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The Sands Gold Coast Pty Ltd v Body Corporate for The Sands Community[2016] QCAT 270

The Sands Gold Coast Pty Ltd v Body Corporate for The Sands Community[2016] QCAT 270

CITATION:

The Sands Gold Coast Pty Ltd v Body Corporate for The Sands Community [2016] QCAT 270

PARTIES:

The Sands Gold Coast Pty Ltd

(Applicant)

v

Body Corporate for The Sands Community Titles Scheme 14967

(Respondent)

APPLICATION NUMBER:

OCL039-15

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Member Hughes

DELIVERED ON:

22 July 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application for miscellaneous matters filed 17 February 2016 is dismissed.

CATCHWORDS:

FINAL DECISION ON SUMMARY BASIS –  UNNECESSARY DISADVANTAGE – whether Tribunal can make final orders not sought in originating application – where response not given in accordance with Tribunal directions - whether genuine dispute – where principal claim already paid – where remaining issues confined to interest and costs – where Tribunal does not have wide statutory discretion to award interest – where strong indicator against costs

COSTS – whether order for costs to compensate for failure to comply with Tribunal directions – where not appropriate to award costs to either party based on conduct of proceedings – where delay in complying with directions - where each party must take care and act quickly in dealings with Tribunal – where directions not unclear or difficult to understand – where no apparent disadvantage other than delay in resolving costs and modest amount of interest – where no evidence of costs – where recoverable costs likely to be modest given principal claim paid within short period of commencing proceedings – where strength of claims equivocal – where final orders on summary basis always unlikely given discretionary basis of interest and costs – where costs of application disproportionate to amounts in dispute

Civil Proceedings Act 2011(Qld), ss 5, 58, 9

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 3, 4, 28, 45, 47, 48, 100, 102, Schedule 3

Amjad Enterprises Pty Ltd v. Crux Investments Pty Ltd [2013] QCAT 203

Body Corporate for Sunnybank v. Coming Home Pty Ltd ATF The Coming Home Trust [2014] QCAT 192

Boost Foods Pty Ltd v. Blu Oak Pty Ltd & Ors [2014] QSC 171

General Steel Industries Inc. v. Commissioner for Railways (NSW) (1964) 112 CLR 125

Glamoren Pty Ltd t/as Keyline Realty v. Lee [2012] QCATA 176

M v. Dental Board of Queensland [2012] QCAT 222

McGrath v. Scott [2012] QCATA 57

Moreton Island Development Group v. Smith Development Pty Ltd [2012] QCATA 15

Ralacom Pty Ltd v. Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412

The Sands Gold Coast Pty Ltd v. Body Corporate for the Sands CTS 14967 [2016] QCAT 69

XMR Holdings Pty Ltd v. Body Corporate for Xanadu CTS 26361 & Ors [2016] QCAT 27

APPEARANCES and REPRESENTATION (if any):

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

What is this Application about?

  1. [1]
    Despite The Body Corporate For The Sands Community Titles Scheme 14967 paying the full amount of The Sands Gold Coast Pty Ltd’s principal claim of $8,414.02 within seven days of Sands’ originating application,[1] the proceedings have continued.
  2. [2]
    Sands has applied to the Tribunal for a “final decision in favour of the applicant against the respondent”. More specifically, Sands wants the Tribunal to award interest of $38.14, declare tax invoices issued by the Body Corporate are invalid, direct the Body Corporate to record certain minutes in its next committee meeting, direct the Body Corporate to include on the agenda a motion about permitting the The Sands to use signs and that the Body Corporate pay Sands’ costs.
  3. [3]
    The Body Corporate responded that the application is misconceived and wants the Tribunal to award its costs in responding to the application.

What final decision can the Tribunal make?

