Miles v Gough (No. 2)[2018] QCATA 183

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 14 September 2016 I ordered the dismissal of an appeal by Mr and Mrs Miles against a decision by an adjudicator in the office of the Commissioner for Body Corporate and Community Management.^[1] A subsequent application for leave to appeal to the Court of Appeal was dismissed.^[2]
2. [2]
   The costs of the appeal to the QCAT Appeal Tribunal fall for determination.
3. [3]
   Unless the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) or an enabling Act provides otherwise, parties to proceedings in the tribunal must bear their own costs.^[3] The exception to the general rule regarding costs is found in s 102(1) of the QCAT Act. The tribunal may order a party to pay all or some of another party’s costs if the tribunal considers the interests of justice require the making of such an order.  
4. [4]
   In deciding whether to award costs the tribunal may have regard to a number of matters:

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);
2. the nature and complexity of the dispute the subject of the proceeding;
3. the relative strengths of the claims made by each of the parties to the proceeding;
4. …
5. the financial circumstances of the parties to the proceeding;
6. anything else the tribunal considers relevant.^[4]

The decision in APL109-15

5. [5]
   The applicants were lot owners in ‘Solarus’ a multi-story residential complex in Townsville. Their lot was located on the level above lots owned by the first and second respondents. The third respondent gave the first and second respondents permission to construct louvres over their outdoor living areas. The applicants complained that the structures interfered with the use and enjoyment of their lot. They applied to the Office of the Commissioner for Body Corporate and Community Management for orders for the removal of the structures. An adjudicator dismissed the application. The applicants appealed to the QCAT Appeal Tribunal where they were, again, unsuccessful.
6. [6]
   The applicants’ relied upon the following grounds of appeal:

1. The adjudicator erred in:

1. failing to give proper consideration to the evidence in relation to whether the structures constituted a nuisance or unreasonable interference;
2. failing to give proper consideration to the extent to which there was a substantial degree of interference with the reasonable standards for the enjoyment of the premises as a result of the structures;
3. Failing to conclude that the structures were a nuisance;
4. Failing to conclude that the structures were an unreasonable interference;
5. Failing to consider what just and equitable orders should be made.

2. The adjudicator erred in failing to take into consideration alternative means the respondents could have adopted to achieve the amenity provided by the structures;

The adjudicator erred in failing to undertake a site inspection;

The adjudicator erred by taking into consideration that the structures had been approved by the local authority;

5. The adjudicator erred in applying Tenacity Consulting v Warringah;
6. In applying the test in Tenacity Consulting the adjudicator failed to assess the impact of the interference to the views of the whole property and failed to consider or understand the extent to which the views were affected from different parts of the lot;
7. the adjudicator failed to take into consideration the reasonableness of the structures and, to the extent that he did take this into account, he failed to take into account:

1. the evidence of the diminution in value of the property;
2. the objective reasonableness of the structures;
3. the extent of the evidence in relation to the extent of lost views.

8. the adjudicator failed to analyse and make appropriate findings of fact as to the evidence of the totality of the losses of view;
9. the adjudicator erred in concluding that the losses of view were minor having regard to the nature and value of the lot, its position in the property and the nature and character of the property;
10. the adjudicator erred in failing to make a determination as to which assessments of the diminution in value he preferred;
11. the adjudicator failed to conclude that the level of interference with the appellants’ enjoyment of the lot was sufficiently substantial to demonstrate a breach of s 167 BCCMA.

7. [7]
   The grounds of appeal were numerous. Central to the appeal was the attack by the applicants on the adjudicator’s findings regarding the impact of the structures on the view enjoyed from the applicants’ lot. The applicants also attacked the adjudicator’s findings regarding the impact of heat and glare from the structures on the applicants’ lot.  
8. [8]
   I found that the adjudicator had erred in treating submissions by the respondents as evidence and making findings, in the absence of evidence, that lot owners in the scheme (other than the parties) were not affected by structures erected by other lot owners (other than the parties) that were similar to those constructed by the first and second respondents. I found that the error did not vitiate the adjudicator’s finding that the structures did not cause a nuisance or unreasonably interfere with the use and enjoyment of the applicants’ lot. The applicants failed to make out any of the other grounds of appeal.

