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  4. Owen & Coastal Keys Pty Ltd v Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General No 2 - [2023] QCAT 207

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Owen & Coastal Keys Pty Ltd v Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General No 2[2023] QCAT 207

Owen & Coastal Keys Pty Ltd v Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General No 2[2023] QCAT 207

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Owen & Coastal Keys Pty Ltd v Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General & Anor No 2 [2023] QCAT 207

PARTIES:

DAVID OWEN

JOAN OWEN

COASTAL KEYS PTY LTD

(applicants)

v

CHIEF EXECUTIVE, OFFICE OF FAIR TRADING, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

SHARRY EAVIS

(respondent)

APPLICATION NO/S:

GAR277-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

24 May 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General pay the Applicants costs of and incidental to the application to review a decision as agreed or failing agreement as assessed on a standard basis

CATCHWORDS:

COSTS – INTEREST OF JUSTICE – OFFERS TO SETTLE – where applicant wholly successful in the review – whether interest of justice require an order for costs – whether the applicant should recover reasonable costs

Agents Financial Administration Act 2014

Queensland Civil and Administrative Tribunal Act 2009 s 100, and 102

Queensland Civil and Administrative Tribunal Rules 2009 r 86 100, and 102

Uniform Civil Procedure Rules 1999

CH v Queensland Police Service [2021] QCATA 137

Marzini v Health Ombudsman (No 4) [2020] QCAT 365

Cowen v Queensland Building Construction Commission [2021] QCATA 103

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

APPEARANCES &

REPRESENTATION:

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

Introduction

  1. [1]
    This is an application for costs after the applicants were successful in their application to set aside the Chief Executive’s decision that the applicants should reimburse the Office of Fair Trading the sum of $24,661.49 paid out to the Mr Eavis. Briefly,[1] the money was rental funds received on properties by the applicants on behalf of Mr Eavis with whom they had a management agreement. Although Mrs Eavis was entitled to the properties pursuant to an Order by the Federal Circuit Court adjusting property interests between the parties, the properties remained registered in the name of Mr Eavis. Mrs Eavis claimed she was entitled to the rental income paid to Mr Eavis whilst waiting for the properties to be transferred into her name.
  2. [2]
    When she did not receive the money Mrs Eavis made a claim on the Claim Fund under the Agents Financial Administration Act 2014 administered by the respondent. After due consideration and an internal review, the Chief Executive decided that:
  1. The claim be allowed in the amount of Twenty-four Thousand, Six Hundred and Sixty-One Dollars and Forty-Nine Cents ($24,661.49) be paid to the Claimant from the Claim Fund at the expiration of the review period outlined in s. 112 of the Agents Financial Administration Act 2014.
  1. The first, second, and third respondent are liable for the Claimant’s financial loss.
  1. Pursuant to ss. 102(3) and 116(3) of the Agents Financial Administration Act 2014 the first, second and third respondents are jointly and severally liable to reimburse the Claim Fund Twenty-four Thousand, Six Hundred and Sixty-One Dollars and Forty-Nine Cents ($24,661.49).
  1. [3]
    The issues on the review application have been neatly summarised by the applicants as follows:[2]

The question of whether the Chief Executive’s decision was correct (and whether applicants correctly paid out the rental income to Mr C Eavis, rather than Mrs Eavis) was one which involved a consideration of (a) the legal relationship between tenant and landlord; (b) the true effect of the Federal Circuit Court orders; and (c) resolving the proper statutory construction of relevant provisions of the Agents Financial Administration Act 2014 (AFAA). In short, the proceeding involved a legal complexity that was significantly beyond the capacities of an ordinary litigant-in-person.

  1. [4]
    All parties have filed written submissions on costs. The application is resisted by the respondent and Mrs Eavis, because s 100 of the Queensland Civil and Administrative Act 2009 provides that each party should pay their own costs. However there is a discretion conferred under s 102(2) to allow costs “if the Tribunal considers the interests of justice require it to make an order” for costs.
  2. [5]
    There has been much discussion about the application of s 100, starting with Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)[3] where the then President said in relation to costs, that when considering the interest of justice to make a costs order, the circumstances must overcome the strong contra indication in s 100. This was further considered much later in Marzini v Health ombudsman (No 4):[4]

In my opinion the correct approach to the operations of s 100 and s 102 of the QCAT Act is similar to that formulated by the Hon P Lyons QC in Thompson v
Cannon (supra): The ultimate question posed by the statutory provisions is whether in a particular case the interests of justice require the Tribunal to make a costs order. That is the effect of the terms of the statute. Because of the use in s 102(1) of the word “require”, the default position of no order as to costs should not be too readily departed from. I respectfully agree with the approach of the Hon J B Thomas QC in Lee (supra) to the comments of Keane JA in Tamawood (supra)...

