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Group Five Pty Ltd v Body Corporate for Cairns Golden Sands[2018] QCAT 372

Group Five Pty Ltd v Body Corporate for Cairns Golden Sands[2018] QCAT 372

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Group Five Pty Ltd v Body Corporate for Cairns Golden Sands [2018] QCAT 372

PARTIES:

GROUP FIVE PTY LTD

(applicant)

 

v

 

BODY CORPORATE FOR CAIRNS GOLDEN SANDS CTS 17890

(respondent)

APPLICATION NO:

OCL053-16

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

5 November 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

There is no order as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – GENERALLY – where enabling Act does not empower QCAT to award costs – whether interests of justice require order for costs – consideration of factors under s 102(3) of Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether party acted in a way that unnecessarily disadvantaged another party – consideration of nature and complexity of the dispute – consideration of the relative strengths of the claims made by the parties – consideration  of the financial circumstances of the parties – consideration of ‘anything else the tribunal considers relevant’ – where no order for costs

Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364

Queensland Racing Integrity Commission v Vale [2017] QCATA 110

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

Samimi v Queensland Building Services Authority [2012] QCAT 133

State of Queensland & Anor v Bell [2016] QCATA 176

Tamawood Ltd & Anor v Paans [2005] 2 Qd R 101

Turner v Macrossan & Amiet Pty Ltd (No 2) [2016] QCAT 255

Body Corporate and Community Management (Accommodation Module) Regulation 2008, s 129

Body Corporate and Community Management Act 1997 (Qld), s 126, Schedule 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 74, s 74(1), s 74(2)(a), s 100, s 102(1), s 102(3), s 102(3)(a), s 102(3)(f)

REPRESENTATION:

 

Applicant:

Mahoneys

Respondent:

Devenish Law

APPEARANCES:

 

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

  1. [1]
    This proceeding involves a dispute between Group Five as caretaking services contractor for Cairns Golden Sands, a scheme comprising 32 lots, and the body corporate for the scheme. The parties had entered into a Management and Letting Agreement (‘the Agreement’). The body corporate issued to Group Five a Remedial Action Notice (‘the RAN’) pursuant to s 129 of the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (the Module) outlining what the body corporate said were breaches by Group Five of the Agreement. Group Five filed an Application to resolve a complex dispute (‘the Application’).  By consent the tribunal granted an injunction restraining the body corporate from terminating or attempting to terminate the Agreement based upon the RAN.[1] On 13 December 2017 the tribunal, by consent, set aside the RAN, ordered the Application be dismissed and directed the parties to file submissions on costs.
  2. [2]
    The costs of the proceeding now fall for determination.

The background

  1. [3]
    The parties entered into the Agreement in June 2014. On 11 July 2016, the body corporate delivered to Group Five the RAN. The RAN asserted:
    1. (a)
      Breaches by Group Five of the Agreement relating to cleaning and maintenance of various parts of the common property including the bin area, the basement, the lift, the reception area, the grounds, the pool area, access ways and footpaths and toilets;
    2. (b)
      The failure by Group Five to report various by-law breaches;
    3. (c)
      The failure by Group Five to obtain quotes for required maintenance works;
    4. (d)
      The failure by Group Five to carry out directions issued by the body corporate;
    5. (e)
      The failure by Group Five to report to the body corporate committee various hazardous or dangerous matters;
    6. (f)
      The failure by Group Five to adequately staff and maintain the reception area;
    7. (g)
      The dumping of green waste by Group Five in contravention of council local laws;
    8. (h)
      The failure by Group Five to operate a restaurant from the manager’s unit;
    9. (i)
      The failure by Group Five to confer with the body corporate’s representative;
    10. (j)
      Various breaches of the code of conduct for body corporate managers and caretaking service contractors,[2] relying upon the previously identified breaches, and in not acting in the best interests of the body corporate.
  2. [4]
    On 24 August 2016 the solicitors for the body corporate gave notice to Group Five’s financier pursuant to s 126 of the Body Corporate and Community Management Act 1997 (Qld). The notice asserted the body corporate’s right to terminate the Agreement based upon Group Five’s failure to comply with the RAN. On 7 September 2016 the body corporate gave notice to lot owners of an EGM scheduled for 4 October 2016.  The only item on the EGM agenda was the termination of the Agreement.
  3. [5]
    On 23 September 2016 Group Five filed the Application. Group Five also filed an application for interim injunctive relief to restrain the body corporate from terminating or attempting to terminate the Agreement.
  4. [6]
    On 27 September 2016 orders by consent were made granting the interim injunctive relief sought by Group Five. The tribunal made directions for the filing of statements of evidence by the parties and for a compulsory conference to be held.
  5. [7]
    The compulsory conference was held on 23 January 2017. Directions were thereafter made for the parties to file statements of evidence upon which they sought to rely. By consent, the time for compliance with the directions was varied from time to time. Ultimately on 13 December 2017, at a directions hearing, orders were made by consent setting aside the RAN and dismissing the Application. 

