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  4. Knox v Body Corporate for 19th Avenue CTS 6625 (No 2) - [2021] QCAT 368

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Knox v Body Corporate for 19th Avenue CTS 6625 (No 2)[2021] QCAT 368

Knox v Body Corporate for 19th Avenue CTS 6625 (No 2)[2021] QCAT 368

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Knox v Body Corporate for 19th Avenue CTS 6625 (No 2) [2021] QCAT 368

PARTIES:

ALISON KNOX

(applicant)

v

BODY CORPORATE FOR 19th AVENUE CTS 6625

(respondent)

APPLICATION NO/S:

ADL043-18

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

28 October 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

  1. The respondent is to pay one-half of the applicant’s costs of and incidental to the proceeding ADL043-18 to be agreed between the parties.
  2. Failing agreement between the parties of the applicant’s costs, the costs are to be assessed under r 87 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) by a costs assessor appointed by the Registrar of the Tribunal, on the standard basis on the District Court Scale of Costs.
  3. The respondent is to pay one-half of the applicant’s costs, as assessed or agreed, within sixty (60) days of such agreement or assessment.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL MATTERS – POWER TO AWARD COSTS GENERALLY – where the Tribunal found one of five contentions of discrimination to be proven – where the Tribunal ordered compensation and an apology – where both parties apply for their costs of the proceeding – where the Tribunal has the power to award costs under s 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) in the interests of justice – whether the interests of justice require a costs order – whether offer made under r 86 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) – whether any costs awarded should be discounted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 103, s 107

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 86, r 87

Cowen v Queensland Building and Construction Commission [2021] QCATA 103

Falconbridge Pty Ltd v Yarra CC [2005] VCAT 2449

Knox v Body Corporate for 19th Avenue CTS 6625 [2020] QCAT 497

Lowe v Victims of Crime Assistance Tribunal [2004] VCAT 1092

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

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

Styles v Murray Meats Pty Ltd [2005] VCAT 2142

Tamawood Ltd & Anor v Paans [2005] QCA 111

APPEARANCES &

REPRESENTATION:

 

Applicant:

B P Strangman instructed by Whitehead Crowther Lawyers

Respondent:

T Thomas instructed by ABKJ 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

  1. [1]
    On 17 December 2020 the Tribunal found one of five contentions of discrimination to be proven and ordered the respondent to pay the applicant compensation in the amount of $5,000.00 and to make a private apology.[1]
  2. [2]
    The applicant now seeks an order for costs in the amount of $32,754.50 or in the alternative an amount that the Tribunal deems reasonable and appropriate.[2] In support of the application for costs, it is argued as follows[3]:
    1. (a)
      There has been an adverse finding about the conduct of the respondent which amounted to discrimination;
    2. (b)
      It was not until the commencement of these proceedings that the respondent addressed four of the five complaints;
    3. (c)
      Both parties were granted leave to be legally represented and were in fact legally represented by both solicitor’s firm and counsel;
    4. (d)
      There was evidence before the Tribunal and it was found to be so at paragraph [117] of the reasons that the respondent had spent $665,000.00 on refurbishing its pool in 2016, yet it still maintained $1,000,000.00 in its bank account; and
    5. (e)
      Any costs order will be met by the 78 lot owners collectively.
  3. [3]
    The applicant refers to a number of factors that she says warrants the costs order such as, the nature and complexity of the dispute and the respondent’s financial circumstances. Further, the applicant says that without a costs order, the award of compensation will have been eroded.[4]
  4. [4]
    The applicant relies on the evidence of Jeffrey Crowther, Solicitor who attests to the amount of costs incurred by the applicant in relation to the proceeding including Solicitor’s costs and counsel’s fees that total approximately the amount of $39,237.70.[5]
  5. [5]
    On the other hand, the respondent, argues that the applicant was entirely unsuccessful on four of her five contentions and on the fifth contention was unsuccessful for the period from 2013 to 24 April 2019, inclusive. Further the respondent says that the applicant was only partially successful for the time after that.[6]
  6. [6]
    The respondent argues that it did not attend to four of the five points of access that were also the subject of the complaint but says that it committed to the four projects in April 2019, ten months before trial.[7] Further to that, the respondent says that the Tribunal found that Mr Knox was responsible for and/or contributed to any delay of the respondent in completing the disability work.[8]
  7. [7]
    Finally, the respondent says that it has been unnecessarily disadvantaged by the applicant’s conduct and consequently, it should be given its costs in the proceeding. Such costs the respondent says are to be agreed or assessed on the District Court Scale pursuant to r 87 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld).
  8. [8]
    Alternatively, the respondent seeks its costs from the date it offered compromise. Relevantly, on 20 February 2020, the respondent made an offer of compromise to the applicant on terms that each party would bear their own costs, the respondent would call a further meeting on 30 April 2020 to install a pool hoist and pass new by-laws that were designed to manage safety and operational concerns.[9]
  9. [9]
    The respondent relies on the evidence of Andrew Kyle, Solicitor and various exchanges of correspondence between the applicant and respondent including the offer of compromise made on 20 February 2020. Although Mr Kyle does not attest to the amount of costs incurred by the respondent in relation to this proceeding, I accept that the respondent by reason of it being legally represented in the matter has incurred costs including Solicitor’s costs and counsel’s fees.

