Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2023
  4. Holgar v The Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading (Costs) - [2023] QCAT 408

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Holgar v The Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading (Costs)[2023] QCAT 408

Holgar v The Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading (Costs)[2023] QCAT 408

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Holgar v The Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading & Ors (Costs) [2023] QCAT 408

PARTIES:

Teresa Halina holgar

(applicant)

v

The Chief Executive, Department of Justice and attorney general, office of fair trading

(respondent)

and

THE REAL ESTATE EXCHANGE (BRISBANE) PTY LTD

(respondent)

and

ROBERT IAN HYDE

(respondent)

APPLICATION NO/S:

GAR343-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

20 October 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

ORDERS:

Teresa Halina Holgar is to pay costs of the proceeding (GAR 343-17) to The Real Estate Exchange (Brisbane) Pty Ltd and Robert Ian Hyde, fixed in the amount of Thirty thousand, nine hundred and ninety dollars, and ninety-five cents ($30,990.95).

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – whether costs of the proceeding should be awarded to two of the Respondents in an application to review a claim on the fund under the Agents Financial Administration Act 2014 (Qld) – where the law as to the awarding of costs by the Queensland Civil and Administrative Tribunal was discussed – where the matter was of a commercial nature, and the relevant parties as to the costs issue were sophisticated parties – where an offer of settlement on a no-costs basis was made by the two Respondents prior to the hearing – where the strength of the Applicant’s claim upon the fund was found to be weak – where substantial costs were incurred by all parties – where the total costs incurred by all parties significantly exceeded the amount of the claim

Agents Financial Administration Act 2014 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100, s 102, s 106, s 107

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

Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors (costs) [2022] QCAT 225

CH v Queensland Police Service [2021] QCATA 137

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

Holgar v Chief Executive, Department of Justice and Attorney-General & Ors [2019] QCAT 370

Holgar v Chief Executive, Department of Justice and Attorney-General & Ors [2021] QCATA 113

Holgar v Chief Executive, Department of Justice and Attorney-General & Ors [2022] QCATA 27

Magill v Queensland Law Society [2020] QCAT 327

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

Stuart v Queensland Building and Construction Commission [2016] QCATA 135

Tamawood Ltd & Anor v Paans [2005] QCA 111

Warren v Queensland Law Society Incorporated (No 2) [2013] QCAT 234

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

  1. [1]
    This is the decision on an Application for costs of a Tribunal Hearing which I heard on 29 November 2018 and 30 November 2018. My decision as to the Initiating Application in the matter to review a decision of the Office of Fair Trading is reported as [2019] QCAT 370.
  2. [2]
    In my decision on the Initiating Application, I noted that if any application for costs was made, that Directions would be made as to the filing of submissions in that regard.[1]
  3. [3]
    An Application for leave to appeal or appeal in relation to my decision on the initiating application was filed on 7 January 2020 (APL009-20).
  4. [4]
    An Application for costs in relation to the Initiating Application was filed by the Real Estate Exchange (Brisbane) Pty Ltd and Robert Ian Hyde on 23 January 2020.
  5. [5]
    I gave directions on 9 June 2020 that the Application for costs of the Initiating Application would be determined after the conclusion of the Application for leave to appeal or appeal.
  6. [6]
    The Application for leave to appeal or appeal was heard by the Appeal Tribunal on 27 January 2021, and a decision was delivered on 15 September 2021 dismissing the application for leave to appeal or appeal.[2]
  7. [7]
    An application for miscellaneous matters (seeking an order for costs of the appeal proceedings) was filed by The Real Estate Exchange (Brisbane) Pty Ltd and Robert Ian Hyde on 28 September 2021.
  8. [8]
    The application for payment of their costs of the appeal proceedings by the Real Estate Exchange (Brisbane) Pty Ltd and Robert Ian Hyde was dismissed by the Appeal Tribunal on 2 March 2022.[3]
  9. [9]
    I gave directions on 1 October 2021, 6 May 2022 and 26 August 2022 as to the parties filing submissions in relation to the Application for costs of the initial application.
  10. [10]
    The parties filed submissions in relation to the application for costs of the initial application as follows:
    1. Submission in support of the Application for costs (Attachment ‘A’) filed by The Real Estate Exchange (Brisbane) Pty Ltd and Robert Ian Hyde, on 23 January 2020.
    2. Submission in Response to the application for costs filed by the Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading, on 27 March 2020.
    3. Submission in Response to the application for costs filed by Ms Holgar on 27 March 2020.
    4. Submission in Reply to the application for costs filed by the Real Estate Exchange (Brisbane) Pty Ltd and Robert Ian Hyde, on 9 April 2020.
    5. Further Submission in Response to the application for costs filed by Ms Holgar, on 7 October 2022.

The Initiating Application

  1. [11]
    For convenience, I reproduce an amended text of my outline of the proceedings in the initial application, from my decision in the following paragraphs.[4]
  2. [12]
    Mr Hyde is a real estate agent (the agent) with a real estate agency known as Hyde Real Estate (the agency).
  3. [13]
    Ms Holgar (the owner) first appointed the agent on 5 May 2016 to act on her behalf in relation to the sale of her property at Kenmore, Queensland, and made a second appointment on 29 July 2016.
  4. [14]
    A signed contract of sale for the property was received on 31 July 2016 from Mr Horn (the buyer). The buyer paid a deposit of $80,000 which was received by 8 August 2016.
  5. [15]
    A series of events then occurred in relation to the transaction, and the agent refunded the deposit in full to the buyer on 8 November 2016.
  6. [16]
    Ms Holgar says that the agent should not have refunded the deposit to the buyer, and made a claim against the fund maintained by the Chief Executive in relation to the deposit. The claim was rejected by the Chief Executive on 19 October 2017 and the owner brought an Application to Review that decision.
  7. [17]
    At the commencement of the hearing, Counsel for the owner advised that the claim being made was for the sum of $82,300.00, being $80,000.00 in respect of the deposit plus $2,300.00 for interest paid on bridging finance.
  8. [18]
    The matter was heard in an oral hearing over two days on 29 November 2018 and 30 November 2018.
  9. [19]
    There were very substantial submissions in this matter from all parties. Together they represent two medium-sized ring binders. Prior to the hearing, the Chief Executive filed submissions on 17 January 2018. The owner filed submissions on 12 February 2018. The Chief Executive filed submissions in reply on 2 March 2018.
  10. [20]
    I gave directions for the filing of closing submissions at the conclusion of the hearing. The owner filed closing submissions on 17 December 2018. The Chief Executive filed submissions on 4 January 2019. The agent and the agency filed submissions on 7 January 2019. The Owner filed submissions in response to those submissions on 6 February 2019. The Chief Executive filed further submissions in response to the Owner’s submissions on 8 February 2019.