What do the parties say?

  1. [8]
    Group Five says that the proceedings were complex with each party being legally represented. Group Five says that unless it had commenced the proceedings, the Agreement would have been terminated and it would have suffered significant financial losses. Ultimately, says Group Five, it was wholly successful in obtaining the relief it had sought. Group Five seeks its costs of the proceeding to be assessed on the District Court scale.
  2. [9]
    The body corporate says that the parties agreed to resolve all issues in dispute and had entered into a settlement deed (‘the settlement deed’) after the filing of the Application. The body corporate says that if Group Five had performed its obligations under the settlement deed, then by operation of the provisions of the deed, the proceeding would have been dismissed with no order as to costs. The body corporate refers to allegedly unlawful conduct by the director of Group Five, Mr Ali, relating to the recording of private conversations of the body corporate chairperson. Group Five, says the body corporate, caused the proceedings to be protracted by making several requests for extensions of time to comply with tribunal directions. The body corporate says that the proceeding has been infected in its entirety by the unlawful conduct of Mr Ali and that Group Five should be ordered to pay the body corporate’s costs or that each party should bear their own costs. 

Costs in tribunal proceedings

  1. [10]
    Unless the Queensland Civil and Administrative Tribunal Act 2009 (Qld) or an enabling Act provides otherwise, the parties to proceedings in the tribunal must bear their own costs.[3] The tribunal may however order a party to pay all or some of another party’s costs if the tribunal considers the interests of justice require the making of such an order.[4] 
  2. [11]
    In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) then President of QCAT, Alan Wilson J held in relation to the meaning of the phrase ‘in the interests of justice’ as found in s 102(1):

The phrase “in the interests of justice” is not defined in the Act but is to be construed according to its ordinary and plain meaning, which obviously confers a broad discretionary power on the decision-maker.[5]

  1. [12]
    His honour observed:

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.[6]

  1. [13]
    In deciding whether to award costs the tribunal may have regard to a number of matters set out in s 102(3) of the QCAT Act:
  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) to (g);
  1. (b)
    the nature and complexity of the dispute the subject of the proceeding;
  1. (c)
    the relative strengths of the claims made by each of the parties to the proceeding;
  1. (d)
    …
  1. (e)
    the financial circumstances of the parties to the proceeding;
  1. (f)
    anything else the tribunal considers relevant.
  1. [14]
    The provisions of s 102(3) are not grounds for awarding costs, merely factors the tribunal may take into consideration.[7]

Consideration

  1. [15]
    The relevant enabling Act in this proceeding is the BCCM Act. The BCCM Act does not confer upon the tribunal a specific power to award costs. Accordingly, costs fall for determination under the costs provisions found in Chapter 2, Part 6, Division 6 of the QCAT Act. 
  2. [16]
    I will address the matters for consideration set out in s 102(3) of the QCAT Act.