  1. [4]
    Because Sands is seeking final orders without a hearing on the merits of the dispute, it is seeking summary relief.
  2. [5]
    Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) relevantly provides (my emphasis):
    1. (1)
      This section applies if the tribunal considers a proceeding or part of a proceeding is:
      1. frivolous, vexatious or misconceived;
      2. lacking in substance; or
      3. otherwise an abuse of process.
    2. (2)
      The Tribunal may –
      1. if the party who brought the proceeding or part before the tribunal is the applicant for the proceeding, order the proceeding or part be dismissed or struck out; or
      2. for a part of a proceeding brought before the tribunal by a party other than the applicant for the proceeding –

      (i) make its final decision in the proceeding in the applicant’s favour; or

      (ii) order that the party who brought the part before the tribunal be removed from the proceeding; or

      1. make a costs order against the party who brought the proceeding or part before the tribunal to compensate another party for any reasonable cost, expense, loss, inconvenience and embarrassment resulting from the proceeding or part.
  3. [6]
    Similarly, section 48 relevantly provides (my emphasis):
    1. (1)
      This section applies if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by –
      1. not complying with a tribunal order or direction without reasonable excuse;

  1. (2)
    The tribunal may –
  1. if the party causing the disadvantage is the applicant for the proceeding, order the proceeding be dismissed or struck out; or
  2. if the party causing the disadvantage is not the applicant for the proceeding –

(i) make its final decision in the proceeding in the applicant’s favour; or

(ii) order that the party who brought the part before the tribunal be removed from the proceeding; or

  1. make an order under section 102, against the party causing the disadvantage, to compensate another party for any reasonable costs incurred unnecessarily.
  1. [7]
    The ‘part of the proceeding’ or ‘disadvantage’ is the Body Corporate’s failure to file and give to Sands a response to the application, as directed by the Tribunal. Because this was by a party other than the applicant, the Tribunal’s power is specifically limited by section 47(2)(b)(i) and section 48(2)(b)(i) to making its ‘final decision in the proceeding’ in favour of Sands.[2]
  2. [8]
    The proceeding before the Tribunal[3] is the originating application[4] filed by Sands. That originating application sought only $8,414.02, interest and costs.[5] Accordingly, the Tribunal’s power to make final orders on a summary basis does not extend to the declaratory orders sought by Sands in this application. Sands did not seek them in its originating application and they are not part of the ‘proceeding’ before the Tribunal.
  3. [9]
    The Tribunal therefore does not have power to make the declaratory orders sought by Sands as part of this application. Rather, the Tribunal is confined to making a final decision to resolve the issues of the principal amount claimed, interest and costs.

Is there a genuine dispute?

  1. [10]
    In deciding whether to make final orders on a summary basis, the Tribunal focuses on whether the Body Corporate had no real prospect of successfully defending all or part of the claim and no need for a hearing – that is, whether there is a ‘genuine dispute’ or a ‘real and substantial contest’.[6]

Is there a genuine dispute about the principal amount claimed?

  1. [11]
    Sands did not refute the Body Corporate having paid the principal amount claimed of $8,414.02, within seven days of the originating application. There is therefore a genuine dispute about whether the principal claim is still owing.

Is there a genuine dispute about interest?

  1. [12]
    Sands also claimed interest “pursuant to section 58 of the Civil Proceedings Act 2008.[7] However, only a ‘court’ may award interest under this provision. ‘Court’ for this purpose is defined as the Supreme Court, District Court or Magistrates Courts.[8] Unlike these Courts,[9] the Tribunal does not have a wide statutory discretion to award interest.[10]
  2. [13]
    Sands pleaded its principal claim in the alternative as damages for breach of contract,[11] money due and owing under a management agreement and maintenance agreement[12] or for goods and services supplied.[13]
  3. [14]
    As a creature of statute, the Tribunal must be given a specific power to award interest on compensation or damages. If the claim for interest is contractual, the Tribunal may award interest at a rate specified in the contract. However, Sands does not appear to have claimed interest on this basis.
  4. [15]
    There is a distinction between deciding whether there is a genuine dispute and actually deciding the merits of the dispute.[14] Without deciding the issue of interest, it is clear that there would be a genuine dispute whether interest is payable.   

