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Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust v Radford (No. 2) QCATA 73
Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford (No. 2)
 QCATA 73
Neverfail Pty Ltd, as trustee for The Harris Siksna Family Trust; Andrew John Wilkinson and Ilma Raita Wilkinson as trustee for The Wilma Family Trust
Kathryn Michelle Radford
On the papers
Senior Member Brown
7 June 2017
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – procedure – costs – whether interests of justice require an order for costs – whether an order for costs should be made after the applicants made an offer to settle which was not accepted
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 66
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 47, 47(1), 47(2)(a),
Queensland Civil and Administrative Tribunal Rules 2009 (Qld) rr 86, 86(1), 86(2)
Uniform Civil Procedure Rules 1999 (Qld) rr 353, 355, 358(1), 360, 361
Charter Pacific Corporation Ltd v Belrida Enterprises Pty Ltd  2
Qd R 619
Deputy Commissioner of Taxation v Salcedo  2 Qd R 232
Hegarty v Queensland Ambulance Service  QSC 110
Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford  QCATA 203
Radford v Neverfail Pty Ltd as Trustee for the Harris Siksna Family Trust & Ors  QCAT 334
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)  QCAT 412
Re Cameron  2 Qd R 218
Tamawood Ltd & Anor v Paans  QCA 111
Westpac Banking Corporation v Jamieson  QCA 84
APPEARNCES and REPRESENTATION (if any)
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- On 22 December 2016, the Appeal Tribunal ordered that the original decision of the Tribunal be set aside and that the application for a tree dispute brought by Dr Radford be dismissed. The appellants will be referred to as the applicants. The parties have, as directed, filed submissions on both the costs of the proceedings at first instance and of the appeal.
- The issues for determination are:
- Did the decision of the Appeal Tribunal constitute a dismissal of Dr Radford’s application pursuant to s 47 of the QCAT Act and should costs be ordered pursuant to that section?
- Should an order for costs be made pursuant to s 48(1) of the QCAT Act?
- Should an order for costs be made pursuant to r 86 of the QCAT Rules, on the basis that the applicants made an offer to settle the matter which was not accepted in circumstances where the final decision of the Appeal Tribunal was not more favourable to Dr Radford than the offer?
- Do the interests of justice require the making of an order for costs in the applicants’ favour pursuant to s 102(1) of the QCAT Act?
The Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDA) and costs
- Other than as provided under the QCAT Act or an enabling Act, each party to a proceeding in the tribunal must bear their own costs for the proceeding.
- The tribunal may make an order requiring a party to pay all or a stated part of another party’s costs if the tribunal considers the interests of justice require the making of such an order.
- The QCAT Act sets out a number of matters the tribunal may have regard to in deciding whether to make an order for costs including:
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);
the nature and complexity of the dispute the subject of the proceeding;
the relative strengths of the claims made by each of the parties to the proceeding;
the financial circumstances of the parties to the proceeding;
anything else the tribunal considers relevant.
- Costs may be awarded at any stage of a proceeding or after the proceeding has ended.
- The NDA is an enabling Act but does not provide for the awarding of costs other than the costs of tree works or compensation for damage caused by a tree.
A brief history of the proceeding
- Dr Radford filed an application for a tree dispute on 24 February 2014. On 7 May 2014, the tribunal granted leave for two of the respondents, Andrew Wilkinson and Ilma Wilkinson, to be represented by Zinta Harris and Craig Harris. An application by Dr Radford to be legally represented was refused.
- The tribunal appointed an assessor to inspect the tree the subject of the application (‘the tree’) and a report was provided by the assessor to the tribunal. After statements of evidence were filed by the parties, the matter proceeded to a hearing on 25 May 2015.
- On 31 August 2015 the tribunal ordered the removal of the tree and remedial plantings paid for by Dr Radford. There was no order made as to costs.
- The respondents in the proceeding below subsequently appealed and on 22 December 2016 the Appeal Tribunal granted the appeal, setting aside the tribunal’s original decision and dismissed the application for a tree dispute.