Section 102(3)(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)

  1. [17]
    The body corporate asserts that Group Five caused the proceedings to be protracted by making several requests for extensions of time. The relevant history is that the applicant and respondent were initially directed to file their respective statements of evidence by, respectively, 11 November 2016 and 2 December 2016.[8] By consent the dates for the filing of evidence were extended.[9] By consent the dates were further extended.[10] No directions were made following the compulsory conference held in January 2017 with the next step in the proceeding being the filing of an Application for miscellaneous matters by Group Five on 8 May 2017 seeking orders for the payment by the body corporate of the remuneration payable under the Agreement. By orders made 23 May 2017, the costs of that application were reserved. A further application for miscellaneous matters was filed by Group Five on 6 June 2017 seeking to enforce the payment by the body corporate of an agreed remuneration amount. At a directions hearing on 6 June 2017 the application was dismissed with no order as to costs. The parties were again directed to file their statements of evidence. The parties did not do so. At a directions hearing on 15 August 2017 the parties informed the Tribunal that a general meeting of the body corporate was to be called to address a motion to have a settlement deed executed to resolve the matters in dispute. The matter was listed for a further directions hearing on 12 September 2017. Following two further directions hearings, at a directions hearing on 13 December 2017 the orders were made setting aside the RAN and dismissing the Application.
  2. [18]
    Many of the extensions of time to comply with directions and which were granted by the tribunal were sought jointly by the parties. As I have observed, at no time (apart from the statement by Mr Ali accompanying the Application and statements by Mr Ali and Group Five’s solicitor relating to the remuneration application) has either party filed statements of evidence. The body corporate’s submission that Group Five protracted the proceeding through requests for extensions of time is not further elaborated upon. If what the body corporate is referring to are the various applications by the parties for orders by consent then, in the absence of more detailed submissions or evidence from the body corporate, it is difficult to see why Group Five should be visited with a costs order on the basis of any asserted delay.
  3. [19]
    Group Five refers to the failure by the body corporate to pay the remuneration to which it was entitled under the Agreement as ‘tantamount to termination of the caretaking agreement.’ The body corporate, says Group Five, was ‘happy for Group Five to incur the costs associated with progressing the proceeding and then sought to make that task more difficult by starving Group Five of funds.’ As I have outlined Group Five brought two interlocutory applications in respect of the actions of the body corporate complained of. The first application[11] sought orders for the payment by the body corporate of remuneration for the months of February, March and April 2017. The costs of the application were reserved.[12] The second application[13] sought the payment of a liquidated amount pursuant to a compromise entered into between the parties on 23 May 2017. By consent that application was dismissed with no order as to costs.
  4. [20]
    The costs of interlocutory applications may, in appropriate cases, be reserved in tribunal proceedings where it is considered for example that the question of such costs should be determined as part of any subsequent application for costs of the proceeding. The first application asserted that Group Five was being ‘starved of funds’ and sought orders that the entitlement of Group Five to remuneration be determined prior to the final hearing. No evidence was filed by the parties in the first interlocutory proceeding. It seems from the second interlocutory application that the parties entered into an agreement for the payment of monies by the body corporate to Group Five. The second application asserts a failure by the body corporate to pay the monies. It seems that the monies were paid and the second application was dismissed without costs.
  5. [21]
    Taken in isolation I am unable to conclude that, given the dearth of evidence, the circumstances that gave rise to the interlocutory applications to which I have referred are such that I can conclude the body corporate acted in a way that unnecessarily disadvantaged Group Five. Nevertheless, as the costs of the first application were reserved, I will consider this issue later in these reasons as part of my consideration of s 102(3)(f).
  6. [22]
    Subject to the stated reservation regarding the reserved costs of the first interlocutory application, I find that neither party acted in a way that unnecessarily disadvantaged the other including as mentioned in s 48(1)(a) to (g) of the QCAT Act.

Section 102(3)(b) – the nature and complexity of the dispute the subject of the proceeding 

  1. [23]
    At its most fundamental the dispute was about whether Group Five had performed its obligations under the Agreement and whether the body corporate was entitled to terminate the Agreement.
  2. [24]
    Group Five relies upon the decision of Carmody J in Queensland Racing Integrity Commission v Vale[14] where it was held:

[47] The nature of a proceeding could warrant a costs order even if it was not complex; but complexity alone will seldom suffice. Nonetheless, it has been held in a comparable context that barring the successful party from recovering costs that were reasonably necessary to achieve a satisfactory outcome would not usually be in the interests of justice.

