed that tree roots on the appellants land had seriously damaged the retaining wall and that there was a high probability that the retaining wall and a dividing fence on top would collapse. In that 11 [2001] QSC 224, [46]. 12 Application for a Tree Dispute filed 16 November 2016, Attachment 7. -- 7 of 13 -- 8 event, the landfill, rocks and trees on the appellants’ land might collapse onto the respondents’ home. On the question of whether there was any other factor contributing to the injury or damage, reference was made at item 15 of the initial application to landfill and rocks behind the retaining wall. [26] The respondents sought various orders: for an arborist to prepare a report; for an appropriate qualified engineer to prepare a report; and an order ‘to share the cost of remediation work on the boundary fence and retaining wall’. [27] In their response, the appellants disputed that the trees caused a problem. They maintained that the trees were chosen because of their non-invasive root systems. [28] At a directions hearing held on 2 February 2017, a Senior Member of the Tribunal considered an application for an order that the parties share the cost of an engineer’s report concerning the retaining wall. The Senior Member raised the question of whether the Tribunal had jurisdiction to deal with the retaining wall issue. The respondents said that the tree roots were a factor causing damage to the retaining wall, though the extent was unknown. Hence the engineer’s report was sought. The respondents stated that they believed that it was a combination of tree roots and weight, meaning land fill and a swimming pool, constructed by the appellants. [29] The application to share costs was refused on the basis that such a report was a matter for the respondents, as it was their claim that the damage to the retaining was attributable to tree roots. From a perusal of the transcript of those proceedings, it is clear that the Senior Member raised the question of the Tribunal’s jurisdiction to deal with problems associated with the retaining wall if the damage was not caused by trees or tree roots. [30] On 27 February 2017, the respondents obtained a report from Baxter Consulting Engineers. The instructions to those engineers were broad, namely to inspect the retaining wall and identify the likely causes of significant movement. [31] The engineer concluded that the presence of trees in close proximity to the retaining wall could provide an additional load to the retaining wall. However, it was added that the construction of a boulder wall on top of the fill zone behind the retaining wall exceeded 1m in height and as such should have been engineer designed. It provided a significant additional surcharge load on the retained earth behind the retaining wall. Further there appeared to be inadequate drainage on top of the retaining wall in the neighbouring property. Finally, the engineer referred to the construction of a swimming pool in close proximity to the retaining wall, which might also have increased the load upon the retaining wall. [32] It is clear from that report that the tree issue was only one of a number of factors possibly causing damage to the retaining wall. [33] The matter came on for further directions before another Senior Member on 6 April 2017. At that further directions hearing, the Senior Member was clearly aware of the engineering report obtained by the respondents and by that time the appellants had also obtained their own engineering report. The latter report was at odds with the -- 8 of 13 -- 9 conclusions reached by Baxter Consulting Engineers in relation to the contribution of the trees and roots to damage to the retaining wall. [34] A perusal of the transcript of the directions hearing suggests the primary concern of the respondents at that stage was the claimed inadequate construction of the boulder wall behind the retaining wall. At the directions hearing the Senior Member made it clear to both parties that the Tribunal had no jurisdiction to direct rectification of defective retaining walls in the absence of damage caused by trees. He said: This dispute is only about the trees and whether the trees are responsible for what you say is a serious damage to your land or property on your land. Now, if in fact the cause of that are other issues relating to the engineering or design or construction of retaining – of terraced walls, boulder walls, that’s not going to found any jurisdiction by the tribunal, and you won’t have any satisfaction in this proceeding…13 [35] The Senior Member noted that it was difficult to assess the relative merits of the claims of the parties at that time. [36] An arborist was appointed by the Tribunal to provide a report. The arborist did so on 27 May 2017. The arborist concluded that the trees ‘did not start or greatly contribute to the retaining wall failure’.14 [37] The matter was listed for a conclave of the engineering experts. [38] The engineering experts prepared a joint report on 22 June 2017. It was of little value in determining the issue of the contribution of tree roots to the failure of the retaining wall. The conclusion of the arborist was noted by the engineers. However, the engineers