What do the parties say?

9. [9]
   The first and second respondents say that, having regard to the matters listed in               s 102(3) of the QCAT Act, they should be entitled to their costs of the appeal. They say that the appellants were legally represented and retained senior counsel for the appeal. The first and second respondents say that the appeal was wholly unsuccessful and that the matter involved considerable complexity and the interpretation and analysis of questions of law.
10. [10]
    The third respondent adopts the submissions on costs by the first and second respondents and says that the applicants should pay the third respondent’s costs of the appeal.
11. [11]
    The applicants refer to the decisions of the tribunal in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)^[5] and McEwen v Barker Builders Pty Ltd^[6] and say that the usual principles in relation to awarding costs in the tribunal apply in respect of appeals from adjudicator decisions under the Body Corporate and Community Management Act 1997 (Qld) (BCCM Act). The applicants say that there are no features of the appeal that require an order for costs against the applicants. They say that there is no established principle that more complex cases or those where Counsel is briefed should attract a different approach to costs than cases where those features are absent. The applicants say that to be entitled to an order for costs the respondents are required to show conduct on the part of the applicants that was improper, inappropriate or would otherwise result in displacement of the usual rule. They say that no such circumstances apply in the present proceedings.
12. [12]
    The applicants say that the matter was not one of any particular complexity or difficulty, limited as it was to an appeal on a question of law. There were no factual matters for determination and the conduct of the appeal by the applicants was efficient and without causing wastage of tribunal resources. The applicants say that the relative strengths of the parties claims were not disproportionate nor had the applicants acted in a way that unnecessarily disadvantaged the respondents. They say that there is no suggestion the appeal was not genuinely motivated.

Consideration

13. [13]
    As has been observed, the starting point in considering costs in tribunal proceedings is that each party should bear their own costs unless the interests of justice require otherwise. What is meant by ‘in the interests of justice’ was explained by then QCAT President, Alan Wilson J in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2):

The phrase “in the interests of justice” is not defined in the Act but is to be construed according to its ordinary and plain meaning, which obviously confers a broad discretionary power on the decision-maker.^[7]

14. [14]
    His Honour also observed in Ralacom:

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.^[8]

15. [15]
    The principles identified in Ralacom apply in tribunal proceedings involving body corporate adjudicator appeals.^[9]
16. [16]
    I will consider each of the matters set out at s 102(3) of the QCAT Act. The matters listed in s 102(3) are not grounds for awarding costs, merely factors the tribunal may take into consideration in determining whether to make a costs order.^[10]

a. Party acting in a way that unnecessarily disadvantages another party

17. [17]
    It is not submitted by any party that the applicants acted at any time in a way that unnecessarily disadvantaged the respondents. There is no suggestion that the applicants were motivated by anything other than to seek to vindicate their position regarding the structures on the respondents’ lots. The applicants were entitled to appeal the decision of the adjudicator. That they pursued their rights and entitlements in the Tribunal is not to be construed as acting in a way that unnecessarily disadvantaged the respondents. 

b. The nature and complexity of the dispute

18. [18]
    As the appeal tribunal has previously held:

The Appeal Tribunal cannot decide that a proceeding is complex simply by a head count of grounds. To qualify as ‘complex’, an appeal should involve difficult or novel legal concepts or technical evidence that requires complex reasoning to enable the Tribunal to make a decision.^[11]

19. [19]
    The appeal was limited to questions of law only and principally involved a consideration of s 167 of the BCCM Act. As has been observed, the applicants relied upon numerous grounds of appeal. The appeal involved a consideration, it would seem for the first time by the tribunal, of whether an obstruction of a view could constitute an unreasonable interference with the use and enjoyment of a lot. In all other respects the appeal was orthodox and involved no novel or complex questions of law.
20. [20]
    As the appeal from the adjudicator was on a question of law the parties did not file fresh evidence.^[12] The material before the tribunal was limited to the submissions by the parties and the documents sent to the Appeal Tribunal by the Office of the Body Corporate Commissioner pursuant to section 290 of the BCCM Act.
21. [21]
    The parties were legally represented in the appeal having been given leave at a directions hearing early in the appeal proceedings. The fact that the parties had been granted leave to be legally represented does raise for consideration the decision of the Court of Appeal in Tamawood Ltd & Anor v Paans.^[13] In Tamawood Keane JA (as he then was) held:

… 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.