[48] The applicant relies heavily on the permission to obtain legal representation as evidence of the complexity of case. Just because the granting of legal representation for an appeal was reasonable, desirable or beneficial does not make a case complex or of itself justify costs. The comparative complexity, circumstances and consequences of each case must be considered.

[49] The nature and complexity potentially cuts both ways and refers to the novelty of the issues; the level of public interest; the potential consequences; the degree of difficulty; how costs in the particular class of case has been dealt with historically; the purpose of the proceeding; whether there is a remedial or social aspect rather than purely commercial objective to the proceeding; how adversarial or inter partes the procedures were; and the subject matter and its value. Where disciplinary proceedings succeed and were brought to redress improper conduct, protect the public or by reason of a statutory duty, costs will generally follow the event. (footnotes omitted)

  1. [25]
    There is a distinction between the mere fact of having representation and the fact of having reasonably obtained that representation because of the complexity of the case.[15] Group Five says that the presence of lawyers is not of itself conclusive of complexity however it is a relevant factor to be taken into account in considering the complexity of the proceedings.
  2. [26]
    Group Five refers to the decision in Ralacom[16] noting that then QCAT President, Alan Wilson J, applied a similar process of reasoning to that undertaken in Tamawood in addressing the application of s 100 and s 102 of the QCAT Act. In Ralacom it was held:

29. 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.

30. I am satisfied that is the case here. As the voluminous supporting material indicated, the application brought in Ralacom’s name involved a complex history of disputes between it, and the body corporate. Urgent injunctive relief was sought, as was relief under the BCCMA, which on any view involved some complexity, and urgency, and warranted the instruction of solicitors and counsel by the body corporate. The standing of the company was unclear, and confused by the applicant’s failure to inform this tribunal about the real outcome of the Supreme Court Proceedings.

31. These are the matters of the kind referred to in ss 102(3)(a), (b) and (c) of the QCAT Act. In particular, the applicant’s failure to divulge, at the first hearing, the fact of the order of 9 June occurred in circumstances that may properly be categorised, at least, as conduct which unnecessarily disadvantages another party: s 102(3)(a). The body corporate was, in short, forced to appear at and resist misconceived and unauthorised proceedings. These factors point compellingly to the conclusion that the interests of justice warrant a costs award here, despite the principle set out in s 100. (footnotes omitted)

  1. [27]
    Group Five says that it was required to bring the proceeding to protect its legitimate financial interests under the Agreement and says that the body corporate has now effectively conceded that it did not have a proper basis on which to terminate the Agreement and has withdrawn the RAN. Group Five says that the management rights the subject of the Agreement are for sale for $795,000 and that, but for the exclusive jurisdiction of the Tribunal conferred by the BCCM Act, the application would have proceeded in the District Court for declaratory and injunctive relief.
  2. [28]
    Group Five says that the dispute is similar to that in Ralacom which was found to be of sufficient complexity to warrant an order for costs. Another indication of the complexity of the matter, says Group Five, is the voluminous nature of the statement of evidence of its principal witness, Mr Ali. 
  3. [29]
    The body corporate refers to Group Five’s submission, that the withdrawal of the RAN is a concession by the body corporate that it did not have a proper basis to terminate the Agreement, as ‘perverse’. The body corporate says that the management rights, the subject of the Agreement, have been for sale for almost two years and that the list price is ‘fanciful’ and demonstrates that Group Five has never had any serious intention of selling the rights.
  4. [30]
    The body corporate makes reference throughout its submissions to the settlement deed entered into by the parties in September 2017. The settlement deed is not before the Tribunal. No doubt the deed would provide additional context and meaning to the parties submissions. The body corporate also submits that the Tribunal should have reference to the terms of settlement entered into by the parties at the compulsory conference on 23 January 2017 (‘the terms of settlement’). Evidence of anything said or done during a compulsory conference for a proceeding is not admissible at any stage in the proceeding.[17] An exception to this prohibition is evidence that all parties to the proceeding have agreed may be admitted into evidence.[18] As the settlement deed is not before me, nor is there anything before me to suggest that the parties consent to the terms of settlement being admitted into evidence (nor is there any submission that the terms of settlement were negotiated and signed after the compulsory conference had concluded), I do not have reference to either document.
  5. [31]
    I accept that there was some degree of complexity in respect of the dispute. Group Five was required to prepare material to support an application for interim injunctive relief to protect its interests under the Agreement. There is also no doubt that the factual matrix included a broad range of facts as is often the case in these types of disputes before the tribunal. However it does not follow that the questions of fact to be determined were complex. Unlike in Ralacom, the application by Group Five for interim injunctive relief was not contested. The parties consented to orders less than seven days after the filing of the Application and prior to the tribunal making any directions for the parties to file material or listing the injunction application for hearing. The extensive affidavit material by Mr Ali referred to by Group Five in its submissions was filed at the time of the originating application. As I have observed (and apart from the applications relating to the payment of remuneration) the parties filed no further evidence.
  6. [32]
    I am not persuaded the nature and complexity of the dispute were such that the interests of justice compel an order for costs.

