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Glen Ross Properties Pty Ltd trading as GlenRossProperties.com v BGM Projects Pty Ltd[2016] QCAT 199

Glen Ross Properties Pty Ltd trading as GlenRossProperties.com v BGM Projects Pty Ltd[2016] QCAT 199

CITATION:

Glen Ross Properties Pty Ltd trading as GlenRossProperties.com v BGM Projects Pty Ltd [2016] QCAT 199

PARTIES:

Glen Ross Properties Pty Ltd trading as GlenRossProperties.com

(Applicant)

 

v

 

BGM Projects Pty Ltd

(Respondent)

APPLICATION NUMBER:

MCDO2240-14

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

28 July 2015. Written submissions filed 5 August 2015.

HEARD AT:

Brisbane

DECISION OF:

Member Favell

DELIVERED ON:

7 June 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application for costs is dismissed.

CATCHWORDS:

Other minor civil dispute matters - contracts -principal and agent - rights of agent against principal - remuneration or commission-matters disentitling agent to remuneration – where application made in Minor Civil Dispute Jurisdiction in the Queensland Civil and Administrative Tribunal- where application dismissed by consent - where application for costs made.

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 100, 102,103

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) rr 83, 84

APPEARANCES:

APPLICANT:

Glen Ross Properties Pty Ltd trading as GlenRossProperties.com

RESPONDENT:

BGM Projects Pty Ltd

REPRESENTATIVES:

APPLICANT:

N.M. Cooke of Counsel instructed by Mullins Lawyers

RESPONDENT:

R.A. Quirk of Counsel instructed by Mohr Keddy Lawyers

REASONS FOR DECISION

  1. [1]
    This application was an application in the minor civil dispute jurisdiction of the Tribunal. It was a claim associated with a claim for commission associated with the sale of various lots. Various questions arose concerning any appointment as an agent under the Property Agents and Motor Dealers Act 2000 (Qld) and whether the claimant was the effective cause of sale and entitled to commissions.
  2. [2]
    After the application was filed liquidators were appointed over the applicant on 31 October 2014. Mullins Lawyers were appointed to act for the liquidator. Subsequently applications were made seeking leave to be represented on the basis that there were complex matters of law and fact and the parties were in dispute as to both the facts and the law. Leave was granted.
  3. [3]
    On 17 February 2015 the solicitors for the respondent invited the applicant to withdraw its application by close of business that day.
  4. [4]
    When the matter was called on for hearing on 20 February 2015 as one of a number of matters listed for hearing that day the application was adjourned to a date to be fixed because of the time required to hear the application.
  5. [5]
    By that time the respondent had filed a Further Amended Response to the civil dispute on 15 January 2015 and in an Amended Outline of Argument filed on 20 February 2015 the respondent sought an order that the application be dismissed or struck out or alternatively, that the amount claimed $30,140.00 was not due or owing by the respondent to the applicant. In that amended outline issues of lack of appointment as an agent and whether the applicant could claim any commission because of the application of section 140 of the Property Agents and Motor Dealers Act 2000 (Qld) were raised for the first time.
  6. [6]
    When the matter was listed to be heard on 28 July 2015 the application was dismissed by consent. That order was made after the respondent made an application for summary dismissal on 24 July 2015 and the applicant on the same day made a counter application for dismissal of their own application.
  7. [7]
    After the application was dismissed by consent the respondent sought orders for costs against the solicitors for the applicant and the liquidators of the applicant on an indemnity basis.
  8. [8]
    Some lengthy submissions were made by both sides on 28 July 2015 and on 5 August 2015 a written submission on behalf of the applicant together with further material was filed.
  9. [9]
    The respondent relied on a submission that the applicant was at no time appointed as the agent of the respondent pursuant to s 133(1) of the Property Agents and Motor Dealers Act 2000 (Qld) and pursuant to s 140; “A person is not entitled to sue for, or recover or retain, a reward or expense for the performance of an activity as a real estate agent unless at the time the activity was performed the person held a real estate licence and was authorised under the persons licence to perform the activity and had been properly appointed under division 2 by the person to be charge with the reward or expense.”
  10. [10]
    It submitted that under section 140(2); “A person who sues for, or recovers or retains, a reward or expense for the performance of an activity as a real estate agent otherwise then as provided for (1) commits an offence.”
  11. [11]
    In the application to dismiss or have the application struck out the respondent had submitted that the liquidators of the applicant controlled the Applicant and continued the proceeding and because of the effect of section 140 a costs order should be made against them.
  12. [12]
    The Tribunal made no determination on the initial application or the subsequent application and counter application.
  13. [13]
    The respondent argued for indemnity costs orders against the liquidators and the solicitors for the applicant on the basis that they were representatives of the applicant and they, rather than the applicant were responsible for unnecessarily disadvantaging the respondent. They supported the argument with case references. They also argued that the continuing of the application was vexatious because once the amended outline was filed the application had no prospects of success. That claim was, in part, based on section 103 of the Queensland Civil and Administrative Tribunal Act 2009. (the QCAT Act)
  14. [14]
    The applicant resisted the application on the because the application was commenced before either the liquidator or the solicitor were appointed; the issues changed with the amended outline of argument; the respondents were advised before the cost hearing that the applicant did not want to proceed further; as a party is defined by section 39 of the QCAT Act the liquidator and the solicitor were not a party; the liquidator is not a representative and the applicant wanted to discontinue after it made a commercial decision to discontinue because of the costs and the comparative small claim. It argued that there should be no order as to costs or in the alternative the applicant should have the costs up to the date of filing the amended outline.
  15. [15]
    Section 100 of Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that other than as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) or an enabling act each party to a proceeding must bear the parties own costs for the proceeding.
  16. [16]
    Section 102(1) allows the Tribunal to 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.
  17. [17]
    Section 102(2) provides that 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 section 102.
  18. [18]
    Section 102(3) provides that in deciding whether to award costs the Tribunal may have regard to the following:
    1. (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)(2)(g);
    2. (b)
      the nature and complexity of the dispute the subject of the proceeding;
    3. (c)
      the relative strengths of the claims made by each of the parties to the proceeding;
    4. (d)
    5. (e)
      the financial circumstances of the parties to the proceeding;
    6. (f)
      anything else the tribunal considers relevant.
  19. [19]
    Section 103 allows the Tribunal, if it considers a representative of a party to a proceeding, rather than the party, is responsible for unnecessarily disadvantaging another party to the proceeding as mentioned in s 102(3)(a), to make a costs order requiring a representative to pay a stated amount to the other parties as compensation for the unnecessary costs.
  20. [20]
    Before making a costs order under s 103(1) the Tribunal must give the representative a reasonable opportunity to be heard in relation to making the order.
  21. [21]
    Rule 83 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) provides that for section 102 of the Act the Tribunal may award costs against a party to a proceeding for a minor civil dispute other than a minor debt claim –
    1. (a)
      only if the party is a respondent against whom the tribunal has made a final decision; and
    2. (b)
      only to order the party to pay to the applicant the amount of any prescribed fee p[aid by the applicant on filing the application for the proceeding.
  22. [22]
    Rule 84 allows the tribunal to award costs against a party to a proceeding for a minor debt claim only to order the party to pay an amount for one or more of the following –
  1. (a)
    prescribed fee for filing the application for the claim;
  1. (b)
    a fee charged by a service provider for electronically filing a document;
  1. (c)
    a service fee and travelling allowance at the rate of the prescribed bailiff fees;
  1. (d)
    a business name or company search fee.
  1. [23]
    The applicant submits that there is no power in the Tribunal to make any orders apart from the limited power set out above to make any orders against persons other than the parties.
  2. [24]
    In this matter the claim was filed as a minor civil dispute. The claims made for indemnity costs are not made against the respondent and the tribunal has not made a final decision against the respondent.
  3. [25]
    In my view, the tribunal, in the circumstances here where the claim is a made as a minor civil dispute the tribunal does not have the power to make the orders sought.
  4. [26]
    The application for costs is dismissed.
Close

Editorial Notes

  • Published Case Name:

    Glen Ross Properties Pty Ltd trading as GlenRossProperties.com v BGM Projects Pty Ltd

  • Shortened Case Name:

    Glen Ross Properties Pty Ltd trading as GlenRossProperties.com v BGM Projects Pty Ltd

  • MNC:

    [2016] QCAT 199

  • Court:

    QCAT

  • Judge(s):

    Member Favell

  • Date:

    07 Jun 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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