said they could not determine accurately the exact cause of failure of the retaining wall. They could only speculate as to the amount of force being transmitted from tree roots. The experts agreed that each had encountered failed retaining walls caused by the close proximity of trees or tree roots.15 [39] The matter of expert engineering evidence was addressed yet again in a directions hearing on 7 December 2017. The parties noted the inconclusive findings of the structural engineers. They both referred to additional geotechnical engineering evidence intended to be obtained. Evidently, that was at the suggestion of the structural engineers.16 The parties were directed to file in the Tribunal any additional geotechnical engineering reports and the geotechnical experts were directed to attend a conclave. [40] At a further directions hearing on 24 May 2018, amongst other things, the parties were directed to file a list of issues that each party suggested should be considered by the geotechnical engineers in conclave. Both parties filed separate lists.17 Significantly, neither party suggested that one of the issues to be addressed was to determine whether 13 Transcript 6.4.17 Page 1-8 Lines 30-35. 14 Joint Report of the Experts, 14. 15 Expert Engineers’ Conclave Report of 22 June 2017, [34]-[35]. 16 Transcript 7.12 2017 Page 1-13 Line 40. 17 Appellants’ Appeal Book, 59 – 62. -- 9 of 13 -- 10 or not the failure of the retaining wall was attributable to the appellants’ trees or tree roots. [41] The geotechnical experts attended the conclave and provided a joint report on 8 August 2018. Their conclusion in relation to trees was limited to the following: The experts agree that the trees have weight and are close enough to apply surcharge pressure to the wall and also agree that neither expert is qualified to assess that weight. The experts also agree that the pressure applied to the wall due to a surcharge is related to the nature of the retained soil, but the experts were unable to agree what the nature of that soil was and what the pressure would be.18 [42] On 31 May 2018, the respondents filed the separate minor civil dispute – dividing fence application. The applications were consolidated and came on for hearing on 5 September 2018. As noted at [5] above, the dividing fence application was dismissed. As is also noted at [5] above, the learned Member raised the question of the extent to which the trees contributed to the problem with the retaining wall and, in turn, whether the Tribunal had jurisdiction. The learned Member made it clear that if the evidence supported a conclusion that it was the boulders, the pool or the landscaping that had caused the retaining wall to fail rather than trees, the Tribunal would lack jurisdiction to make the orders sought by the respondents.19 [43] After a short adjournment, the respondents decided to withdraw the tree dispute application, stating: Well, we thought about it long and hard and – and our view is we really need to pursue the – the option that addresses the entire issue, rather than piecemeal issues. So – and although we’ve still got some outstanding things, like the overhanging branches, I feel like we don’t have any other option but to withdraw at this point in time.20 [44] There were some orders made by consent about pruning the trees overhanging the common boundary. [45] The respondents filed a notice of withdrawal of the application for tree dispute one week after the hearing. Discussion in relation to costs [46] By 27 May 2017, the date of the arborist’s report, it should have been clear to the respondents that their application for relief on the basis of the tree dispute was fraught with difficulties and that the application to the Tribunal had doubtful prospects of success. The arborist’s report concluded that the trees ‘did not start or greatly contribute to the failure of the retaining wall’.21 18 Joint Report of the Experts, 3. 19 Transcript 5.9.18 Page 1-25 Lines 13 – 27; Page 1-41 Lines 33-38; page 1-42 Lines 8-18. 20 Ibid 1-43 Lines 16-20. 21 Arborist’s Report, 14. -- 10 of 13 -- 11 [47] Certainly, when the parties provided their lists of issues to be considered by the geotechnical engineers in conclave, it is reasonable to conclude that the claim that the trees were the cause of serious damage to the retaining wall had fallen away from consideration. Neither party included it as an issue to be addressed. [48] We conclude that by at least the time of the directions hearing on 24 May 2018, when the parties were directed to prepare their list of issues to be answered by the geotechnical experts, it was clear or should have been clear to the respondents that the application for a tree dispute was misconceived. [49] At least by then, they ought to have known that they had no real prospects of success in the application and it should not be further pursued. Persistence by them was unreasonable. The issue of the limited jurisdiction of the Tribunal in respect of the retaining wall had been brought to their attention in directions hearings on more than one occasion. Despite that they continued. They have put the appellants to unnecessary expense. [50] The reason given by the respondents for