Section 102(3)(c) – the relative strengths of the claims made by each of the parties

  1. [33]
    Group Five repeats its submission that the body corporate has ‘conceded the proceedings’ and that Group Five has been entirely successful. Group Five says that the Tribunal should infer that, notwithstanding the absence of a final determination of the matter, the relative strengths of the parties claims was firmly in favour of Group Five. The body corporate’s submissions do not specifically address s 102(3)(c).
  2. [34]
    It is true that the matter was resolved by final consent orders setting aside the RAN and otherwise dismissing the application to resolve a complex dispute. I am not however persuaded that this outcome is determinative of either the strength of Group Five’s claim or the weakness of the body corporate’s position. The body corporate says that the parties agreed to focus on resolving, rather than progressing, the litigation. Group Five on the other hand refers to the body corporate’s ‘unconditional surrender’.
  3. [35]
    Subject to what I have said about the statement material filed by Group Five, the parties did not file statements of evidence. It follows that the opportunity to test the evidence did not arise. The dispute was resolved by consent. There was no hearing. There are many and varied reasons why parties agree to resolve disputes, including the desire to avoid the expense and inconvenience of litigation. I am unable to conclude that Group Five’s position was of relative strength nor that the body corporate’s position was relatively weak. I am therefore unable to conclude that the relative strengths of the parties claims is such that the interests of justice compel an order for costs.

Section 102(3)(e) - The financial circumstances of the parties

  1. [36]
    Group Five refers to the decision in Queensland Racing Integrity Commission v Vale[19] and says that the impact upon it of funding the proceeding has been approximately $60,000; that the remuneration payable under the Agreement is the sole means of income of Mr Ali who has three dependent children; if costs are awarded against the body corporate, the costs will be paid proportionately amongst 32 lot owners. Group Five says that the conduct of the body corporate in forcing it to commence the proceedings and then withholding its salary has inflicted significant financial harm upon it to the extent that it is now forced to sell the management rights.
  2. [37]
    Whilst I accept that Group Five has incurred legal costs, there is no evidence before me of the matters referred to in Group Five’s submissions to support a finding that the sale of the management rights has been caused by the actions of the body corporate. 
  3. [38]
    I accept that the financial burden of an order for costs adverse to the body corporate will be borne by the lot owners. Without more however, the fact that the parties might enjoy very different financial circumstances is not of itself sufficient to justify an order for costs. As was observed in Vale a party is not entitled to costs simply for experiencing financial hardship generally or as a result of proceedings.
  4. [39]
    I am unpersuaded that this factor compels the conclusion that the interests of justice require an order for costs to be made.

Section 102(3)(f) – Anything else the tribunal considers relevant

  1. [40]
    Group Five refers to its success in the proceedings and the fact that it had legal representation as factors weighing in favour of an order for costs. As was observed in Tamawood the engagement of legal representatives for a complex case may be a sufficient basis for awarding costs in the absence of countervailing considerations.
  2. [41]
    However legal representation is not a basis, in and of itself, to justify an order for costs as being in the interests of justice. In Samimi v Queensland Building Services Authority[20] the tribunal held:

However, I do not think that just because it is reasonable to be legally represented, that costs must necessarily follow without some other compelling reason, such as a party being deprived of the benefit of an award by the need to pay legal costs, as discussed in Tamawood Limited & Anor v Paans.

