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- Unreported Judgment
Iveson v Scenic Rim Regional Council QCAT 324
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Iveson v Scenic Rim Regional Council & Anor (No 2)  QCAT 324
michael ronald iveson
SCENIC RIM REGIONAL COUNCIL
Other civil dispute matters
31 October 2019
On the papers
The Applicant pay the Second Respondent’s costs of the application to strike out proceedings from and including preparation of its solicitor’s affidavit and its submissions filed 25 January 2019 to be agreed between the parties within 14 days and otherwise to be assessed on the standard basis on the Magistrates Court scale of costs applicable to claims over $50,000.
PROCEDURE – CIVIL PROCEEDINGS – COSTS – INDEMNITY COSTS – PARTICULAR CASES – where the applicant’s claim struck out on the basis it was misconceived, lacking in substance or otherwise an abuse of process – where the second respondent sought costs of the application to dismiss on an indemnity basis – where applicant not legally represented on commencement of proceedings – where second respondent pursued an erroneous procedural defence in part – where appropriate order was that the applicant pay costs from date of filing of material clearly showing the case against the second respondent was without prospects – whether costs on an indemnity basis appropriate
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 100
Lyons v Dreamstarter Pty Ltd  QCATA 142
Seeiseo Pty Ltd v Body Corporate for Taralla Apartments CTS 15627  QCAT 10
B Smeed, Solicitor, Caxton Legal Centre
Colin Biggers & Paisley Lawyers
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
- Mr Iveson brought proceedings in the tribunal for compensation of $100,000 pursuant to the Manufactured Homes (Residential Parks) Act 2003 (Qld) (‘the Act’). He filed an application under the Act on 16 October 2018.
- Both respondents filed applications to strike out the proceedings pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’). The application by the second respondent SEQ Water was made on 23 November 2018.
- Mr Iveson’s application was dismissed after a hearing by order made 26 June 2019.
- The parties were given an opportunity to make submissions on costs. The first respondent has made no application for or submissions on costs. The second respondent SEQ Water applies for its costs on an indemnity basis against Mr Iveson. Mr Iveson has made submissions in response.
- Section 47 of the QCAT Act provides:
Dismissing, striking out or deciding if unjustified proceeding or part
- (1)This section applies if the tribunal considers a proceeding or a part of a proceeding is—
- (a)frivolous, vexatious or misconceived; or
- (b)lacking in substance; or
- (c)otherwise an abuse of process.
- (2)The tribunal may—
- (a)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;
- (c)make a costs order against the party who brought the proceeding or part before the tribunal to compensate another party for any reasonable costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding or part.
- In Seeiseo Pty Ltd v Body Corporate for Taralla Apartments CTS 15627, which was also a claim for costs pursuant to s 47 of the QCAT Act and which is relied upon by SEQ Water, I found the usual position in the tribunal that each party to a proceeding bear their own costs does not apply where proceedings are ended early under section 47. Section 100 of the QCAT Act provides that ‘other than as provided under this Act’ or an enabling Act, each party to a proceeding must bear the parties own costs of the proceeding.
- Section 47 is one such ‘other’ provision. The power in s 47(2)(c) is in general terms and allows the tribunal to make such order as to costs that is justified by the circumstances. As explained in Lyons v Dreamstarter Pty Ltd a discretion to award costs is a general discretion to be exercised judicially, not on irrelevant or extraneous considerations, but on facts connected with or leading up to the litigation.
- Accordingly the factors to be taken into account in deciding whether to make an order for costs may include the factors listed in s 102(3) of the QCAT Act.
- In the matter at hand SEQ Water says it was unnecessarily disadvantaged by Mr Iveson in that he commenced the application in circumstances where the Tribunal had no jurisdiction to deal with the application and he persisted with the proceeding after it became evident on material filed by the parties that the application was bound to fail. Despite that the applicant continued in his claim against SEQ Water by alleging the existence of an agreement between Mr Iveson and SEQ Water in his response to the application to strike out.
- Prior to the application being filed Mr Iveson was served with a document entitled ‘Notice of Termination of Occupation Licence’. It is referred to in a letter to Mr Iveson dated 16 May 2018 on letterhead paper. The letterhead is unusual. It bears the logos of both Scenic Rim Regional Council and SEQ Water. The letter refers to the Notice of Termination of Occupation Licence sent to Mr Iveson on 7 March 2018 requiring him to vacate his site by midnight 30 June 2018.
- The Notice of Termination of Occupation Licence is exhibited to the affidavit of Ms Yule filed on behalf of Scenic Rim Regional Council in the hearing of the application to strike out. That Notice was also on the joint logo headnote paper and states amongst other things:
Lake Moogerah is a key tourism drawcard and Council and Seqwater plan to proceed with developing their future vision for the site, including the development of a longer term masterplan for the caravan park for the benefit not only of the Scenic Rim community would also the wider general community as a whole.
- Both the Notice and the letter of 16 May 2018 were signed by the chief executive officers of both Scenic Rim and SEQ Water.
- Given the Notice and the letter it is not entirely surprising that Mr Iveson joined SEQ Water to the application. He was not legally represented at the time.
- SEQ Water did not file a response to the application. Instead it filed its application to strike out on 23 November 2018.
- There were two grounds relied on. First that Mr Iveson’s cabin was not a manufactured home within the meaning of the MH Act. Second concerning Mr Iveson’s failure to attempt dispute resolution prior to filing his application.
- That was followed by generally vague submissions from SEQ Water that SEQ Water was not a party to the arrangement with Mr Iveson ‘regarding the positioning of the Structure on the Site’.
- It was not until SEQ Water filed a reply to Mr Iveson’s response to the strike out application with supporting affidavit material on 25 January 2019 that SEQ Water clearly articulated its position why it was not an appropriate party, filing necessary material in support that should have persuaded Mr Iveson that his case against SEQ Water was flawed and bound to fail.
- Despite that, Mr Iveson needlessly continued against SEQ Water. He filed further affidavit material and simply ignored what was said by SEQ Water and the evidence filed on 25 January 2019.
- It is appropriate to make a cost order against Mr Iveson. He caused SEQ Water to incur costs needlessly in circumstances where it should have been clear, at least from the time SEQ Water filed the material on 25 January 2019, that his case against SEQ Water could not succeed.
- Given what I have said about the Notice of Termination and the letter of 16 May 2018 served shortly before commencement of the action and the erroneous pursuit of the dispute resolution issue, indemnity costs of the application are not appropriate. Instead SEQ Water should be given its costs of the application from and including preparation of its solicitor’s affidavit and its submissions filed 25 January 2019 on a standard basis.
- I have no material before me to fix those costs. It is appropriate therefore that they be assessed if they cannot be agreed on the Magistrates Court scale for matters over $50,000.
- Published Case Name:
Michael Ronald Iveson v Scenic Rim Regional Council and SEQ Water
- Shortened Case Name:
Iveson v Scenic Rim Regional Council
 QCAT 324
31 Oct 2019