Submissions in support by the agency and agent

  1. [21]
    The agent and the agency submitted that the Application by the owner for review of the decision of the Chief Executive made on 19 October 2017, to reject the claim made by the owner upon the fund maintained under the Agents Financial Administration Act 2014 (Qld) (the AFA Act), was without substance or merit.[5]
  2. [22]
    They submitted that the application to recover from the claim fund was misconceived, bad in fact and law, and ought to have been recognised as such by the (owner) and her advisers.[6]
  3. [23]
    They sought an order for costs under s 106 of the Queensland Civil and Administrative Tribunal Act [2009] (Qld) (the QCAT Act), and further sought that the tribunal fix the costs of their ‘successful defence of the (owner’s) challenge to the decision of the Chief Executive to refuse a claim on the claim fund’.[7]
  4. [24]
    They contended that it was in the interests of justice that the owner pay the costs of their successful defence of the application ‘having regard to the misconceived and fundamentally flawed application pursued by the (owner)’.[8]

Submissions in response as to costs by the Chief Executive

  1. [25]
    The Chief Executive submitted that it would bear its own legal costs, and did not intend to comment on whether the other parties should pay each other’s costs, as to do otherwise would put it at risk of taking an adversarial position which was not appropriate in review proceedings.[9]
  2. [26]
    it submitted that it was not in the interests of justice for any costs orders to be made against itself or the fund, and that an adverse costs order against it or the fund would not be in the public interest as that would unduly punish it for discharging its statutory obligations, and would be an unfair impost on the taxpayers of Queensland as the fund is drawn from public monies.[10]

Submissions in response as to costs by the owner

  1. [27]
    The owner submitted that she resisted the application for costs made by the agency and the agent.[11]
  2. [28]
    She submitted that s 100 of the QCAT Act, which provided that ‘each party to a proceeding must bear the party’s own costs for the proceeding’ was a presumption against costs, and referred to the decisions in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2),[12] Ascot v Nursing & Midwifery Board of Australia,[13] and Warren v Queensland Law Society Incorporated (No 2).[14]
  3. [29]
    She referred to the relevant considerations set out in s 102 of the QCAT Act, and submitted that on balance they were against a departure from the presumption that each party bear their own costs of the proceeding.[15]
  4. [30]
    In relation to s 102(3)(a), as to disadvantage, she submitted that she did not act in a way that unnecessarily disadvantaged the agency and the agent, and that in relation to section 102 that the agent had not identified any relevant disadvantage.[16]
  5. [31]
    In relation to s 102(3)(b), as to complexity, she agreed that the matter in dispute was complex in fact and in law but submitted that despite the complexity of the matter it was not wholly necessary for the agency and the agent to be legally represented at the hearing as the position adopted by them prior to and during the proceeding was in unison with the position advanced on behalf of the Chief Executive who was ably represented.[17]
  6. [32]
    In relation to s 102(3)(c), as to the strength of the claims, she submitted that there was no prior case law interpreting the key provisions of the AFA Act, particularly s 25 and s 27; and that the application was necessary to adjudicate the full scope and meaning of those provisions; and that the Tribunal’s consideration was necessary to determine legitimate competing arguments.[18]
  7. [33]
    In relation to s 102(3)(d), as to affording natural justice and helping the tribunal, she submitted that she had generally attempted to enable and help the tribunal to make the decision on the merits.[19]
  8. [34]
    In relation to s 102(3)(e), as to the financial circumstances of the parties, she submitted that the agency and agent had provided no information about their financial circumstances, and it was not known whether their legal costs were covered by professional indemnity insurance.[20]
  9. [35]
    In relation to s 102(3)(f), as to other matters, she submitted that the agent did not reply to legitimate enquiries made by her asking whether the deposit was held by the agency, and that she was required to bring the original claim at least in part due to the conduct of the agent.[21]
  10. [36]
    She concluded that the reasons and decision did not treat her claim as lacking in merit, and that the presumptive position should prevail, as follows:[22]

[23]  The considered reasons of the learned Member did not treat the matter as one where the (owner’s) claim lacked merit and did not employ the trite language advanced in the submissions made by (the agency and the agent). The decision was one in which the learned member’s interpretation of the law and detailed assessment of the evidence were crucial elements of the ultimate decision.

[24]  It is respectfully submitted that the interests of justice do not require the making of an order as to costs and that the presumptive position should prevail.

  1. [37]
    In further submissions[23] she referred to the remarks of the Appeal Tribunal in deciding to not order costs of the Appeal as follows:[24]

[19]  In all, based on the submissions made we do not think that the interests of justice ‘require’ the appeal tribunal to make an order for costs in favour of the (agency and agent).

[20]  In addition to the factors addressed:

  1. We do not think it is in the interests of justice for a party seeking review of an administrative decision to be burdened with a costs order when issues of broad application and importance are dealt with on an appeal. In this case the appeal Tribunal’s interpretation of section 25(1)(b) of the AFA Act has implications for how real estate agents deal with trust funds and affects the industry as a whole. The proceedings were not a wasteful exercise which might justify the imposition of a costs order.
  2. The proceedings arise out of the review application. As a result, different considerations are relevant to the question of the interests of justice then, for example, in a civil claim for damages which the tribunal might determine. Judges have referred to the ‘chilling effect’of too readily ordering costs against regulatory complainants.
  3. This is not a case where the benefits of successfully resisting Ms Holgar’s appeal will be eroded by a failure to be awarded costs. In cases where that consideration has prevailed it is fair to observe that a party would have been better off not pursuing their legal rights given the cost involved. In this case the outcome of the review proceedings directly affected the (agency and agent). They had a genuine interest in the Chief Executive’s decision being confirmed. The (agency and agent) were able to protect their interests by being automatically joined to the proceeding as parties. We do not think their joinder should impact Ms Holgar, whose entitlement under the AFA Act is to a review of the Chief Executive’s decision, with consequent appeal rights. The interests of the (agency and agent) were in fact protected by confirmation of the original decision. That outcome is not eroded by no award of costs in their favour.
  1. [38]
    She referred to two offers of settlement that were made by the agency and the agent and submitted that they did not represent a genuine compromise, and were made after significant costs had already been incurred by her, as follows:[25]
  1. The (agency and agent) rely upon to offers to settle. The first offer, made 11 September 2018, was for payment of $10,000 to (the owner). (The owner) responded with a counter offer of $60,000. The second offer, made 18 October 2018, was for a payment of $15,000 to (the owner).
  1. It is respectfully submitted that these offers by the (agency and agent) do not represent a genuine compromise and therefore ought to be given little weight by the tribunal. The increase of only $5,000 in response to the (owner’s) counter-offer could not be considered a genuine effort towards settlement of the dispute. It is also noted that these offers were made shortly prior to trial, when (the owner) had already incurred significant costs.
  1. [39]
    As to the costs being sought in a fixed amount of $38,228.94, the owner says that the claim far exceeds the costs that could be awarded had the matter proceeded by way of civil claim in the Magistrates Court, which would be the appropriate jurisdiction for the quantum involved.[26]
  2. [40]
    She concluded her further submissions by submitting that the interests of justice do not require the making of an order as to costs, and that the application for costs should follow the course taken by the Appeal Tribunal, allowing the presumptive position to prevail.[27]