  1. [42]
    Samimi was cited with approval in Turner v Macrossan & Amiet Pty Ltd (No 2)[21] where it was held:

[33]  The Tribunal is of the view that legal representation was required to ensure that the respondent secured a just result, having regard to the matters in dispute. Although this finding is not conclusive, it remains a significant factor in resolving the subject matter of the costs application.

[34] On balance, the novelty and complexity of the proceedings, relative strength of the respondent’s case and weakness of the applicant’s claim, and the fact that legal representation was required to achieve a just result, militate strongly in favour of ordering costs in favour of the respondent.

  1. [43]
    At no stage of the present proceeding was an order made granting the parties leave to be legally represented although the parties, and the tribunal, proceeded on the basis that the parties were entitled to be represented. I will therefore proceed on the basis that it was appropriate for the parties to be legally represented.
  2. [44]
    As I have observed, although it is a relevant factor to be taken into consideration, the fact that the parties were legally represented in the proceeding is not determinative of the question of costs. Although the dispute was of some complexity, the application for interim injunctive relief was resolved by way of consent orders and the lengthy affidavit by Mr Ali was filed at the commencement of the proceeding. The parties thereafter filed no evidence in the substantive proceeding. It seems that the parties were involved in negotiations during the course of the proceeding to resolve the issues in dispute which negotiations ultimately led to the final consent orders being made by the tribunal. It is relevant to note that directions were made on 27 September 2016, 24 October 2016, 23 November 2016, and 6 June 2017 for the parties to file the statements of evidence upon which they sought to rely. As I have observed, no evidence was filed by the parties. At the compulsory conference held on 23 January 2017 it appears that the parties reached a resolution of the dispute subject to agreed conditions. The matter was listed for a directions hearing on 15 August 2017, again on 12September 2017, again on 5 December 2017 and finally on 13 December 2017 when the final consent orders were made. It seems apparent that during this period the parties were taking active steps to attempt to resolve the matter. Accordingly, apart from the applications by Group Five relating to the payment of remuneration under the Agreement, the history of the matter appears to be one of a relative lack of progress of the proceedings in the tribunal, and the focus of the parties being upon resolving their dispute.
  3. [45]
    For these reasons, I am not persuaded that the fact that the parties were legally represented favours an order for costs.
  4. [46]
    I will now turn to other factors that may be relevant. The proceeding (aside the remuneration issue) could not be said to have been contested in an adversarial manner, vigorously, forcefully or fiercely.[22] The matter did not proceed to a final hearing and apart from the lengthy affidavit by Mr Ali there was no evidence filed by the parties. The outcome, while it involved the RAN being set aside, was one reached by agreement between the parties. There were no ‘fruits of victory’ for Group Five apart from it being entitled to the continued benefits of the rights and entitlements under the Agreement however I accept that this result has come at some expense to Group Five in the form of legal costs. 
  5. [47]
    The costs of the first remuneration application were reserved. Neither party addresses whether the issue of the reserved costs should be dealt with separately or as part of the determination of the costs of the substantive proceeding. In the absence of specific submissions I will deal with the reserved costs as part of the consideration of the costs of the proceeding. The first remuneration application filed 8 May 2017 sought orders that the question of the amount payable for remuneration for the months of February, March and April 2017 be determined separately and prior to the hearing and that the application be listed for an urgent oral hearing. The matter was listed for a directions hearing on 23 May 2017. The dispute the subject matter of the first remuneration application was resolved and the matter did not proceed to a hearing. The material filed in support of the application was modest. On balance I do not consider the reserved costs of the application filed 8 May 2017 to be a factor influencing whether an order for costs should be made in the substantive proceeding.
  6. [48]
    The final issue I will deal with are the submissions by the body corporate relating to conduct by Mr Ali resulting in Mr Ali being convicted in the Cairns Magistrates Court of offences under the Invasion of Privacy Act 1971 (Qld) after the final orders were made. The body corporate attaches to its submissions a transcript of the prosecutor’s submissions and the Magistrate’s sentencing remarks. The body corporate says that Mr Ali recorded private conversations of the body corporate chairman and that, as a result the body corporate may have suffered ‘practical legal prejudice’ and that the body corporate may have sought to terminate the Agreement on the basis of Mr Ali’s gross misconduct. In response Group Five submits that matters relating to Mr Ali’s conduct are irrelevant to the determination of costs.
  7. [49]
    The body corporate’s submission regarding Mr Ali’s actions is not framed by specific  reference to any of the matters set out at s 102(3). Whether Mr Ali might have acted in a way that has unnecessarily disadvantaged the body corporate pursuant to s 102(3)(a) or whether Mr Ali’s conduct might be a relevant consideration under s 102(3)(f), the highest the body corporate’s submission goes is to suggest that the body corporate may have acted in a different way in conducting the proceeding had the matter not been brought to a conclusion by the final consent orders. There is no evidence that Mr Ali’s conduct caused actual disadvantage to the body corporate as referred to in s 102(3)(a). I find that the conduct of Mr Ali is not relevant to the determination of costs.