Is there a genuine dispute about the costs of the original application?

  1. [16]
    Costs in the Tribunal are not awarded as a matter of course. Each party must pay their own legal costs,[15] unless the interests of justice require the Tribunal to order a party to pay the costs of another party.[16]
  2. [17]
    There is therefore a strong indicator against awarding costs:

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.[17]

  1. [18]
    Because Sands has to overcome the threshold in sections 100 and 102 of the Act, costs do not follow the event. The Tribunal may regard prescribed circumstances.[18] The Tribunal’s discretion is broad.[19] Simply because the Body Corporate paid Sands’ principal claim does not necessarily warrant an award of costs in favour of Sands. Other factors include whether it was reasonable to initiate the originating application to procure payment, whether it was reasonable to continue the proceedings once the principal amount was paid and to what extent any costs were reasonably incurred.
  2. [19]
    The Body Corporate submitted that Sands did not reasonably incur costs where the principal claim was paid shortly after filing and the matter was not complex. Again, without deciding the issue, it is clear that there is a genuine dispute about whether and what costs are payable.

What orders should the Tribunal make?

  1. [20]
    Because there is a genuine dispute about the issues, the Tribunal is not satisfied to make final orders. However, the Tribunal is also empowered to make a costs order to compensate Sands for the Body Corporate’s failure to provide a response as directed by the Tribunal.[20]
  2. [21]
    The Body Corporate submitted that it is not appropriate to order costs because having largely represented itself, it is unfamiliar with Tribunal processes and its delay in providing a response did not unnecessarily disadvantage Sands. Instead, the Body Corporate submitted that the Tribunal should award its costs of having to respond to this application.
  3. [22]
    In my view, it is not appropriate to award costs to either party based on their conduct of these proceedings.
  4. [23]
    The Body Corporate failed to comply with Tribunal directions to provide a response by 24 July 2015 and then 15 January 2016. The first occasion was because the parties had attended a compulsory conference and were attempting to settle the matter. On the second occasion, the Body Corporate filed a response on 18 January 2016 but did not provide a copy to Sands. Failing to comply with directions is not to be taken lightly. Each party must take care in its dealings with the Tribunal.[21] Each party must act quickly in any dealing relevant to a proceeding.[22]
  5. [24]
    Although the Body Corporate was represented intermittently, the directions were not unclear or difficult to understand. The Body Corporate is involved in other proceedings in the Tribunal and cannot be considered to be entirely unfamiliar with Tribunal processes and procedures. In circumstances where the matter did not settle and Sands had not been given a response, it was not unreasonable for Sands to take action.
  6. [25]
    The real question is what action Sands should have taken. As the principal amount had already been paid, Sands suffered no apparent disadvantage other than the delay in resolving its claim for costs and modest amount of interest. Sands did not provide evidence of any costs incurred due to the delay. Any costs of its originating application recoverable on a standard basis are also likely to be modest, given its principal claim was paid within a short period of commencing proceedings.
  7. [26]
    The courts – and the Tribunal – are, with good reason, cautious before issuing final orders summarily.[23] The strength of Sands’ claims is equivocal. The declaratory orders sought as part of this application were not sought in the originating application and had no basis. At the time of filing this application, Sands would have known the principal amount of its claim had already been paid. Sands was always unlikely to procure final orders on a summary basis where the outstanding issues of interest and costs are, at best, usually a matter for the Tribunal’s discretion following a hearing on the merits.
  8. [27]
    The Tribunal is mandated to ensure proceedings are conducted speedily, with a minimum of expense and inconvenience.[24] It must encourage the early and economical resolution of disputes.[25]It must ensure proceedings are conducted in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice.[26]It must act with as little informality and technicality and with as much speed as proper consideration of the matter before it permits.[27]
  9. [28]
    Within this context, neither the strength nor the amount of the remaining claims to interest and costs warranted this application. The costs in bringing this application would appear to be disproportionate to the modest amounts still in dispute. If Sands was determined to progress the outstanding issues of interest and costs to a decision despite commercial reality, it could have applied for directions to have the matter heard on the papers with a timetable for submissions.[28] This would have allowed the parties to participate in a final determination of the remaining issues at minimal cost. 
  10. [29]
    Neither party’s conduct warrants an award of costs.
  11. [30]
    The application is dismissed. 