Submissions in Reply as to costs by the agency and agent

  1. [41]
    The agency and agent attached an affidavit by their solicitor, Mr Heath, who had conduct of the action, to their submissions in reply.[28]
  2. [42]
    Mr Heath stated that he was admitted as a solicitor in July 1989, and that since that time he had been in continuous practice in Brisbane, working in commercial and insurance litigation, and had conducted hundreds of cases.[29]
  3. [43]
    He stated that in his experience it was typically the case that professional costs and outlays recovered by a litigant in the District Court approximate 70% of the costs actually incurred and paid by the client in the conduct of the proceeding.[30]
  4. [44]
    He noted that the fees and outlays billed to his clients to successfully conduct the defence of their interests in this matter were $55,522.96.
  5. [45]
    He stated that he had been instructed to request that the Tribunal accede to his clients application for the recovery of the professional costs and outlays they had incurred in successfully defending their interests in the hearing by reference to the District Court of Queensland scale, fixed in the amount of $36,152.43 (representing approximately 70%) in respect of professional fees, and $3,876.63 in respect of the outlays, making a total of $40,029.06.[31]
  6. [46]
    The agency and agent submitted that the rejection of the settlement offers put by them to the owner were relevant to the exercise of the Tribunal’s discretion as to costs.[32]
  7. [47]
    The agency and agent canvassed cases as to the awarding costs in the Tribunal, and submitted that they demonstrated the importance of reasonableness and all relevant matters, as follows:[33]
  1. This review of the cases demonstrates that, in deciding whether the ‘interests of justice’ warrant a costs order, one has regard to the factors set out in Section 102 but, beyond that, one must consider how the case was conducted and the ‘reasonableness’, or otherwise, of the unsuccessful party.
  1. The Tribunal may also consider anything else it considers relevant. A major factor in this case tells against the applicant is her improvident rejection of two offers to settle put to her by the respondents.
  1. [48]
    They refer to submissions of the owner that ‘an agent would confirm dated instructions in the circumstances’; her submissions that the conduct of the agency and agent represented ‘a loose-handed approach to dealing with trust money’; and her reference to the ‘atmosphere in which the deposit was released’; and submit that these were contradictory and ambiguous submissions, as the agent had no obligation to investigate whether a dispute existed about which it had not been informed, and that this demonstrated the hopelessness of the owner’s case.[34]
  2. [49]
    They submit that their characterisation of the owner’s challenge to the decision of the Chief Executive as ‘misconceived, fundamentally flawed and without substance or merit’ stands, and that the challenge should not have been pursued at all.[35]
  3. [50]
    Their submissions canvassed the factors referred to in section 102 of the QCAT Act.
  4. [51]
    As to conduct unnecessarily disadvantaging another party, they submit that this arose through the necessity to ‘have to incur significant legal costs in defending an entirely proper decision of the Chief Executive’.[36]
  5. [52]
    As to the nature and complexity of the dispute, they submit that the factual complexity was the product of the owner’s extraordinary conduct, and is attested to by the fact it was necessary for them to be legally represented in order to resist the misconceived application brought by the owner.[37]
  6. [53]
    As to the relative strength of the claims, they submit that the only issue in the case was whether the owner had rescinded the instructions she provided to the agency and the agent to release the deposit. They submit that her evidence in relation to that was summarised by it in the initial decision[38] that she ‘agreed that she instructed her lawyer to write to the agent on 8 September giving him instructions to refund the deposit to the by Mr Horn, and had not at any stage told her lawyer to withdraw the instruction to the agent’.
  7. [54]
    They submit that the case was therefore doomed to fail on the owner’s own evidence, and that there ought to have been no hearing to determine the matter, and that the owner should have accepted the entirely proper finding of the Chief Executive.[39]
  8. [55]
    As to financial circumstances, they note that the owner concedes that she is not impecunious, and that there is evidence before the Tribunal of her ownership of at least two residential properties, and her capacity to service a bridging finance loan.[40]
  9. [56]
    As to other considerations, the agency and agent refer to the ‘tenuousness’ of the owner’s position, and submit that the challenge should never have been launched, as follows:
  1. The judgment of the learned Member comprised 95 paragraphs across 21 pages. The matter was undoubtedly complex, but only because of the contradictory position adopted by (the owner) in her misguided attempt, whilst conceding that she had not withdrawn her instructions to release the deposit, that, somehow – it is not stated how – (the agency and agent) ought not to have released the deposit.
  1. The fact that the application was not dismissed in a decision of the few paragraphs is not determinative of the proposition that it ever had any merit. It was necessary for the Learned Member to consider the two days of evidence and the lengthy written submissions in order to reach his conclusions in this matter.
  1. Nevertheless, the tenuousness of the applicant’s position would have been evident to (the owner), properly advised, given (the owner’s) concession in her evidence, and in the written submissions, that she did not at any time ever inform the (agency and agent) of the existence of the dispute or the withdrawal of her previous instructions.
  1. The matter rises and falls on the evidence. Given that evidence, the challenge to the Chief Executive Officer’s decision should never have been launched.
  1. [57]
    As to the offers, the agency and agent submit that the rejection of those offers is conduct which is relevant to the exercise of the Tribunal’s discretion, and illustrates (the owner’s) unreasonableness, as follows:[41]
  1. (The owner’s) imprudent rejection of those offers – one of which was met, on 18 October 2018 – with a demand that (the owner) be paid $60,000 – is conduct which is relevant to the exercise of the Tribunal’s discretion and illustrates (the owners’) unreasonableness.
  1. In the final analysis, (the owner) refused an offer made to her on 22 October 2018 – just under one month before the two day hearing – to accept $15,000 in full and final settlement of the claim.
  1. (The owner) was informed of (the agency and the agents) intention to rely upon that offer if it was not accepted. The offer was ignored.
  1. The conduct of (the owner) is evidence of her imprudence and her unreasonableness, and is an important reason why the Tribunal’s discretion should be exercised in favour of a costs order against (the owner).
  1. [58]
    The agent and agency conclude by submitting that the unreasonable conduct of the owner has meant that they have incurred considerable, justifiable, legal costs to vindicate their professional position, and seek costs fixed in the amount of $40,029.06.[42]

The law as to costs in the tribunal

  1. [59]
    Section 100 of the QCAT Act provides the usual situation as to costs as follows:

100 Each party usually bears own costs

Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.

