TLL Investment Pty Ltd v The Body Corporate for The Grange (No 2)
[2018] QCAT 50
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- Unreported Judgment
- TLL Investment Pty Ltd v The Body Corporate for The Grange (No 2)[2018] QCAT 50
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TLL Investment Pty Ltd v The Body Corporate for The Grange (No 2)[2018] QCAT 50
TLL Investment Pty Ltd v The Body Corporate for The Grange (No 2)[2018] QCAT 50
CITATION: | TLL Investment Pty Ltd v The Body Corporate for The Grange (No 2) [2018] QCAT 50 |
PARTIES: | TLL Investment Pty Ltd (Applicant) v The Body Corporate for The Grange CTS 30993 (Respondent) |
APPLICATION NUMBER: | OCL038-17 |
MATTER TYPE: | Other civil dispute matters |
HEARING DATE: | 2 February 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Member Gardiner |
DELIVERED ON: | 1 March 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INTERLOCUTORY PROCEEDINGS – COSTS RESERVED – where interim order made previously – where costs reserved – where application for determination of cost previously reserved made – where final determination of the matter has not yet been made – whether re-opening – whether determination should be made at this stage Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 136, Schedule 3 Uniform Civil Procedure Rules 1999 (Qld), r 698 Carr v Finance Corporation of Australia Ltd (No 1) 147 CLR 246 Kingham v Yorkston [2002] Qd R 595 Robertson v Vlahos (No2) [2010] QSC 475 |
REPRESENTATIVES: |
|
APPLICANT: | Mr Kidston of Counsel |
RESPONDENT: | Mr Faulkner of Counsel |
REASONS FOR DECISION
- [1]“The Grange” is a residential community title scheme situated in outer Brisbane. TLL Investment Pty Ltd is a caretaking service contractor and letting agent for the Scheme.
- [2]There remains an apparently intractable dispute over the performance of duties under the Caretaking Agreements between the parties.
- [3]Orders were made on 20 December 2017 requiring the Body Corporate to pay to TLL the sum of $77,955.90 by 4.00pm on 22 December 2017. The Body Corporate was further ordered to continue to pay the sum due to TLL each month pursuant to the Caretaking Agreements, without set-off or deduction, until the determination of this proceeding, further order or agreement in writing of the parties.
- [4]An interlocutory application came before the Tribunal on 2 February 2018. All matters were dealt with that day except for an application to determine the costs reserved by order of this Tribunal on 21 December 2017.
- [5]Directions were made for the filing of submissions with this outstanding matter to be dealt with on the papers not before 14 February 2018.
- [6]Costs on 20 December 2017 were reserved. It is this reservation that TLL now wishes to have determined.
- [7]TLL submits this is appropriate because:
- The outcome of the hearing will not have a bearing on the issue of the merits of the application.
- The learned member that heard the application is in a better position than the hearing member to determine the issue of costs.
- TLL ought not be prevented from recovering costs until the determination of the hearing as doing so undermines the primary relief that was sought and granted aimed at addressing its cash flow problems and the financial predicament caused by the Body Corporate’s conduct.
- Delaying the determination of costs will see TLL further denuded of funds it needs to contest the final hearing.
- There is no good reason to delay the determination of the issue of costs.
- [8]In its submissions, the Body Corporate first addresses whether the order to reserve costs of the December application should be re-considered. It says:
- At the end of hearing of the December 2017 application, the nature of the costs order was discussed with counsel. Both counsel agreed that costs of the December application be reserved. The draft orders proposed by TLL sought reserved costs as did the draft order proposed by the Body Corporate.
- The order that costs be reserved was the only matter upon which the parties agreed, making that part of the order by consent.
- The order made on 20 December 2017, was a final decision.[1]
- Reserved costs are not specifically provided for within the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and are not defined.
- When an order on an interim application is made to reserve costs it means that those costs, if any,[2] will be determined at the final hearing.
- This is consistent with rule 698 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), which provides that reserved costs of an application follow the event unless otherwise ordered.[3] Otherwise ordered means otherwise ordered by the member determining the matter at the final hearing.[4]
- The order to reserve costs on the December application, whether by consent or otherwise, was a final order on an interlocutory or interim application in QCAT finally determining, in that sense, the application before it, including costs.
- [9]It is the submission of the Body Corporate that the order of 20 December 2017 was a final decision. What TLL now seeks is a re-opening as although the December application was an interim or interlocutory application, it falls within the definition of “proceeding” contained in section 136 of the QCAT Act.
- [10]“Proceeding” is defined in Schedule 3 to the QCAT Act as follows:
- (a)generally – means a proceeding before the tribunal, including an appeal before the appeal tribunal and a proceeding relating to an application for leave to appeal to the appeal tribunal…
- [11]The general definition in Schedule 3 is subject to a more specific definition for the purposes of Chapter 2 Division 7. Section 136 provides that Chapter 2 Division 7 applies to a “proceeding”, other than an appeal.
- [12]TLL submits it does not seek to “reopen” the costs order made on 20 December 2017 and there is no issue of jurisdiction to be considered.
- [13]TLL submits a reserved costs order is an interlocutory order and does not finally determine any of the parties' rights.[5]
- [14]Rather, TLL says it seeks to have the issue of the costs of the application heard on 20 December 2017 that were reserved at the time determined by the Tribunal.
Discussion
- [15]I agree with the submission of TLL insofar as it relates to the characterisation of the costs decision.
- [16]I do not accept the costs decision is a final order. I do accept (in line with rule 698 of the UCPR) that reserved costs are determined by the Tribunal at the final hearing unless earlier ordered.
Should the costs be now determined?
- [17]Returning to the submissions of TLL, I do not accept that the outcome of the hearing will not have a bearing on the issue of the merits of the costs application. The Body Corporate may have legitimate reasons why the contract should not be honoured. This is a matter for the final determination and was beyond the scope of the December 2017 hearing.
- [18]The balance of convenience favoured the granting of the injunction as the risk was that a great injustice may be caused to TLL because of the financial ramifications of non-payment of the caretaking fees.
- [19]That decision does not finally determine the argument between the parties. It merely allows the argument to progress to a hearing. A final costs determination will be made by the learned member after all issues are ventilated.
- [20]I do not accept this tribunal is in a better position than the hearing member to determine the issue of costs of the interlocutory matter. Rather, I accept the member hearing the final matter with all the facts and issues before that Tribunal is more likely to be in a position to accord justice between these parties on this costs determination.
- [21]In my view, this reason alone is sufficient to dismiss this application.
- [22]I accept that both parties are expending substantial fees to argue this matter. However, as with any litigation, the issue of costs will be determined after the final decision is made – and is dependent on that outcome.
- [23]This is not the time to determine the reserved costs.
- [24]The application is dismissed. The order reserving the costs made last December 2017 remains in force.