…

If orders for costs were not to be made in favour of successful parties in complex cases, then just claims might not be prosecuted by persons who are unable to manage complex litigation by themselves. Such a state of affairs would truly be contrary to the interests of justice; and an intention to sanction such a state of affairs cannot be attributed to the legislature which established the Tribunal.

To say this is not to ignore s 71(5)(b) of the Act. There is a clear distinction, in terms of the interest of achieving justice, between the mere fact of having representation and the fact of having reasonably obtained that representation because of the complexity of the case. In the absence of countervailing considerations, where a party has reasonably incurred the cost of legal representation, and has been successful before the Tribunal, it could not rationally be said to be in the interests of justice to allow that success to be eroded by requiring that party to bear the costs of the representation which was reasonably necessary to achieve that outcome. Finally in this regard, it should also be borne in mind that s 71(4)(a) of the Act expressly recognizes that "the outcome of the proceeding" is a consideration which is relevant to the exercise of the discretion conferred by s 71(1) of the Act.

22. [22]
    In Ralacom Alan Wilson J held that the principles found in Tamawood provide guidance about the circumstances in which it may be in the interests of justice for the tribunal to award costs against parties.^[14]
23. [23]
    It is not immediately apparent as to the basis upon which leave was originally granted to the parties to be legally represented. It does not appear that any party filed an application for representation and there are no written submissions by the parties which may have provided some guidance as to the basis upon which the leave was sought and granted. Having said this, it is not uncommon for parties to be given leave to be legally represented in proceedings in the tribunal involving appeals from body corporate adjudicator decisions.
24. [24]
    As was observed in Tamawood, there is a distinction between the mere fact of having legal representation and the fact of having obtained that representation because of the complexity of the case. I have found that the matter did not involve any novel or complex questions of law and largely involved a consideration of the application of s 167 of the BCCM Act to the particular facts of the case.
25. [25]
    I am not satisfied that the circumstances of the matter point so compellingly to a costs award that they overcome the strong contra-indication against costs orders found in s 100 of the QCAT Act. 

c.  The relative strengths of the claims made by the parties

26. [26]
    Simply because an applicant is unsuccessful in an appeal it does not follow that the applicant’s claim lacked strength or merit. As I have observed, the applicants were entitled to pursue the appeal in the Tribunal. There is nothing to suggest that they were motivated by anything other than a desire to preserve the amenity of their lot, contributed to by the views from the lot. A decision to pursue an appeal, if reasonably based and not motivated to delay or obstruct, will generally not form the basis under s 102(3)(c) for a costs order.

e. The financial circumstances of the parties

27. [27]
    None of the submissions address the relevance of the financial circumstances of the parties. The applicants and the first and second respondents are individual lot owners. The third respondent is the body corporate.  No doubt the parties have all expended considerable amounts on legal costs and outlays. The third respondent’s costs burden will be met by all of the lot owners. The costs incurred by the applicants, and first and second respondents must be borne by them individually. I accept that the respondents have all, to varying extents, incurred a financial burden as a result of successfully meeting the appeal by the applicants. Of itself however, this factor is not sufficient to justify an award of costs. Of the individual financial circumstances of the parties, there is no evidence before the Appeal Tribunal and I can form no view as to the ability or otherwise of the parties to bear a costs order.   

f.  Other relevant considerations

28. [28]
    The discretion given to the tribunal under s 102(3)(f) to have regard to anything else considered relevant is a very broad one. The parties have not pointed to any other such consideration.

Conclusion 

29. [29]
    I am not persuaded that the interests of justice require an order for costs. There is no order as to costs.