Consideration

  1. [10]
    Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) provides that each party to a proceeding must bear the party’s own costs for the proceeding. There is power under s 102 of the Act to make an order requiring a party to a proceeding to pay costs of another party to the proceeding if the interests of justice require it.
  2. [11]
    Section 102(3) of the QCAT Act sets out a number of factors to which the tribunal may have regard in considering whether to make an order in respect of costs: whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding; the nature and complexity of the dispute; the relative strengths of the claims made by each party to the proceeding; whether the applicant genuinely attempted to enable and help the decision maker to make the decision on the merits; and the financial circumstances of the parties to the proceeding.
  3. [12]
    The power to award costs is discretionary.[10] An order for costs should not be too readily made.[11]
  4. [13]
    In Tamawood Ltd & Anor v Paans[12] Keane JA said that where the complexity of the matter justified legal representation, it would not be in the interests of justice to bar the successful party from recovering costs that were reasonably necessary to achieve a satisfactory outcome. In Tamawood, Keane JA, with whom the other members of the Court agreed, said:

There is a clear distinction, in terms of the interest of achieving justice, between the mere fact of having representation and the fact of having reasonably obtained that representation because of the complexity of the case. In the absence of countervailing considerations, where a party has reasonably incurred the cost of legal representation, and has been successful before the Tribunal, it could not rationally be said to be in the interests of justice to allow that success to be eroded by requiring that party to bear the costs of the representation which was reasonably necessary to achieve that outcome….[13]

  1. [14]
    In the present matter, the proceeding was complex and both parties were legally represented.
  2. [15]
    There are five contentions of indirect discrimination raised under the Anti-Discrimination Act 1991 (Qld). The Tribunal found at [136] that for each of Contentions 1, 2, 3 and 4, respectively, the necessary elements of s 11 of the Act have not been met because the term imposed by the respondent was reasonable in all of the circumstances of the matter. The Tribunal also found that if even the relevant term, as contended, in each of the four contentions was not reasonable, it is open for the Tribunal to find on the evidence that the discrimination was permitted under the Act on the grounds of unjustifiable hardship.[14]
  3. [16]
    In relation to Contention 5, the Tribunal found that after the EGM held on 24 April 2019, the term that Mrs Knox use the steps to access the swimming pool was not reasonable in all of the circumstances. Further to that, the Tribunal found that despite the approval of the motion by lot owners to approve the purpose and installation of a pool hoist, the expenditure for the pool hoist was not approved.[15]
  4. [17]
    I accept, as contended by the respondent, that the applicant was entirely unsuccessful on four of her five contentions. Critical to the Tribunal’s findings about the alleged contraventions of the Act was Mr Knox’s involvement and his actions that, as found, contributed to any delay by the respondent to carry out work such as modifications to the common property.
  5. [18]
    I do not accept, as contended by the respondent, that for the fifth contention the applicant was unsuccessful for the period from 2013 to 24 April 2019, inclusive, and only partially successful for the time after that.[16] The Tribunal found at [108] that the term that the applicant be able to traverse steps to use the pool is not reasonable. Further, the respondent is responsible for maintaining access to the common property and building including facilities such as the swimming pool. The Tribunal ultimately found at [116] that from 24 April 2019 after the lot owners approved the disability access work but not the expenditure for the swimming pool hoist, the requirement that the applicant use the stairs to access the swimming pool was not reasonable in all of the circumstances. An apology was ordered and compensation payable to the applicant by the respondent in the amount of $5,000.00.[17]
  6. [19]
    The applicant’s assertion that it was not until the commencement of the proceedings that the respondent addressed four of the five complaints is without merit. The applicant complained about issues concerning her access of certain parts of the building and common property at the earliest in 2016. As found by the Tribunal, Mr Knox was responsible for and/or contributed to any delay by the respondent in completing disability access works. That said, I do not consider that the applicant’s failure to establish a contravention of the Act for Contentions 1, 2, 3 and 4, although a countervailing consideration, is a reason to deny the applicant’s application for costs in the proceeding in all of the circumstances. A complainant should not be discouraged to bring a genuine complaint of unlawful discrimination under the Act by fear of adverse costs consequences.[18]