the belated withdrawal of the tree dispute at the hearing, that they now wished all issues to be determined “holistically”,22 should have been self-evident at an earlier time. They knew or ought to have known by at least 24 May 2018 that the Tribunal was not the proper forum for the dispute. [51] The appellants are entitled to their costs from 24 May 2018. The appropriate basis of award is on an indemnity basis. In Petavrakis White J said:23 In the ordinary case the court orders the costs of one party to litigation to be paid by another on the standard (previously party and party) basis. In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; (1988) 81 ALR 397, Woodward J said at 401: "I believe that it is appropriate to consider awarding `solicitor and client' or `indemnity' costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. Such cases are, fortunately, rare. But when they occur, the court will need to consider how it should exercise its unfettered discretion." Those remarks have been cited with approval in a number of cases including by French J in Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported decision of 3 May 1991) and Sheppard J in Colgate Palmolive v Cussons Pty Ltd [1993] FCA 536; (1993) 118 ALR 248. In J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers - Western Australian Branch (unreported decision of 19 February 1993) French J referred at p 5 to Fountain Meats and his earlier decision in Tetijo and said 22 Application for Miscellaneous Matters filed 13 June 2018 [C2] 23 [2001] QSC 224, [43]-[44]. -- 11 of 13 -- 12 "Although there is said to be a presumption in such cases [Fountain] that the action was commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law, it is not a necessary condition of the power to award such costs that a collateral purpose or some species of fraud be established. It is sufficient, in my opinion, to enliven the discretion to award such costs that, for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case." [52] Those comments are apposite here. The conduct of the respondents in continuing the tree dispute after 24 May 2018, to repeat the words of Wilson J in Ralacom, ‘point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100’ of the QCAT Act. Further, the continuation of the proceedings in circumstances of the repeated warnings at directions hearings that the Tribunal lacked general jurisdiction in respect of retaining walls requires more than an award of costs on the standard basis. [53] The appellants consistently maintained that the proceedings were misconceived. There is no conduct on their part that precipitated litigation in the Tribunal. There is no conduct on their part that should disentitle them to their costs. The consent orders made at the hearing of 5 September 2018 in relation to the lopping of branches are not interlocutory orders favouring the respondents. Overhanging branches were never a significant issue or claim for relief. Assessing costs [54] The appellants claim indemnity costs of $32,887 for the entire conduct of the matter. The appropriate order is indemnity costs from the date when it was clear there was no serious pursuit by the respondents of the claim that the tree roots were a significant cause of the damage to the retaining wall. We have concluded that should be taken from the time of the directions hearing on 24 May 2018. [55] The costs attributable to that period are as follows: Sterling Law Invoice 29 August 2018 $ 715 Interlara (Engineer) Invoice 6 September 2018 $ 1,782 Douglas Partners (Geotechnical) Invoice 7 September 2018 $11,569.25 Total $14,066.25 Fresh evidence [56] The respondents filed an application to adduce fresh evidence at the appeal. That application was refused on the basis that there was no relevant fresh evidence sought to be adduced. The material contained a reiteration of the prior general assertions by the respondents, together with a copy of a Supreme Court application filed 15 August 2019. Neither the reiteration nor the Supreme Court application are relevant to the application for leave to appeal the order made below on costs. -- 12 of 13 -- 13 [57] The only relevance of the Supreme Court proceedings is to draw attention to the fact that leave to withdraw is not required in the Tribunal where it may be in courts under the UCPR and under previous iterations of the rules. Where leave to withdraw or discontinue is required that leave may be conditioned so as to ensure no injustice or prejudice is done to the other party by requiring the party discontinuing or withdrawing to pay the costs of the discontinued proceedings and in some circumstances to give security for costs before commencing the new.24 Orders [58] The appropriate orders are as follows. Leave to appeal is granted and the appeal allowed. The order made below that each party bear their own costs is set aside. In lieu thereof the respondents are ordered to pay costs on an indemnity basis to the appellants fixed in the amount of $14,066.25 plus costs of the appeal limited to the application fee of $676.40. 24 Sharpe v Wren [1917] St R Qd 817; Lominoga v Lominoga [1930] QWN 12; Richards v Richards [1933] QWN 12; Orr v Orr [1949] QWN 5 -- 13 of 13 --