Fitzpatrick as trustee for the Fitzpatrick Discretionary Trust v Young
[2010] QCAT 408
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- Fitzpatrick as trustee for the Fitzpatrick Discretionary Trust v Young[2010] QCAT 408
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Fitzpatrick as trustee for the Fitzpatrick Discretionary Trust v Young[2010] QCAT 408
Fitzpatrick as trustee for the Fitzpatrick Discretionary Trust v Young[2010] QCAT 408
CITATION: | Fitzpatrick as Trustee for the Fitzpatrick Discretionary Trust v Young [2010] QCAT 408 |
PARTIES: | Nicole Fitzpatrick as Trustee for The Fitzpatrick Discretionary Trust |
v | |
Francis Joseph Young and Josephine Grace Young |
APPLICATION NUMBER: | RET019-09 |
MATTER TYPE: | Retail shop leases matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | A Forbes |
DELIVERED ON: | 24 August 2010 |
DELIVERED AT: | Brisbane |
ORDERS MADE:
|
|
CATCHWORDS : | Costs - Queensland Civil and Administrative Tribunal Act 2009 [“the QCAT Act”] section 100 each party…must bear the party’s own costs for the proceeding.” - section 102 (3) – interest of justice – relative strength in claim – claim lacking in substance – costs awarded. |
APPEARANCES and REPRESENTATION (if any):
Decision was on the papers. |
REASONS FOR DECISION
- The Applicant Tenant’s claim for compensation was dismissed on 13 July 2010. The Respondent who was legally represented, now applies for its costs of and incidental to the claim to be assessed on a solicitor own client basis. Both parties have delivered submissions on costs.
- The starting point for any consideration of costs under the Queensland Civil and Administrative Tribunal Act 2009 [“the QCAT Act”] is section 100 which imposes the mandatory requirement that “ each party…must bear the party’s own costs for the proceeding.”
- The interests of justice may override section 100 and enliven the tribunal’s discretion to order all or part of a party’s costs to be paid by the other party in the “interests of justice”. The Act specifies a number of factors to guide the tribunal in considering the interests of justice: section 102(3) casts a wide net and includes:
- whether the party caused disadvantage to the other party in various ways ;
- the complexity of the dispute;
- the relative strengths of the claims; and the financial circumstances of the parties.
The Submissions
- The Respondent’s solicitor states that:
- his client is a widow of advanced years with impaired hearing and reading and who would not have been able to represent herself, let alone understand the legal concepts raised in the claim. He submits that the leave given for legal representation was justified and necessary;
- The Respondent’s financial position is “of a fixed nature”. No details are provided of the Respondent’s financial circumstances; and
- The tribunal found that the claim was lacking in substance.
- For its part the Applicant defends the claim as follows:
- Its conduct during the course of the proceeding did not cause any disadvantage to the Respondent;
- The claim was not complex and did not warrant the Respondent obtaining legal representation; and
- The Applicant is a small business operator coping with difficult trading conditions.
Consideration of the submissions:
- The Applicant’s claim was for compensation of about $140,000. It was clearly an ambit claim. The tribunal dismissed the claim, finding it lacking in substance on several grounds set out in paragraphs 18-21 of the reasons for the decision. While not qualifying as a vexatious claim, it simply should not have been brought. I find that defending a claim in this amount without the assistance of a lawyer would have been beyond the capacity of the Respondent, and therefore that legal representation was warranted.
- I am satisfied that the Respondent is entitled to her costs, however no reason has been advanced on her behalf why she should be awarded costs on a solicitor own client basis.
Accordingly it is ordered that:
- The Applicant pay the Respondent’s costs of these proceedings on a standard basis to be assessed on the District Court scale of costs.
- The Respondent deliver to the Applicant an itemised claim for costs referring to the relevant items contained in the District Court scale of costs.
- If within 14 days of that delivery, the parties have not agreed to an amount of costs, the costs shall be assessed by a legal costs assessor nominated by the Respondent’s solicitor.
- The Applicant shall pay the Respondent’s costs (as agreed or assessed) within 14 days of such agreement or assessment.