Did the decision of the Appeal Tribunal constitute a dismissal of Dr Radford’s application pursuant to s 47 of the QCAT Act and should costs be ordered under that section?
- The applicants say that an order for costs should be made pursuant to s 47(2)(c) of the QCAT Act to compensate them for the costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.
- The applicants say that they were wholly successful on the appeal in circumstances where the proceeding involved the determination of complex legal issues. They say that Dr Radford’s case was weak and without merit.
- The applicants say that they are trustees of two family trusts with fiduciary duties to the beneficiaries of those trusts and that the applicants have suffered significant out of pocket expenses and financial losses attributable to responding to the application and pursuing the appeal. The applicants say that Dr Radford has the financial wherewithal to satisfy an order for costs.
- Dr Radford says that the parties should bear their own costs of the proceeding. She says that the tree dispute is not commercial in nature. Dr Radford relies upon submissions made in the proceedings below by the applicants to the effect that the dispute did not involve complex questions of fact or law and was ‘a simple tree matter’.
- Dr Radford says that the applicants were not entirely successful in every aspect of the appeal and that the Appeal Tribunal made findings including that the tree had obstructed the view of the city skyline from Dr Radford’s property.
- Section 47 of the QCAT Act relevantly provides that the tribunal may, among other things, dismiss or strike out a proceeding or part of a proceeding if the tribunal considers the proceeding is frivolous, vexatious or misconceived; lacking in substance; or otherwise an abuse of process. The tribunal may order the proceeding be dismissed or struck out or make a costs order against the party who brought the proceeding to compensate another party for any reasonable costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.
- Section 47 of the QCAT Act provides for various alternative orders the tribunal may make if the tribunal considers that a proceeding or part of a proceeding is frivolous, vexatious or misconceived, lacking in substance, or otherwise an abuse of process. Section 47 is to be found in Chapter 2, Part 5, Division 1 of the QCAT Act. Part 5, Division 1 deals with the early end of proceedings. Section 47 is concerned with the bringing of an early end to a proceeding by way of a summary dismissal, as opposed to a proceeding decided by the tribunal, on the merits, after a full hearing.
- Section 47 of the QCAT Act is essentially a summary judgment power, the exercise of which deprives a party of the opportunity of a hearing. It is a power exercised only in the clearest of cases.
- The submission by the applicants that it should be entitled to its costs of the proceeding and the appeal on the basis that the claim by Dr Radford was misconceived or lacking in substance is, itself, misconceived. The applicants did not bring an application under s 47 of the QCAT Act. No order was made by the Tribunal under s 47 of the QCAT Act. The Appeal Tribunal made no finding that the proceeding fell within s 47(1) of the QCAT Act. There was no early end to the proceeding. To the contrary, there was a hearing and an appeal.
- Section 47 of the QCAT Act cannot be relied upon by a party, after a proceeding has been finally heard and determined by the tribunal on the merits, as the basis for an application for a costs order. There is no basis for an order for costs to be made under s 47 of the QCAT Act as submitted by the applicants.
Should an order for costs be made pursuant to s 48(2) of the QCAT Act?
- The applicants rely upon s 48(1) of the QCAT Act and say that Dr Radford has unnecessarily disadvantaged them and that an order compensating them for costs incurred unnecessarily is appropriate pursuant to s 48(2) of the QCAT Act.
- The disadvantage said to have been caused by Dr Radford is that occasioned to the applicants in having been forced to respond to a claim in circumstances where the evidence relied upon by Dr Radford was inadequate, where the application by Dr Radford was vexatious and an abuse of process and in circumstances where Dr Radford failed to comply with various directions made by the tribunal.
- The applicants’ reliance upon s 48 of the QCAT Act is also misconceived. Section 48(2) of the QCAT Act provides that the Tribunal may make certain orders, including dismissing or striking out a proceeding, in circumstances where a party acts in a way that unnecessarily disadvantages another party to the proceeding. Section 48(1) of the QCAT Act sets out a (non-exhaustive) list of actions that might be the basis for finding that a party has unnecessarily disadvantaged another party including failing to comply with tribunal directions, attempting to deceive another party and vexatiously conducting the proceeding.