Offer of compromise – r 86 of the Queensland Civil and Administrative Rules 2009 (Qld)

  1. [20]
    I accept that the respondent made an offer of settlement to the applicant by correspondence dated 20 February 2020. It is clear from the correspondence that the offer was made in certain terms to resolve the proceedings. The correspondence is titled ‘without prejudice offer save as to costs’ and is conditional upon the applicant discontinuing the proceedings. Further to that, the respondent is to hold on or before 30 April 2020 a general meeting for the purpose of considering a proposed motion. A copy of the proposed motion is attached to the offer of correspondence. As stated in the terms of the offer the offer is made on the basis that the respondent Committee will recommend to the general meeting that the motion be passed. The proposed motion referred to in the offer provides for the installation of a pool hoist and addresses how the pool hoist will be managed with respect to health and safety.
  2. [21]
    I reject the respondent’s submission that it could not be said the Tribunal’s decision was more favourable to the applicant than the offer. The Tribunal found Contention 5 to be proven and ordered the respondent to pay to the applicant the amount of $5,000.00 in compensation and to make an apology.
  3. [22]
    The proposed motion referred to in the respondent’s offer includes an explanatory note stating that the committee understands that one of the reasons the motion did not pass was because of concerns about how the pool hoist would be managed on a day-to-day basis and health and safety concerns related to its use. The explanatory note further provides that the committee has drafted a new by-law regulating the use of the pool hoist. This would seem to suggest that the respondent Committee was able to address its safety concerns about the installation and use of a pool hoist prior to the hearing and did not proceed to put this proposed motion to lot owners despite the lot owners approving the pool hoist on 24 April 2019.
  4. [23]
    I do not agree that the Tribunal has an additional discretionary power to award costs to the respondent pursuant to rule 86 of the Queensland Civil and Administrative Rules 2009 (Qld) for all reasonable costs. As discussed above, the applicant was successful in establishing a breach of the Act. The Tribunal found that despite the approved motion for the purchase and installation of a pool hoist, she has been unable to access the swimming pool because there are steps. The Tribunal accepted the applicant’s evidence that she is required to travel to another facility to use the swimming pool for her aquatic exercises and was awarded compensation for her inconvenience and loss of amenity.