I do not consider that there is any justification in the words of the statute for any further constraint on the operation of the power to order costs under s 102, although the section directs attention to a number of matters which may in a particular case be usefully considered. The reference to “any other matter the Tribunal considers relevant” shows that this list is not to be read in a confining sense. One matter which is relevant is that this proceeding is one where there was a right to legal representation.

  1. [6]
    The reference to Tamawood[5] was where Keane JA set out reasons why costs might be ordered in the particular circumstances.

First, the Tribunal found that each party was justified in engaging the services of legal representatives to assist them in the conduct and defence of what the Tribunal recognized to be complex proceedings. That finding alone could be, in my view, a sufficient basis to conclude that the interests of justice warranted the exercise of the discretion to award costs in favour of the successful party, at least in the absence of any countervailing consideration. The Tribunal erred in failing to appreciate the implication of this finding for an understanding of where the interests of justice lay in relation to the costs of the proceedings.

  1. [7]
    It is no surprise that all parties were given leave to be legally represented in the proceeding. This is a consideration when it became obvious that considerable work went into this review application by the legal representative for the applicants. Similarly, the respondent, as obliged to do under the QCAT Act, provided a statement of reasons to the Tribunal. There was challenge to the evidence of the applicants, even though there was really no serious dispute of fact. This was obviously to shore up the decision of the respondent.
  2. [8]
    In considering whether the interests of justice require an order for costs, the tribunal can have regard to the matters set out in s 102(3) of the QCAT although the list is not exhaustive.

Were the applicants disadvantaged

  1. [9]
    The applicants contend they were disadvantaged by the way the respondent conducted the review application. The main complaint was unequivocal reliance on the position that Mrs Eavis was clearly entitled to the rent monies from the properties that were not registered in her name. Also, the insistence that the Federal Court Order applied to the applicants as well as the Eavis. The use of pejorative language in the submissions where these matters were put forward in support of the Chief Executive’s decision.
  2. [10]
    Although the Chief Executive took a firm decision, the use of such language is not unusual in the cut and thrust of litigation. The only exception here may be, and I stress may, is that the Chief Executive is a model litigant and in those circumstances restraint is called for. In any event, given there was no dispute of fact I do not find that the applicants were at a disadvantage.

Complexity

  1. [11]
    As submitted by the applicants, this application did have its complexity. However, one of the main issues was the application of the Federal Court Order to the relationship between the Mr Eavis and the applicants. How the respondent considered that the Order could be enforced by Mrs Eavis against the applicants (or any third party) in circumstances where there was no management agreement between them is difficult to understand. This was addressed in the reasons but clearly the respondent was not prepared to make any concession on this point which forced the applicants to litigate. I accept the applicants submission that there was some complexity in tracing the money to establish the rental money was to pay off the mortgage, to prevent foreclosure, ultimately to the benefit of Mrs Eavis.
  2. [12]
    I do not accept, as submitted by the respondent, that the application of the Federal Court Order was novel. The order operated inter-parties. It follows that, as I said above, it could not be enforced against a third party without the Court’s intervention.
  3. [13]
    The complexity of the application certainly warranted legal representation.

Strength of the parties position.

  1. [14]
    The reasons establish that the applicant’s case was a strong one from the very outset. I accept the submission of the applicant that

the proceedings were resolved by reference to a series of fundamental propositions, namely: (1) the agency (and contractual) relationship was (and was always) between the applicants (Coastal Keys) and Mr C Eavis (and not Mrs Eavis); (2) the Federal Circuit Court orders operated inter-parties,11 and did not bind the applicants (3) the purpose of the relevant part of the AFAA is to regulate the holding and release of trust money vis the parties to the relevant transaction (Mrs Eavis never having been such a party).

  1. [15]
    The respondent submits that if the Chief Executive considers there was no reasonable prospects of the applicants success than as the model litigant, the respondent must stand its ground. That might be an initial view, but by the time all of the material was filed, a substantial amount of material, and the applicants case was fully articulated in the material, the respondent ought to have reconsidered the position and recognised the risks of proceeding. Particularly in a case where there was no dispute about the facts.
  2. [16]
    On the material filed, and upon which the reasons are based, the outcome ought to have been apparent to the respondent.

Financial circumstances

  1. [17]
    Irrespective of the financial circumstances the engagement of the legal representation in this case was necessary and costly. The applicants were quite justified in doing so, not only to avoid the payment of the money claimed but also to protect reputational damage.
  2. [18]
    It is submitted that because of this litigation, the applicants’ income has dropped and business has been lost. I have no reason not to accept this to be the case.

Mrs Eavis.

  1. [19]
    As Mrs Eavis was a party to the application all of the above comments are pertinent to her as well. However, she was not the principal contradictor in the litigation. She was essentially a witness, albeit having an interest in the outcome. In the circumstances insofar as s 100 applies, it would not be in the interest of justice to make an award of costs against Mrs Eavis.

