Busby v Body Corporate for Balmattum [2016] QCATA 29

CITATION: Busby v Body Corporate for Balmattum [2016] QCATA 29 PARTIES: BUSBY AND ANOR (Applicant/Appellant) v BODY CORPORATE FOR BALMATTUM (Respondent) APPLICATION NUMBER: APL327-14 MATTER TYPE: Application and appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Carmody DELIVERED ON: 4 April 2016 DELIVERED AT: Brisbane ORDERS MADE: THE APPEAL TRIBUNAL ORDERS THAT: 1. The applicant pay the respondent its costs of and incidental to the proceedings APL327-14 and APL 550-13 in an amount to be assessed on the District Court Scale, as agreed, or if not agreed, as assessed by a duly accredited costs assessor nominated by the Principal Registrar. CATCHWORDS: APPEAL – LEAVE TO APPEAL – where application to extend time limit for QCAT appeal refused – whether the respondent should be awarded its costs. Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 100, 102 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412. APPEARANCES and REPRESENTATIVES (if any): The claim for costs was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). -- 1 of 2 -- 2 REASONS FOR DECISION [1] By decision on 15 March 2016, the Tribunal refused the applicants’ application for leave against a refusal to extend time. The parties were directed to file submissions as to costs. [2] The applicants submit no order should be made as to costs, while the respondent seeks an order that the applicant must pay its costs. Generally, each party must bear their own costs1 unless this rule is displaced in the interests of justice.2 [3] It is true the application involved complex questions of law sufficient to justify legal representation and the decision had the beneficial effect of adding to the Tribunal’s jurisprudence and clarifies the statutory meaning.3 This weighs in favour of the applicant’s claim that no costs should be awarded, but while not devoid of merit, the point taken was a highly technical and dubious one. [4] The applicant also submits the respondent is better equipped to bear costs because the burden can be shared between six lot owners.4 [5] However, the applicants were the ones who made the application to this Tribunal and were wholly unsuccessful.5 The application was filed more than two years late. Moreover, the applicants have repeatedly failed to comply with timeframes throughout these proceedings, and changed position more than once, causing the respondent to incur needless additional preparation costs.6 [6] For these reasons, I consider awarding costs of the proceedings to the respondent is in the interests of justice, including those incurred in APL550- 13 by Senior Member Stilgoe OAM. ORDERS [7] It is the decision of the Tribunal that: 1. The applicants pay the respondent its costs of an incidental to the proceedings APL327-14 and APL 550-13 in an amount to be assessed on the District Court Scale, as agreed, or if not agreed, as assessed by a duly accredited costs assessor nominated by the Principal Registrar. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100. 2 Ibid s 102. 3 Ibid s 102(3)(b); see reasons at [3]. 4 Ibid s 102(3)(e). 5 Ibid s 102(3)(c). 6 Ibid s 102(3)(a); Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412. -- 2 of 2 --