- The tribunal may make an order for costs against a party causing disadvantage as an alternative to striking out or dismissing a proceeding.
- The thrust of the applicants’ submission is that Dr Radford’s claim, and her conduct of the proceeding, was vexatious. What makes a proceeding vexatious was considered in Re Cameron:
Although there are sometimes statutory indications, the broad test potentially concerns such factors as the legitimacy or otherwise of the motives of the person against whom the order is sought, the existence or lack of reasonable grounds for the claims sought to be made, repetition of similar allegations or arguments to those which have already been rejected, compliance with or disregard of the court’s practices, procedures and rulings, persistent attempts to use the court’s processes to circumvent its decisions or other abuse of process, the wastage of public resources, and funds, and the harassment of those who are the subject of the litigation which lacks reasonable basis.
- Dr Radford succeeded at first instance. It was on appeal that Dr Radford was ultimately unsuccessful on the basis that she had failed to establish a severe obstruction of a view existing from her dwelling at the time she took possession of the land on which the dwelling was situated. The ultimate finding of the Appeal Tribunal was that Dr Radford had failed to establish a basis for an order under s 66 of the NDA. The applicants do not appear to question Dr Radford’s motives in pursuing the application and any such submission would be rejected on the basis that there is no evidence to support such a finding.
- Dr Radford was ultimately unsuccessful as a result of the determination of an issue not previously considered by the tribunal, specifically the impact of the relocation and renovation of a dwelling on a claim for an obstruction of a view.
- At no stage was an application pursuant to s 48 of the QCAT Act brought by the applicants. There has been no finding that Dr Radford acted in a way that unnecessarily disadvantaged the applicants and there is no basis for such a finding. There is therefore no basis for an order for costs under s 48(2)(c) of the QCAT Act.
Should an order for costs be made pursuant to r 86 of the QCAT Rules, on the basis that the applicants made an offer to settle the matter which was not accepted in circumstances where the final decision of the Appeal Tribunal was not more favourable to Dr Radford than the offer?
- The applicants say that they made an offer to settle after the commencement of the proceeding and that the offer was on terms at least as favourable to Dr Radford as the final decision of the tribunal. Relying upon rules 86(1) and 86(2) of the QCAT Rules, the applicants say that Dr Radford should pay all reasonable costs incurred by them in conducting the proceeding after the offer was made and that such costs should be awarded on an indemnity basis.
- The applicant relies upon three (3) offers to settle made to Dr Radford. The first two (2) offers were made before Dr Radford filed the application for a tree dispute. Thethird offer was made during the proceeding and is expressed as two offers in the alternative.
- The tribunal may award a party who makes an offer all reasonable costs incurred by that party in conducting the proceeding after the offer was made if:
- a party to a proceeding makes another party to the proceeding a written offer to settle the dispute the subject of the proceeding; and
- the other party does not accept the offer within the time the offer is open; and
- in the opinion of the tribunal, the decision of the tribunal in the proceeding is not more favourable to the other party than the offer.
- Rule 86 is clear in applying only to offers made after the commencement of proceedings referring to an offer made by a party to a proceeding to settle the dispute the subject of the proceeding. The analogous rule in the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) is r 353 of which it has been observed:
Two features of r 353 should be noted at this stage. First, the rule empowers a “party”. In other words, this is the rule which founds offers by plaintiffs, defendants or any other party to proceedings. Both r 360 and r 361 proceed on the basis that the plaintiff or the defendant as the case may be has made an offer under r 353. Second, an offer under the rule must be to settle one or more of the “claims” in the proceeding.
- In the same way as r 353 of the UCPR empowers a party to a proceeding in the courts, r 86 of the QCAT Rules empowers parties to a proceeding in the tribunal. Until there is a proceeding on foot, the rule has no application.