  1. [60]
    Section 102 of the QCAT Act provides for cost being awarded in the interests of justice, as follows:

102 Costs against party in interests of justice

  1. The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.
  1. However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.
  1. In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
  1. 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. the nature and complexity of the dispute the subject of the proceeding;
  1. the relative strengths of the claims made by each of the parties to the proceeding;
  1. for a proceeding for the review of a reviewable decision—
  1. whether the applicant was afforded natural justice by the decision-maker for the decision; and
  1. whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
  1. the financial circumstances of the parties to the proceeding;
  1. anything else the tribunal considers relevant.
  1. [61]
    S 105 of the QCAT Act provides that the Rules may authorise the tribunal to award costs in other circumstances, as follows:

105 Other power to award costs

The rules may authorise the tribunal to award costs in other circumstances, including, for example, the payment of costs in a proceeding if an offer to settle the dispute the subject of the proceeding has been made but not accepted.

  1. [62]
    S 107 of the QCAT Act provides that the tribunal must fix the costs if possible, or otherwise order they be assessed, as follows:

107 Fixing or assessing costs

  1. If the tribunal makes a costs order under this Act or an enabling Act, the tribunal must fix the costs if possible.
  1. If it is not possible to fix the costs having regard to the nature of the proceeding, the tribunal may make an order requiring that the costs be assessed under the rules.
  1. The rules may provide that costs must be assessed by reference to a scale under the rules applying to a court.
  1. [63]
    The situation as to the awarding costs by the tribunal has been discussed in many cases. There can be seen to be two lines of authority as to the proper approach to be taken.
  2. [64]
    One view is that there is a strong contra-indication against costs orders in s 100 of the QCAT Act, and that the test is whether the weight of the factors to be considered under s 102(3) of the QCAT act are so compelling for the usual situation expressed in s 100 to be overcome.
  3. [65]
    This view was adopted in the decision of Justice Wilson in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)[43] (Ralacom), and the decision of the Appeal Tribunal in Stuart v Queensland Building and Construction Commission.[44]
  4. [66]
    Another view is that s 100 and s 102 of the QCAT Act should be read together, and the overall rule is that the tribunal will award costs if the interests of justice require it to make the order; and that where the successful party had good reason to be legally represented, that a costs order should follow the event, unless there are relevant countervailing considerations.
  5. [67]
    That view was set out in the decision of Judge McGill SC in Cowen v Queensland Building and Construction Commission;[45] and adopted in the decision of Judge Allen QC in CH V Queensland Police Service.[46] 
  1. [68]
    In this matter, the Appeal Tribunal referred to the range of cases and said that the discretion was to be exercised on a case-by-case basis, as follows:[47]

[8]  The (agency and agent) have referred to the outcome of costs applications in a range of cases. An award of costs arises from the exercise of a discretion conferred by s 102(a) of the QCAT act and is exercised judicially on a case-by-case basis.

  1. [69]
    In Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager Of Maritime Safety Queensland, Department Of Transport And Main Roads and Ors (costs),[48] Member Gordon considered the range of cases.
  2. [70]
    He commented on the application of the expression ‘interests of justice’ as varying between decision-makers, as follows:[49]

[56]  In considering this, I am conscious of the fact that whether something is required in the ‘interests of justice’ is a matter of subjective judgement and will vary between decision-makers. These variations arise from decision-makers having a different understanding of the meaning of the expression (for example, whether the expression is limited to consideration of fairness as between the parties or whether it has a wider meaning in the public sense). Or decision-makers applying different weight to all the various factors which might need to be considered. This makes it much harder for parties to predict the outcome of ‘the interests of justice’ test than for example where the test is of reasonableness, or a breach of tribunal’s directions which might apply in other jurisdictions.

  1. [71]
    He noted that the decision of Justice Wilson in Ralacom followed the comments in the Court of Appeal decision in Tamawood[50] that ‘the legislature had turned its face against awards of costs in this Tribunal’.[51]
  2. [72]
    After discussing the range of cases, Member Gordon followed the line of authority for the traditional approach expressed by Justice Wilson in Ralacom, that the effect of sections 100 and 100 was a ‘strong contra indication’ requiring a ‘compelling’ interests justice argument to displace it.[52]
  3. [73]
    Senior Member Aughterson made reference to Brisbane Marine Pilots in his decision in Pound v Queensland Building and Construction Commission,[53] and expressed the view that a balance is to be made to consider s 100 along with the s 102(3) considerations, with the weight accorded to it being largely dependent on the nature and scope of the proceedings, and said as follows:[54]

[41]  The objects of the QCAT Act, including issues of access to the Tribunal and the minimisation of costs, provide an appropriate reference point for the operation of s 100 of the QCAT act and, in that context, may be placed in the balance along with the s 102(3) interests of justice considerations. The interplay between s 100 and s 102(3) may well vary, depending on the impact a costs order in the case at hand might have on access to justice and the other objectives in s 3 of the QCAT Act.

[42]  For example, the prospect of an adverse costs order is likely to weigh heavily on any decision to seek review of certain administrative decisions, which will potentially have a significant impact on access to justice. On the other hand, in relation to body corporate disputes involving significant monetary or other considerations, the interests of justice in awarding costs, as alluded to by Keane JA in Tamawood, might weigh heavily in favour of a costs order. In those circumstances, the disincentive of a potential costs order in bringing a matter before the Tribunal is less likely to learn so large and, accordingly, considerations of access to justice might weigh relatively lightly in the balance against a costs order.

[43]  On that basis, the underlying concern of s 100, in particular is not impeding access to justice and maintaining a low-cost jurisdiction, may simply be placed on the balance along with the s 102(3) considerations, with the weight accorded to it being largely dependent on the nature and scope of the proceedings.

[44]  Weighing the s 102(3) interests of justice considerations with the s 100 factor is consistent with what was said by the President of the Tribunal in Magill v Queensland Law Society Inc.[55] In that case Daubney J referred to the s 102(3) factors to which the Tribunal may have regard when considering the interests of justice in a particular case and then stated:

These factors, individually and collectively, are not determinative, and go only to informing the exercise of a broad discretion, the touchstone of which remains the Tribunal’s assessment of the interests of justice in a particular case. The discretion to award costs will only be exercised when the interests of justice in a particular case outweigh the prima facie ‘no costs’ position under s 100.

Discussion

  1. [74]
    This matter is a review of the decision of the Chief Executive to reject a claim against the fund maintained by it under the AFA Act.
  2. [75]
    There is a strong commercial undercurrent to the matter. It concerns the release by a real estate agent on 8 November 2016 of a deposit of $80,000 to the purchaser, which had been provided in relation to the purchase of a property in the western suburbs of Brisbane which was owned by Ms Holgar.
  3. [76]
    Ms Holgar was seeking that an amount be paid to her from the fund, representing the value of the deposit of $80,000, and was also seeking a further $2,300 in costs incurred on or about and after 7 December 2016 to complete a later property purchase, which involved the obtaining of bridging finance in the interim period.
  4. [77]
    The owner had an alternative course open to her to seek to recover the deposit. She could have brought a civil claim directly against the buyer. She elected to seek to recover the amount from the fund on the basis of a breach of the AFA Act by the agent.
  5. [78]
    The reason for the owner’s election to seek recovery from the fund instead of civil action against the buyer was canvassed in the evidence at the hearing, in the cross examination of Ms Holgar, as being related to the cost of the process of going through a court, as follows:[56]

MR HEATH: So you gave instructions for that letter, Mrs Holgar, but you can’t tell me if or when a demand was made on the buyer for the deposit, can you?