Conclusion

  1. [50]
    I conclude that the interests of justice do not require an order for costs and I order accordingly.

Footnotes

[1]  Decision made 27 September 2016.

[2]  BCCM Act, schedule 2.

[3]  QCAT Act, s 100.

[4]  Ibid, s 102(1).

[5] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, [4].

[6]  Ibid, [29].

[7] Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364.

[8]  Directions made 27 September 2016.

[9]  Application for decision/order by consent filed 21 October 2016; Directions made 24 October 2016.

[10]  Application for decision/order by consent filed 23 November 2016; Directions made 23 November 2016.

[11]  Application filed 8 May 2017.

[12]  Directions made 23 May 2017.

[13]  Application filed 6 June 2017.

[14]  [2017] QCATA 110.

[15] Tamawood Ltd & Anor v Paans [2005] 2 Qd R 101.

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

[17]  QCAT Act, s 74(1).

[18]  Ibid, s 74(2)(a).

[19]  [2017] QCATA 110.

[20]  [2012] QCAT 133.

[21]  [2016] QCAT 255.

[22] State of Queensland & Anor v Bell [2016] QCATA 176.

Close

Editorial Notes

  • Published Case Name:

    Group Five Pty Ltd v Body Corporate for Cairns Golden Sands

  • Shortened Case Name:

    Group Five Pty Ltd v Body Corporate for Cairns Golden Sands

  • MNC:

    [2018] QCAT 372

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    05 Nov 2018

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364
2 citations
Jump To
Cite 1 - [2010] QCAT 364
Cite 2 - [2010] QCAT 364
Queensland Racing Integrity Commission v Vale [2017] QCATA 110
3 citations
Jump To
Cite 1 - [2017] QCATA 110
Cite 2 - [2017] QCATA 110
Cite 3 - [2017] QCATA 110
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
4 citations
Jump To
Cite 1 - [2010] QCAT 412
Cite 2 - [2010] QCAT 412
Cite 3 - [2010] QCAT 412
Cite 4 - [2010] QCAT 412
Samimi v Queensland Building Services Authority [2012] QCAT 133
2 citations
Jump To
Cite 1 - [2012] QCAT 133
Cite 2 - [2012] QCAT 133
State of Queensland v Bell [2016] QCATA 176
2 citations
Jump To
Cite 1 - [2016] QCATA 176
Cite 2 - [2016] QCATA 176
Tamawood Ltd v Paans[2005] 2 Qd R 101; [2005] QCA 111
2 citations
Jump To
Cite 1 - [2005] 2 Qd R 101
Cite 2 - [2005] 2 Qd R 101
Turner v Macrossan & Amiet Pty Ltd (No 2) [2016] QCAT 255
2 citations
Jump To
Cite 1 - [2016] QCAT 255
Cite 2 - [2016] QCAT 255

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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