- The third offer is set out in a letter from the applicants to Dr Radford dated 20 May 2015 and contains alternative offers which will be referred to as offer A and offer B. The applicants offered to resolve the dispute the subject of the proceeding on the following terms:
- Dr Radford withdraw the application with each party bearing their own costs;
- Dr Radford consent to an order dismissing the application for a tree dispute;
- Dr Radford reimburse the applicants for its share of the costs of the appointment of an arborist by the tribunal;
- Dr Radford pay for the cost of the removal of the trees identified in the report of the assessor/arborist appointed by the tribunal;
- Dr Radford pay for the cost of remedial, mature specimen, plantings of two (2) trees;
- Dr Radford be responsible for make good costs after the removal and replanting;
- Dr Radford agree that the removal of the trees would not affect the adjoining land owners from erecting buildings which may obstruct the view from the dwelling on Dr Radford’s land;
- Dr Radford agree not to make any further application to the tribunal in relation to the impact, if any, on her land of the remedial plantings.
- Thethird offer was stated to be open for acceptance until 5:00pm on 22 May 2015. Needless to say, Dr Radford did not accept the third offer.
- The formal offer regime under the QCAT Rules differs from that under the UCPR in a number of important respects:
- An offer under the UCPR must be open for acceptance for a period of not less than 14 days. No period during which an offer must be open for acceptance is prescribed by the QCAT Rules;
- Acceptance of an offer under the UCPR must be in writing. The QCAT Rules are silent on the mode of acceptance;
- If a plaintiff (called an applicant in the tribunal) makes an offer under the UCPR and obtains a result no less favourable than the offer, the court must award the plaintiff the plaintiff’s costs of the proceeding on the indemnity basis. If a defendant (called a respondent in the tribunal) makes an offer under the UCPR and the plaintiff does not obtain a result more favourable than the offer, the defendant must pay the plaintiff’s costs on the standard basis to the date of service of the offer and the plaintiff must pay the defendant’s costs on the standard basis thereafter. The court retains a general discretion to make another order if appropriate. Rule 86 of the QCAT Rules contains no presumption as found in the equivalent UCPR rules.
- As noted, the costs consequences provisions under the UCPR relating to offers to settle are expressed in mandatory terms subject to the exercise by the court of a discretion to make another order for costs if appropriate.
- The hearing below was listed on Monday 25 May 2015. The third offer was made on 20 May 2015 and expired on 22 May 2015, the Friday prior to the commencement of the hearing. In this respect, the offer was made very late in the proceeding. In addition to being made very late, it was open for acceptance for only two days, expiring on the last working day before the hearing. There was, in effect, one clear day for Dr Radford to consider the offer.
- It has been held in relation to the UCPR costs rules:
Rule 360 is clearly designed to encourage compromise, and it evinces a clear policy choice that in the case of an offer by a plaintiff, if the preconditions are made out, indemnity costs from the inception of the proceeding should be allowed. This is in contrast to the position of a defendant who makes a successful offer: costs are to be awarded on the standard basis and there is a cut off point of the making of the offer.
- It may be said of r 86 that, like its UCPR equivalent, it encourages the early compromise of proceedings, although the rule does not go as far as the UCPR in dealing with the costs consequences of an offer. The effect of ss 102 and 105 of the QCAT Act and r 86 of the QCAT Rules does not create a presumption that costs should follow the event unless another order is considered more appropriate by the tribunal. The approach to costs in the tribunal is stated in the following passage from Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2):
Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.
- The circumstances relevant to the exercise of the discretion to award costs are those found at ss 102(3), 103, 104 and 105 of the QCAT Act. One of those considerations is whether a party has made an offer to settle and has achieved a result as favourable, or more favourable, to the party than the offer. It is not the most important consideration but part of the matrix of circumstances to be weighed in exercising the discretion to award costs. There is no hierarchy of considerations nor any particular weighting to be afforded to one matter over others however the overarching consideration is the interests of justice. Each case must be considered according to its own facts and circumstances.