Other relevant matters for the purposes of s 102(3) of the QCAT Act

  1. [24]
    I do not accept, as submitted by the respondent, that it has been unnecessarily disadvantaged by the applicant’s conduct and consequently the respondent should be given its costs. Further to that, I do not consider that the respondent should be given its costs from the date it made an offer of compromise to the applicant.
  2. [25]
    As reflected in the Tribunal’s reasons, the applicant raised concerns more generally about disability access in 2014. By 2015, when Mrs Knox had moved into the building, she was required to access parts of the building and common property by using alternate pathways. The requirement that the applicant use alternate pathways was found by the Tribunal to be reasonable and justified in all of the circumstances in respect of four of the five contentions. That said, the applicant’s contentions were not wholly without merit. There were many contested factual issues that required consideration and it is fair to say that the applicant raised her concerns more generally about access some years prior to making her complaint. The applicant was wholly successful in respect of one of her contentions.
  3. [26]
    There are compelling reasons to award costs in favour of the applicant in all of the circumstances of this matter such that the interests of justice require an order for costs. I have taken into account, the complexity of the matter such that it did warrant legal representation and the applicant was successful in establishing a breach of the Act and awarded an amount of compensation. I am satisfied that the award of compensation will be eroded by any costs payable by the applicant in respect of litigating the proceeding.
  4. [27]
    I do accept, as contended by the respondent, that the applicant came to the hearing with no evidence supporting her compensation claim and it was necessary for the applicant to file further evidence in relation to her claim. I accept, as contended, that additional preparation and hearing time was spent by the respondent in addressing the issue of compensation by reason of the applicant’s missing evidence. I also accept, as contended, that some time was spent on the first day of the hearing addressing the outstanding issues of the ‘comparator’ and ‘terms’ relevant to the applicant’s complaint. These are relevant considerations for the purposes of s 102(3)(a) of the QCAT Act and the applicant’s costs should be appropriately discounted.
  5. [28]
    I have also taken into account the Tribunal’s findings made about Contentions 1, 2, 3 and 4, respectively, and more importantly that the applicant was unsuccessful with four of the five contentions. This is also a relevant matter for the purposes of s 102(3)(c) of the QCAT Act and the applicant’s costs should be appropriately discounted.
  6. [29]
    The apportionment of costs to be determined by the Tribunal need not be calculated precisely.[19] Taking a ‘broad brush’ approach I consider that a discount of one-half of the applicant’s costs is appropriate.[20]

Conclusion

  1. [30]
    In conclusion, the interests of justice warrant the order of costs in the applicant’s favour. Although the applicant was not entirely successful in establishing a breach of the Act for all four contentions, she was successful in establishing a breach for Contention 5. The applicant’s costs will far exceed the award of compensation.
  2. [31]
    Further to that, although a countervailing consideration, I do not consider that the applicant’s lack of success in establishing a breach of the Act for four of the five contentions is a compelling reason to not award costs in her favour. As discussed above, the issues to be determined were complex and the Tribunal found that Mr Knox contributed to the respondent’s delay in attending to modifications to the building and common property relevant to some of the applicant’s complaints about access that ultimately formed the basis of the contentions. Any costs order against the respondent will be met by the lot owners collectively including the applicant and her husband Mr Knox.
  3. [32]
    As discussed above, I have taken into account the hearing and preparation time wasted by the respondent by reason of the outstanding issues relevant to the applicant’s complaint. Relevantly, hearing time was spent by the Tribunal addressing the applicant’s contentions. Further to that, hearing time was spent addressing the applicant’s supporting evidence for compensation. I have also taken into consideration the Tribunal’s findings about Contentions 1, 2, 3 and 4 in determining that a discount of one-half of the applicant’s costs is appropriate in all of the circumstances of this matter.
  4. [33]
    I do not consider that the interests of justice warrant an order that the applicant be excluded from making a contribution to any costs order made that she would be required to make by reason of her entitlement or rights held as a lot owner that she may hold together with Mr Knox. As reflected in the Tribunal’s reasons in relation to the complaint, Mr Knox was found to have contributed to any delay by the respondent in attending to the necessary work that included modifications to the building and common property. Mrs Knox elected to have Mr Knox represent her in her dealings with the respondent. I consider that the interests of justice require all of the lot owners including the applicant and Mr Knox to contribute to any costs order made against the respondent.
  5. [34]
    It is desirable to fix any costs ordered, wherever possible.[21] I have considered the accounts and invoices submitted to the applicant in support of her claim for costs that total approximately $39,237.70. It is difficult to identify from the itemised accounts on what basis or relevant scale the costs have been calculated and more importantly whether all of the items and relevant amounts claimed by the applicant’s Solicitor are related to this proceeding. For example, the costs incurred in relation to the applicant’s complaints made to the Australian Human Rights Commission and in representing the applicant more generally in her dealings with the respondent would be costs that fall outside of the applicant’s costs of and incidental to the proceeding and therefore would not be costs payable by the respondent. That said, I am unable to fix the amount of costs based on the accounts and invoices before me.
  6. [35]
    Given the complexity of the matter I also consider that such costs should be as agreed between the parties and failing agreement the costs payable should be on the District Court Scale of Costs.
  7. [36]
    I order that the respondent is to pay one-half of the applicant’s costs of and incidental to the proceeding ADL043-18 to be agreed between the parties. Failing agreement between the parties of the applicant’s costs, the costs are to be assessed under r 87 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) by a costs assessor appointed by the Registrar of the Tribunal, on the standard basis on the District Court Scale of Costs. The respondent is to pay one-half of the applicant’s costs, as assessed or agreed, within sixty (60) days of such agreement or assessment.