Discussion

  1. [20]
    The respondent submits that given the novel scenario because of the implication of the Federal Court Order it was justified in the making of the original decision. Also, that this being a review proceeding rather than a civil matter where costs are more likely to follow the event. It is worth noting that the costs order made in Cowen v Queensland Building and Construction Commission[6] was in relation to a review application. The QCAT Act makes no distinction as to the types of matters to which s 102 might apply.
  2. [21]
    I have come to the view that the applicants should be reimbursed some of their costs for the application when, in my view, the evidence clearly established that the review application would succeed. They have been put to substantial expense. The material filed was voluminous and for the most part relevant to the review application. It was made more complicated with the inclusion of Mrs Eavis as a party. For them to have incurred legal expenses of about $80,000.000 to avoid the payment of $24,661.49, and the infringement notice to protect their reputation as management agents, and be denied costs, would in the circumstances be plainly unjust.
  3. [22]
    As the amount of costs, I rely on the affidavits of Mr Owen filed on 14 April 2022 and 17 May 2022 which attached the accounts for the costs. It is submitted that the costs are reasonable having regard to: the volume of material; the complexity of the matter; and the importance of the matter to the applicants but also the removal of the infringement and vindication of their professional reputation.
  4. [23]
    Section 107 of the Act requires the Tribunal to fix the costs if possible. The costs claimed are the actual costs incurred by the applicants. There is no categorisation of costs in the QCAT Act like there is in the Uniform Civil Procedure Rules. If one were to use the UCPR as a comparison the costs claimed can be regarded as “indemnity costs” which are recoverable when a party does better than a Formal Offer to Settle or where this is specific conduct which would warrant indemnity costs. There is no such conduct alleged here.
  5. [24]
    The usual costs recoverable under the UCPR are ‘standard costs” which could be regarded as reasonable costs. The only reference to the amount of cost recoverable is the reference to “reasonable costs” in Rule 86. It is not for me to undertake a line-by-line assessment of each bill of costs rendered to the applicants, although the outlays seem reasonable. For example, the invoice demonstrates that considerable costs were incurred in negotiating with the respondent prior to the review application, these costs would not usually be recoverable as part of the litigation, to which for instance the UCPR applies. Sometines a broad-brush approach will be adopted[7] but here that would, in my view be too arbitrary. There is usually a reduction when standard costs are assessed.
  6. [25]
    This is simply not a case where costs could be fixed. The respondent has made no submissions on the amount of costs so the implication is that it expects there to be a proper assessment by a costs assessor. In those circumstance the appropriate order would be as follows:
    1. (a)
      The first respondent pay the applicant’s costs of and incidental to the application to review a decision as agreed or failing agreement as assessed on a standard basis.
    2. (b)
      There be no order of costs against the Sharry Eavis.

Footnotes

[1] Owen & Coastal Keys Pty Ltd v Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General & Anor [2021] QCAT 31.

[2]  Applicants submissions on costs filed 17 May 2022 paragraph 3.

[3]  [2010] QCAT 412.

[4]  [2020] QCAT 365 also see Cowan v Queensland Building and Construction Commission [2021] QCATA 103; CH v Queensland Police Service [2021] QCATA 137.

[5]Tamawood v Paans [2005] 2 Qd R 101.

[6]  [2021] QCATA 103.

[7]Thompson v Body Corporate for Arila Lodge & Anor; Thompson v Body Corporate for Arila Lodge & Anor (No 2) [2018] QCATA 133 [57].

Close

Editorial Notes

  • Published Case Name:

    Owen & Coastal Keys Pty Ltd v Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General & Anor No 2

  • Shortened Case Name:

    Owen & Coastal Keys Pty Ltd v Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General No 2

  • MNC:

    [2023] QCAT 207

  • Court:

    QCAT

  • Judge(s):

    Member Richard Oliver

  • Date:

    24 May 2023

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
CH v Queensland Police Service [2021] QCATA 137
2 citations
Jump To
Cite 1 - [2021] QCATA 137
Cite 2 - [2021] QCATA 137
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
Marzini v Health Ombudsman (No 4) [2020] QCAT 365
2 citations
Jump To
Cite 1 - [2020] QCAT 365
Cite 2 - [2020] QCAT 365
Owen & Coastal Keys Pty Ltd v Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General [2021] QCAT 31
1 citation
Jump To
Cite 1 - [2021] QCAT 31
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
Tamawood Ltd v Paans[2005] 2 Qd R 101; [2005] QCA 111
1 citation
Jump To
Cite 1 - [2005] 2 Qd R 101
Thompson v Body Corporate for Arila Lodge [2018] QCATA 133
1 citation
Jump To
Cite 1 - [2018] QCATA 133

Cases Citing

Case NameFull CitationFrequency
Medical Board of Australia v TXA (No 4) [2023] QCAT 3602 citations
1

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