- The making of an order for costs does not automatically follow the rejection of an offer by a party who subsequently obtains a less favourable judgment. It is necessary to consider whether a party has acted unreasonably or imprudently in not accepting an offer. Relevant considerations include:
- the stage of the proceeding at which the offer was received;
- the time allowed to the offeree to consider the offer;
- the extent of the compromise offered;
- the offeree’s prospects of success, assessed as at the date of the offer; and
- the clarity with which the terms of the offer were expressed.
- The third offer was made five days before the hearing and expired two days before the hearing. The offer was open for acceptance for a period of less than two clear days. Whilst there is no doubt that the offer was expressed in clear terms, it was made very late in the proceeding and was open for acceptance for a very short period of time.
- Given the delay by the applicants in making the offer, the lateness of the offer relative to the hearing and the very limited time Dr Radford had to consider the offer, the failure by Dr Radford to accept the offer is not a compelling circumstance warranting an order for costs in favour of the applicants.
Do the interests of justice require the making of an order for costs in the applicant’s favour pursuant to s 102(1) of the QCAT Act?
- The applicants rely upon the complexity of the issues for determination in the proceeding as a ground for awarding costs, relying upon s 102(3)(b) of the QCAT Act.
- The applicants’ submission in this regard is somewhat at odds with its earlier submissions made when Dr Radford sought leave to be legally represented in the proceeding below. In those earlier submissions, the applicants said that the matter was a simple tree dispute that did not warrant a grant of representation to Dr Radford.
- Generally speaking, disputes in relation to trees are not complex. The present dispute was no exception. There was but one tree said to severely obstruct the view from Dr Radford’s dwelling. The renovation of the dwelling subsequent to Dr Radford’s purchase of the land introduced issues for determination which had not previously been considered and determined by the tribunal. Those issues were narrow in scope and not complex.
- Whilst ultimately unsuccessful, the claim by Dr Radford could not be said to have lacked merit. That Dr Radford was ultimately unsuccessful on appeal does not speak to the merits of the claim. There is no doubt that the dispute between the parties has had a long and eventful history in the Tribunal. It is also undoubtedly the fact that both parties have invested considerable time and effort in the conduct of the proceedings both at first instance and on appeal. It is however the interests of justice that determine whether an order for costs should be made. In all of the circumstances the interests of justice do not require the making of an order for costs.
- Accordingly, there is no order for costs in this appeal or in the proceeding below.
 QCAT Act s 100.
 Ibid s 102(1).
 Ibid s 102(3)(a).
 Ibid s 102(3)(b).
 Ibid s 102(3)(c).
 Ibid s 102(3)(e).
 Ibid s 102(3)(f).
 QCAT Rules r 86.
 QCAT Act s 105.
 Ibid s 106.
 Decision made 23 March 2015.
 Radford v Neverfail Pty Ltd as Trustee for the Harris Siksna Family Trust & Ors  QCAT 334.
Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford  QCATA 203.
 QCAT Act ss 47(1), 47(2)(a).
 Ibid s 47(2)(a).
 Ibid s 47(2)(c).
 Ibid s 47(1).
 Deputy Commissioner of Taxation v Salcedo  2 Qd R 232.
 QCAT Act ss 48(1)(a), 48(1)(e) and 48(1)(f).
 Ibid s 48(2)(c).
  2 Qd R 218 (footnotes omitted).
 QCAT Rules r 86(2).
 Ibid r 86(1).
 Charter Pacific Corporation Ltd v Belrida Enterprises Pty Ltd  2 Qd R 619.
 Affidavit of Zinta Jana Harris filed 20 January 2017, exhibit ZJH-2.
 UCPR r 355(1).
 UCPR r 358(1).
 Ibid r 360(1) – the rule applies only to the Plaintiff’s first offer satisfying r 360(1).
 Ibid rr 361(1)-(2).
 Ibid rr 360(1)-(2).
Hegarty v Queensland Ambulance Service  QSC 110.
Tamawood Ltd & Anor v Paans  QCA 111.
  QCAT 412.
 Westpac Banking Corporation v Jamieson  QCA 84.
- Published Case Name:
Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford (No. 2)
- Shortened Case Name:
Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust v Radford (No. 2)
 QCATA 73
07 Jun 2017