–-- No

Right. And then Mr Loel says in that letter as well that you’re going to sue the buyer doesn’t he? --- Yes

You didn’t do that, did you? --- No.

Why?--- Because the evidence was to go to – there was a very lengthy discussion about options whether a follow-up Mr Hyde or the buyer, and the option was to follow-up Mr Hyde and the deposit that was kept, rather than suing the – the buyer and going through a different court and a very costly process.

It was easier to blame Mr Hyde than it was to sue the buyer? – – – Well it was – it was two different courses of action and we decided to take that course as opposed to the other one.

  1. [79]
    The owner did not pay commission on the anticipated sale to the agent.[57]
  2. [80]
    There were five different versions of the sales contract. The last version was signed by the owner on 29 July with an $815,000 purchase price, but there is dispute as to whether the settlement period was agreed as 60 days or 90 days.[58]
  3. [81]
    The owner’s husband gave evidence that in the course of the transaction they were being provided legal advice from two lawyer’s firms, Robinson and Robinson, and Lillis and Lyle, who were giving advice about the contracts.[59]
  4. [82]
    The owner’s husband agreed that he would probably describe himself as a sophisticated investor.[60]  He gave evidence as to his involvement in property transactions in his evidence as follows:[61]

MR TAN: Very quick question, Mr Holgar. You mentioned a moment ago – probably several moments ago – that you’d settled contracts for real estate before. How many contracts have you been involved in? – – – I can’t remember. Quite a few.

Quite a few. Estimate – about 10, 12, 20. More? – – – 20 – Probably more. I don’t know

More? – – – Maybe 100. I don’t know.

Hundred. Okay. As the buyer or the seller – either all? – – – As the – as probably seller.

Okay? – – – A bit more than buyer.

And were all of those with Mrs Holgar? – – – No

No. How many of those would you have been involved in with Mrs Holgar roughly speaking? – – – Very few. Almost none. Almost none. I might have been guarantor somewhere.

Guarantor? – – – Probably for loans, but even when she bought property on her own, I wasn’t really involved. I have a separate company with other projects in it.

So you didn’t buy a property together in joint names? – – – No. I’ve – rarely. Rarely, I think. Only one I can think of.

  1. [83]
    The Chief Executive is not making any application for costs for itself. It submits that it did not want to be put at risk of taking an adversarial position. By not seeking costs, the Chief Executive is maintaining its usual position to neither seek, or be liable for, costs in the course of discharging its statutory obligations.
  2. [84]
    That position of the Chief Executive is consistent with the discussion in the cases I have referred to as to costs, that there is a risk of a ‘chilling effect’ upon a statutory body fulfilling its duty, if costs become a regular concern.
  3. [85]
    The costs dispute in this matter is between the agency and the agent and their client. I consider that all of those persons are sophisticated commercial entities.
  4. [86]
    The owner has had experience in previous property transactions, and had the assistance of her husband who is highly experienced in property transactions.
  5. [87]
    Further, the owner had the benefit of ongoing legal advice throughout the transactions, from two separate firms of solicitors.
  6. [88]
    The owner has made an election in reviewing the decision of the Chief Executive, to attempt to achieve a commercial benefit that she could have attempted to obtain by direct litigation against the buyer, on the basis that it would be more costly to pursue the buyer through a court process.
  7. [89]
    The owner was represented by a Solicitor and Counsel in the course of a two day hearing.
  8. [90]
    The agency and the agent faced the prospect of being required to reimburse the fund, under the AFA Act if a payment was ordered to be made from the fund, and if they were named as liable persons.
  9. [91]
    The owner was also making a claim in relation to bridging finance. That claim was quite confused as to the entities involved. I found that the owner had not established any personal liability by her to pay interest at all, as the loan was taken out by a company which was not a claimant upon the fund.
  10. [92]
    The involvement of a company, and the use of bridging finance, serves to further highlight the commercial nature of the transactions.
  11. [93]
    Whilst this matter has proceeded as a review hearing, I consider that it rather has the hallmarks of commercial litigation between sophisticated private parties. That is a significant matter to consider in considering whether the tribunal should order costs.
  12. [94]
    The cases which I have referred to make reference to the consequences of the outcome of proceedings. I note that the owner is not seeking recovery of loss that she has suffered in terms of damage, but rather is effectively the seeking to obtain the deposit of $80,000 by way of forfeit, whilst still retaining the property which she was free to later sell.
  13. [95]
    Whilst the usual position as to costs as set out in s 100 of the QCAT Act is that each party bear their own costs, there are numerous instances that can be found in the reported decisions of the tribunal across a variety of jurisdictions, where costs orders have been made.
  14. [96]
    Some of those costs orders are made under specific provisions in enabling legislation, but others are made with regard to the provisions of the QCAT Act where no specific provision appears in enabling act.
  15. [97]
    The enabling act in consideration in this matter, the AFA Act, does not make any specific provision as to costs.
  16. [98]
    As a general comment, where the Tribunal has made orders for costs, that has more readily occurred where the matter has had the hallmarks of being a commercial dispute, and particularly where the parties are seen to be sophisticated commercial entities.
  17. [99]
    The agency and the agent have raised the issue of offers of settlement being made prior to the hearing as being relevant considerations as to an award of costs.
  18. [100]
    The owner has submitted that the offers of settlement were unrealistic and made at a very late stage in the proceedings. The owner’s claim was for $82,300. The highest offer of settlement made to her was $15,000.
  19. [101]
    The outcome of the proceedings is that no amount has been ordered to be paid to the owner. Ms Holgar’s submission that the final offer made to her of $15,000 in full and final settlement was of an unrealistic value is not borne out by the outcome of the proceedings, as the owner would have been that much better off if she had accepted the money offer, would have avoided a portion of her own hearing costs, and would not have been exposed to a costs application by the agency or agent.
  20. [102]
    The offer of settlement was made at a late stage of the proceedings, but I accept that it is a relevant element to take into consideration as part of my overall consideration of the question of costs ­– it is not determinative, but it is not irrelevant.
  21. [103]
    The Appeal Tribunal decided not to award costs of the appeal proceeding. It considered whether the appeal was sufficiently founded, and did not consider it was an ill-advisedly weak case, as follows:[62]

[14]  We do not think that Ms Holgar put an ill-advisedly weak case to the Appeal Tribunal. She was unsuccessful, but that does not mean her arguments could not be maintained. We accept Ms Holgar’s submission that, as framed by her, the grounds of appeal involved errors of law or mixed errors of fact and law. We do not think that she sought to merely revisit findings of fact open on the evidence.