Footnotes

[1] Remittance and Payment Advices dated 2 June 2015, 9 June 2015, 9 June 2015 and 10 June 2015 attached to the Affidavit of Alexandra Elisabeth Rofe, solicitor, sworn 15 March 2016.

[2] The Sands Gold Coast Pty Ltd v. Body Corporate for the Sands CTS 14967 [2016] QCAT 69 at [28].

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld), Schedule 3 definition of ‘proceeding’.

[4] The Sands Gold Coast Pty Ltd v. Body Corporate for the Sands CTS 14967 [2016] QCAT 69 at [28].

[5] Statement of Claim filed 3 June 2015.

[6] Moreton Island Development Group v. Smith Development Pty Ltd [2012] QCATA 15 at [35] to [38].

[7] Statement of Claim filed 3 June 2015, paragraph 13(d).

[8] Civil Proceedings Act 2011, s 5 definition of ‘court’.

[9] Civil Proceedings Act 2011, ss 58, 59 and s 5 definition of ‘court’.

[10] Glamoren Pty Ltd t/as Keyline Realty v. Lee [2012] QCATA 176 at [18] per Wilson J; XMR Holdings Pty Ltd v. Body Corporate for Xanadu CTS 26361 & Ors [2016] QCAT 27 at [8] to [11].

[11] Statement of Claim filed 3 June 2015, paragraph 13(a).

[12] Statement of Claim filed 3 June 2015, paragraph 13(b).

[13] Statement of Claim filed 3 June 2015, paragraph 13(c).

[14] Amjad Enterprises Pty Ltd v. Crux Investments Pty Ltd [2013] QCAT 203 at [17].

[15] Queensland Civil and Administrative Tribunal Act 2009, section 100.

[16] Queensland Civil and Administrative Tribunal Act 2009, section 102.

[17] Ralacom Pty Ltd v. Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 at paragraph [29].

[18] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102(3).

[19] Body Corporate for Sunnybank v. Coming Home Pty Ltd ATF The Coming Home Trust [2014] QCAT 192 at paragraph [16].

[20] Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 47(2)(c), 48(2)(c).

[21] McGrath v. Scott [2012] QCATA 57 at [26].

[22] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 45.

[23] General Steel Industries Inc. v. Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at paragraph 10; Amjad Enterprises Pty Ltd v. Crux Investments Pty Ltd [2013] QCAT 203 at [17]; The Sands Gold Coast Pty Ltd v. Body Corporate for the Sands CTS 14967 [2016] QCAT 69 at [47] citing with approval Boost Foods Pty Ltd v. Blu Oak Pty Ltd & Ors [2014] QSC 171; M v. Dental Board of Queensland [2012] QCAT 222 at [8].

[24] Queensland Civil and Administrative Tribunal Act 2009, sections 3 and 4.

[25] Queensland Civil and Administrative Tribunal Act 2009, section 4(b).

[26] Queensland Civil and Administrative Tribunal Act 2009, section 4(c).

[27] Queensland Civil and Administrative Tribunal Act 2009, section 28(3)(d).

[28] Moreton Island Development Group v. Smith Development Pty Ltd [2012] QCATA 15 at [41].

Close

Editorial Notes

  • Published Case Name:

    The Sands Gold Coast Pty Ltd v Body Corporate for The Sands Community

  • Shortened Case Name:

    The Sands Gold Coast Pty Ltd v Body Corporate for The Sands Community

  • MNC:

    [2016] QCAT 270

  • Court:

    QCAT

  • Judge(s):

    Member Hughes

  • Date:

    22 Jul 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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