Footnotes

[1] Knox v Body Corporate for 19th Avenue CTS 6625 [2020] QCAT 497 (‘Reasons’).

[2]  Submissions on costs filed by the applicant on 28 January 2021.

[3]  Ibid. The application for costs was listed for a decision on the papers on 8 September 2021.

[4]  Submissions on costs of the applicant filed 28 January 2021, [12].

[5]  Ibid, [14].

[6]  Respondent’s costs submissions filed 27 January 2021.

[7]  Ibid.

[8]  Ibid.

[9]  Ibid.

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

[11] Cowen v Queensland Building and Construction Commission [2021] QCATA 103, [27].

[12]  [2005] QCA 111.

[13]  [2005] 2 Qd R 101 at [33].

[14]  Reasons, [136].

[15]  Ibid, [138].

[16]  Respondent’s costs submissions filed 27 January 2021.

[17]  Reasons, [158].

[18] State of Queensland & Anor v Bell [2016] QCATA 176, [49] citing Lowe v Victims of Crime Assistance Tribunal [2004] VCAT 1092 [25]; Styles v Murray Meats Pty Ltd [2005] VCAT 2142 [11]; Falconbridge Pty Ltd v Yarra CC [2005] VCAT 2449 [18].

[19] State of Queensland & Anor v Bell [2016] QCATA 176, [28].

[20] Cowen v Queensland Building and Construction Commission [2021] QCATA 103, [76].

[21]  QCAT Act, s 107.

Close

Editorial Notes

  • Published Case Name:

    Knox v Body Corporate for 19th Avenue CTS 6625 (No 2)

  • Shortened Case Name:

    Knox v Body Corporate for 19th Avenue CTS 6625 (No 2)

  • MNC:

    [2021] QCAT 368

  • Court:

    QCAT

  • Judge(s):

    Member Browne

  • Date:

    28 Oct 2021

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
Cowen v Queensland Building and Construction Commission [2021] QCATA 103
3 citations
Jump To
Cite 1 - [2021] QCATA 103
Cite 2 - [2021] QCATA 103
Cite 3 - [2021] QCATA 103
Falconbridge Pty Ltd v Yarra CC [2005] VCAT 2449
2 citations
Jump To
Cite 1 - [2005] VCAT 2449
Cite 2 - [2005] VCAT 2449
Knox v Body Corporate for 19th Avenue CTS 6625 [2020] QCAT 497
2 citations
Jump To
Cite 1 - [2020] QCAT 497
Cite 2 - [2020] QCAT 497
Lowe v Victims of Crime Assistance Tribunal [2004] VCAT 1092
2 citations
Jump To
Cite 1 - [2004] VCAT 1092
Cite 2 - [2004] VCAT 1092
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
2 citations
Jump To
Cite 1 - [2010] QCAT 412
Cite 2 - [2010] QCAT 412
State of Queensland v Bell [2016] QCATA 176
3 citations
Jump To
Cite 1 - [2016] QCATA 176
Cite 2 - [2016] QCATA 176
Cite 3 - [2016] QCATA 176
Tamawood Ltd v Paans[2005] 2 Qd R 101; [2005] QCA 111
3 citations
Jump To
Cite 1 - [2005] QCA 111
Cite 2 - [2005] QCA 111
Cite 3 - [2005] 2 Qd R 101
WASCA 227 Styles v Murray Meats Pty Ltd [2005] VCAT 2142
2 citations
Jump To
Cite 1 - [2005] VCAT 2142
Cite 2 - [2005] VCAT 2142

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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