  1. [104]
    Those remarks were directed at her case on the Appeal. I have to consider the costs of the original proceeding, and am not bound by the decision of the Appeal Tribunal as to the costs of the appeal. I have to consider the factors relevant to the initial hearing – that was noted by the Appeal Tribunal as follows:[63]

[2]  ….The (agency and agent) have also sought their costs of the review application, which will be dealt with by the Member below.

  1. [105]
    The questions that concerned the Appeal Tribunal were whether an error of fact and/or law was made in the original decision of the Tribunal. Those considerations are distinct to consideration of the originating Tribunal as to costs, which relate to the bringing, conduct of, and result of the original proceedings. It is entirely possible that a decision on costs as to the original proceedings may be different to the decision on costs in a subsequent Appeal proceeding.
  2. [106]
    I adopt the approach described by Senior Member Aughterson in Pound, to balance the underlying concern of s 100 of the QCAT Act with the s 102(3) considerations, with the weight accorded to them being largely dependent on the nature and scope of the proceedings.

S 102(3)(a) Disadvantage

  1. [107]
    These proceedings have been protracted. However, no specific allegation has been raised that the owner acted in a way that unnecessarily disadvantaged the agency or the agent. The mere fact of her pursuing the Review proceedings, and requiring the other parties to incur expense, is not disadvantage in itself.
  2. [108]
    I do not consider that s 103(2)(a) is a relevant consideration in this matter.

S 102(3)(b) Nature and complexity

  1. [109]
    As discussed, I consider that the nature of this matter is that it has all the hallmarks of a commercial dispute between sophisticated parties, and can be compared to a commercial claim in civil litigation.
  2. [110]
    Both parties were legally represented. The issue raised complex questions of law, and it was acknowledged by all parties that it raised a novel question of law in relation to the enabling Act as to whether an agent was under a duty to make actual enquiries as to whether any dispute existed before releasing a deposit.
  3. [111]
    The matter can therefore be seen to fall into the class of complex commercial litigation.

S 102(3)c) Relative strengths of the claims

  1. [112]
    It was submitted by the agency and the agent that the proceeding should never have been pursued by the owner, and that her case was doomed to fail on her own evidence.
  2. [113]
    I do not consider that the owner’s case was without any foundation, as this was a complex set of events. The owner’s case in the principal proceedings was however undeniably weak, as:
    1. Her acknowledgement, that the agent was not advised that she wished to change her instructions that the matter was at an end, removed the foundation of any claim that the agency or agent were aware there was a dispute, and thereby acted in an improper way by releasing the deposit, and
    2. she did not substantiate any clear basis upon which the agency or agent should have been aware that a dispute existed.
  3. [114]
    By contrast, the claims of the agency and the agent, that they were not aware of a dispute, and should not have considered that a dispute may arise between the parties to the transaction about entitlement to the transaction fund or part of the fund, as provided by section 25 of the Agents Financial Administration Act 2014 (Qld), were supported both by their evidence, and by the effect of the evidence of the owner.

S 102(3)(e) The financial circumstances of the parties

  1. [115]
    Whilst no specific evidence was given as to the financial circumstances of the owner or the agency or agent, it is apparent that all three were sophisticated commercial actors, and there was no evident imbalance of power or resources.
  2. [116]
    The submissions of the owner raise the possibility that the proceedings for the agency and agent were being funded by their professional indemnity insurer.[64] The wording of their Solicitor’s affidavit as to his being retained to conduct ‘the defence of the interests of the second and third respondents’ leaves open the possibility that their costs were being paid by their insurer.[65]
  3. [117]
    If the agency and agent’s costs were being paid by their insurer, that in itself would not raise an imbalance as to financial circumstances, as the extent of any applicable excess is unknown, and there is no suggestion that the insurer has sought to use its resources to extend the proceedings, but rather it appears to have acted in a defensive manner responding to the claims and conduct of Ms Holgar as they arose.

Conclusion as to costs

  1. [118]
    As discussed, I will balance the underlying concern of s 100 of the QCAT Act, which is to usually make no order as to costs (having regard to issues of access to justice and the minimisation of costs in the Tribunal), with the considerations in s 102 as to awarding costs against a party in the interests of justice.
  2. [119]
    The dominant factors that influence my consideration as to costs, between the owner and the agency and agent, are that:
    1. this was essentially complex commercial litigation conducted between sophisticated parties,
    2. who were legally represented,
    3. who presented substantial submissions,
    4. where the case being presented by the owner was weak,
    5. where an offer of settlement was made prior to the hearing by the agency and agent on the basis of no costs being sought and
    6. where the total costs of the proceeding significantly exceeded the amount of the claim.
  3. [120]
    Ms Holgar made the election to proceed with a two-day hearing in an attempt to secure the equivalent of the deposit of $80,000.
  4. [121]
    I found that her additional claim for interest in the amount of $2,300 had no basis as it was not incurred by her. I do not however consider that this claim contributed materially to the costs of the matter.
  5. [122]
    The agency and the agent have been put to the significant cost of defending their interests due to the persistence of Ms Holgar in pursuing a weak claim which was not supported by evidence, and by her refusing an offer of settlement which would have resulted in a far superior result for her as it has turned out, and would have minimised costs for all parties.
  6. [123]
    I note that the affidavit of Mr Heath sets out the total costs billed to the agency and agent in defence of the matter as being $51,646.33 (including GST)[66] plus outlays of $3,876.63 (including GST)[67] – making a total of $55,966.96.
  7. [124]
    If the costs of Ms Holgar were anything similar (and that is highly likely, as she was represented by Counsel on the hearing), then the combined total costs of the initial hearing plus the costs of this application, for the owner and the agency and the agent, will have been significantly greater than the amount in dispute of $82,300.00.
  8. [125]
    I do not consider that it can be seen as being in the interests of justice that the agency and the agent were compelled to defend a commercial claim, and have to bear costs on their behalf at the original hearing, and on this application, which probably have by themselves approached the amount in dispute, due to the persistence of Ms Holgar in seeking to recover the equivalent of the deposit that was refunded to the buyer, where the evidence did not support her claim, and where they sought to avoid the costs of the hearing for all parties.
  9. [126]
    I consider that this is a matter in which it is appropriate, on balance, in the interests of justice as provided for by s 102(1) of the QCAT Act, that costs of defending the claim should be awarded in favour of the agency and the agent.

Quantum of costs

  1. [127]
    The agency and the agent seek costs on the District Court scale fixed in the amount of $36,152.43 in respect of professional fees and $3,876.63 in respect of outlays, making a total of $40,029.06.
  2. [128]
    The amount that is being sought by the agency and the agent represents 70% of their actual professional costs plus their outlays. This is submitted by them as being a typical percentage recovered in District Court proceedings.[68]
  3. [129]
    It is submitted for Ms Holgar that the costs claimed far exceeds the costs that could be awarded had this matter proceeded by way of civil claim in the Magistrates Court, which would be the appropriate jurisdiction for the quantum involved.[69]
  4. [130]
    The QCAT Act does not specify any specific scale upon which costs are to be calculated. It is in the discretion of the Tribunal to determine the basis of calculation of costs.
  5. [131]
    The amount of this claim is $82,300. The current upper limit of jurisdiction for civil matters of the Magistrates Court is $150,000, and for the District Court is $750,000. This matter would therefore fall within the jurisdiction of the Magistrates Court if brought in that forum.
  6. [132]
    It is not uncommon for the Tribunal to award costs on the District Court scale, having regard to the more extensive nature of the District Court scale, and to the nature and complexity of the matter.
  7. [133]
    The tribunal is required by s 107 of the QCAT Act to fix the costs if possible.
  8. [134]
    This matter has already extended over almost 6 years since the filing of the Application to review a decision on 14 November 2017.
  9. [135]
    Whilst it is possible for the Tribunal to make an order requiring the costs be assessed, I am reluctant to make such an order, which will only give rise to further costs and time being sustained by all parties.
  10. [136]
    I note that the submissions for Ms Holgar as to the costs in the Magistrates Court do not make an assessment of what the total costs would have been in that jurisdiction. However, they do give four examples of specific items as follows:[70]
  1. The cost claim in the schedule of costs far exceeds the costs that could be awarded had this matter proceeded by way of civil claim in the Magistrates Court, which would be the appropriate jurisdiction for the quantum involved. For example:

a)  ‘BXH’, presumably Mr Heath, billed $2,560 for preparation and appearance at the first day of trial on 29 November 2018. The magistrates Court scale permits $1,670 for a solicitor appearing without Counsel.

b)  ‘BXH’ billed $1,600 for preparation and appearance at the second day of trial on 30 November 2018. The Magistrates Court scale permits $1,145.

c)  ‘TDP”, presumably Mr Pepper, billed $2,498.79 on 29 November 2018 and $2,024.20 on 30 November 2019. Although the schedule of costs does not state that these items were for preparation and appearance at trial, he appeared with Mr Heath and assisted him throughout the trial. The Magistrates Court does not contemplate two solicitors appearing at trial, but rather a solicitor and clerk, the fees permitted for the attendance of a clerk is $355.10 per day.

d)  ‘BXH’ appears to have charged an hourly rate of $320. The maximum permitted under the Magistrates Court schedule for those few items to be assessed by time attendance is $70.40 per quarter hour, or $281.60 per hour.

  1. [137]
    No assessment of costs on the Magistrates Court scale is submitted by the agency and the agent.
  2. [138]
    I consider that the most efficient and cost effective course for me to take, to avoid the incurring of further time and cost by all parties, is for me to make a determination as to costs having regard to the information available to me which has been provided by the parties.
  3. [139]
    I take note of the submission of Ms Holgar that the Magistrates Court scale would be more appropriate having regard to the amount of the claim. I also take note however that this claim was of a complex commercial nature which would not have been out of place in the District Court, apart from the quantum in dispute.
  4. [140]
    I do not consider that it is appropriate to simply determine costs having regard to the District Court scale, having regard to the low quantum of claim involved - but I do not consider that the Magistrates Court scale would sufficiently provide for the complexity of this matter, which would be better indicated by the District Court scale.
  5. [141]
    I consider that an assessment of costs based on the District Court scale, but discounted having regard to the relative amount of Magistrates Court costs, is the most appropriate assessment in this matter.
  6. [142]
    As the only material that has been put to me is a comparison of four examples of the disparity between the two court scales, I propose to use that material to determine costs that are appropriate having regard to the complexity of the matter, by discounting the District Court costs by a percentage relative to the Magistrates Court costs as indicated by the examples provided by Ms Holgar.
  7. [143]
    I have set out the comparisons in the table below:

Item

Magistrates Court

District Court

Percentage of Magistrate Court costs relative to District Court costs

Preparation appearance for Solicitor without Counsel at first day of trial

$1,670.00

$2,560.00

65.2%

Preparation and appearance for  Solicitor without Counsel at second day of trial

$1,145.00

$1,600.00

71.5%

Clerk assisting a solicitor per day

$355.10

$2,498.79 on 29 November 2018

$2,024.20 on 30 November 2019

14.2%

 

17.5%

Solicitor hourly rate

$281.60

$320.00

88.0%

  1. [144]
    I propose to ignore the item as to clerk assisting a solicitor per day, as it is not clear as to the multiplier adopted for the District Court calculation, and is disproportionately different to the other examples.
  2. [145]
    The total of the other three items is 65.2% + 71.5% + 88% which equals 224.7%, which, when divided by three, gives an average percentage of 74.9%.
  3. [146]
    Rounding that average up, I will allow the amount of 75% of the costs calculated on the District Court scale as an appropriate amount. I accept the evidence of Mr Heath that an amount of 70% of the costs incurred is a usual amount recovered in the District Court, and will then apply that percentage.
  4. [147]
    I therefore discount the professional costs claimed in the amount of $51,646.33 to 75%, being $38,734.74; and allow 70% of that figure in the amount of $27,114.32.
  5. [148]
    The agency and the agent have claimed outlays, including GST, of $3,876.63.
  6. [149]
    These outlays have been queried by the submissions for Ms Holgar in respect of a cost of $6,448.13 for obtaining transcripts of the trial; a number of items between 9 May 2019 and 1 November 2019 as to pursuing the delivery of judgement in this matter; and an item for ‘drafting update to insurers in light of the overdue QCAT judgement’.
  7. [150]
    I consider that the outlays as claimed are relevant to the initial proceeding. The evidence was considerable, and it is reasonable to obtain a transcript to prepare submissions for closing submissions. I note that the amount for transcripts is only shown as $3,848.70 in Attachment BJH-1 to the affidavit of Mr Heath. The other items as to pursuing completion of the matter were also relevant.
  8. [151]
    Outlays sit outside the professional scale of costs, and I allow the full amount of outlays of $3,876.63 as claimed.
  9. [152]
    I therefore allow professional costs of $27,114.32, plus outlays of $3,876.63, making a total of $30,990.95.

Conclusion

  1. [153]
    I find that costs of the initial proceeding should be awarded in favour of The Real Estate Exchange (Brisbane) Pty Ltd and Robert Ian Hyde, having regard to s 100 and s 102 of the QCAT Act.
  2. [154]
    I fix the costs payable in respect of professional fees and outlays in the amount of $30,990.95, having regard to the provisions of s 107 of the QCAT Act.
  3. [155]
    I order that Teresa Halina Holgar pay costs of the proceeding (GAR 343-17) to The Real Estate Exchange (Brisbane) Pty Ltd and Robert Ian Hyde. fixed in the amount of Thirty thousand, nine hundred and ninety dollars, and ninety-five cents ($30,990.95).

Footnotes

[1]Holgar v Chief Executive, Department of Justice and Attorney-General & Ors [2019] QCAT 370, [95]

[2]Holgar v Chief Executive, Department of Justice and Attorney-General & Ors [2021] QCATA 113

[3]Holgar v Chief Executive, Department of Justice and Attorney-General & Ors [2022] QCATA 27

[4]Holgar v Chief Executive, Department of Justice and Attorney-General & Ors [2019] QCAT 370 at [1] to [9].

[5]Application for miscellaneous matters, Attachment ‘A’, filed 23 January 2020 at [1].

[6]Ibid [5].

[7]Ibid [7] and [8].

[8]Ibid [10].

[9]Chief Executive’s submissions filed 27 March 2020.

[10]Ibid [3] and [4].

[11]Application for costs – submissions on behalf of the applicant filed 27 March 2020.

[12][2010] QCAT 412.

[13][2010] QCAT 364.

[14][2013] QCAT 234.

[15]Application for costs – submissions on behalf of the applicant filed 27 March 2020 [7].

[16]Ibid [8].

[17]Ibid [10].

[18]Ibid [11] and [14].

[19]Ibid [16].

[20]Ibid [17].

[21]Ibid [20].

[22]Ibid [23] and [24].

[23]Application for costs – further submissions on behalf of the appellant, filed 7 October 2022

[24]Holgar v Chief Executive, Department of Justice and Attorney-General & Ors [2022] QCATA 27, [19] and [20].

[25]Op Cit (further submissions on behalf of the appellant).

[26]Ibid [10].

[27]Ibid [15] .

[28]Submissions of respondents in reply to applicant's costs submissions, filed 9 April 2020.

[29]Affidavit of Brett John Heath dated 8 April 2020.

[30]Ibid [11].

[31]Ibid [11].

[32]Ibid [7].

[33]Ibid [27] and [28].

[34]Ibid [29] to [31].

[35]Ibid [36].

[36]Ibid [37].

[37]Ibid [39] and [40].

[38]Holgar v Chief Executive, Department of Justice and Attorney-General & Ors [2019] QCAT 370, [27]

[39]Ibid [49].

[40]Ibid [51] and [52].

[41]Ibid [62] to [65].

[42]Ibid [66] and [67].

[43][2010] QCAT 412

[44][2016] QCATA 135

[45][2021] QCATA 103

[46][2021] QCATA 137

[47]Holgar v Chief Executive, Department of Justice and Attorney-General & Ors [2022] QCATA 27, [8].

[48][2022] QCAT 225.

[49]Ibid [56].

[50]Tamawood Ltd & Anor v Paans [2005] QCA 111.

[51]Ralacom [24].

[52]Brisbane Marine Pilots [82]-[84].

[53][2023] QCAT.

[54]Ibid [41] to [44.]

[55][2020] QCAT 327, [7].

[56]Transcript, 29 November 2018, 1-65, Line 2 to 25.

[57]Transcript, 1– 65, Line 24.

[58]Evidence of Mr Holgar, 1-89. Line 25.

[59]Evidence of Mr Holgar. 1-91. Line 11.

[60]Evidence of Mr Holgar, 1-98, Line 29.

[61]Evidence of Mr Holgar, 1-98, Lines 41 to 1-99. Line 19.

[62]Holgar v Chief Executive, Department of Justice and Attorney-General & Ors [2022] QCATA 27, [14].

[63]Ibid [2].

[64]Application for costs – Submissions on behalf of the applicant (Ms Holgar) filed 21 February 2020 [17].

[65]Affidavit of Brett Heath, sworn 8 April 2020, [2].

[66]Ibid [7].

[67]Ibid [8].

[68]Ibid [11].

[69]Application for costs – further submissions on behalf of the appellant, filed 7 October 2022, [10].

[70]Ibid [10].

Close

Editorial Notes

  • Published Case Name:

    Holgar v The Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading & Ors (Costs)

  • Shortened Case Name:

    Holgar v The Chief Executive, Department of Justice and Attorney-General, Office of Fair Trading (Costs)

  • MNC:

    [2023] QCAT 408

  • Court:

    QCAT

  • Judge(s):

    Member Paratz AM

  • Date:

    20 Oct 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
Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364
2 citations
Jump To
Cite 1 - [2010] QCAT 364
Cite 2 - [2010] QCAT 364
Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors (costs) [2022] QCAT 225
2 citations
Jump To
Cite 1 - [2022] QCAT 225
Cite 2 - [2022] QCAT 225
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
2 citations
Jump To
Cite 1 - [2021] QCATA 103
Cite 2 - [2021] QCATA 103
Holgar v Chief Executive, Department of Justice and Attorney-General [2019] QCAT 370
5 citations
Jump To
Cite 1 - [2019] QCAT 370
Cite 2 - [2019] QCAT 370
Cite 3 - [2019] QCAT 370
Cite 4 - [2019] QCAT 370
Cite 5 - [2019] QCAT 370
Holgar v Chief Executive, Department of Justice and Attorney-General [2021] QCATA 113
2 citations
Jump To
Cite 1 - [2021] QCATA 113
Cite 2 - [2021] QCATA 113
Holgar v Chief Executive, Department of Justice and Attorney-General [2022] QCATA 27
5 citations
Jump To
Cite 1 - [2022] QCATA 27
Cite 2 - [2022] QCATA 27
Cite 3 - [2022] QCATA 27
Cite 4 - [2022] QCATA 27
Cite 5 - [2022] QCATA 27
Magill v Queensland Law Society Inc (No 3) [2020] QCAT 327
2 citations
Jump To
Cite 1 - [2020] QCAT 327
Cite 2 - [2020] QCAT 327
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
3 citations
Jump To
Cite 1 - [2010] QCAT 412
Cite 2 - [2010] QCAT 412
Cite 3 - [2010] QCAT 412
Stuart v Queensland Building and Construction Commission [2016] QCATA 135
2 citations
Jump To
Cite 1 - [2016] QCATA 135
Cite 2 - [2016] QCATA 135
Tamawood Ltd v Paans[2005] 2 Qd R 101; [2005] QCA 111
2 citations
Jump To
Cite 1 - [2005] QCA 111
Cite 2 - [2005] QCA 111
Warren v Queensland Law Society Incorporated (No 2) [2013] QCAT 234
2 citations
Jump To
Cite 1 - [2013] QCAT 234
Cite 2 - [2013] QCAT 234

Cases Citing

Case NameFull CitationFrequency
Consolidated Gold Coast Holdings Pty Ltd v Body Corporate for Kirrikilli Heights CTS 37540 [2024] QCATA 422 citations
Queensland College of Teachers v Duffin [2024] QCAT 2981 citation
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.