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Bakir v Body Corporate for Chevron Renaissance (No 4)[2019] QCATA 28

Bakir v Body Corporate for Chevron Renaissance (No 4)[2019] QCATA 28

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Bakir v Body Corporate for Chevron Renaissance & Ors (No 4) [2019] QCATA 28

PARTIES:

RON BAKIR

(applicant/appellant)

 

v

 

BODY CORPORATE FOR CHEVRON RENAISSANCE CTS 30946

(first respondent)

TEO TRAN & A.C.N. 068 118 347 PTY LTD

(second respondents)

APPLICATION NO/S:

APL076-15

MATTER TYPE:

Appeals

DELIVERED ON:

7 March 2019

HEARING DATE:

18 June 2018

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

Senior Member Howard

ORDERS:

  1. The application for interim order filed 21 March 2017 is refused.
  2. The application for interim order filed 6 April 2017 is refused.
  3. The application for miscellaneous matters filed 4 April 2018 is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – PARTIES AND NON-PARTIES – COSTS IN PROCEEDINGS WHERE MUTLIPLE PARTIES – COSTS AGAINST ONE OF SEVERAL DEFENDANTS: BULLOCK AND SANDERSON TYPE ORDERS – where Act provides costs may be awarded in the interests of justice

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DISCONTINUANCE AND WITHDRAWAL – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANAT OR RESPONDENT:      STAY      OR      DISMISSAL    OF PROCEEDINGS – where committee authorised the filingof a costs application where body corporate subsequently ratified the decision to pursue costs application

Body Corporate and Community Management Act 1991 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100

Ainsworth v Albrecht (2016) 261 CLR 167

Bakir v Body Corporate for Chevron Renaissance CTS 30946 & Ors [2017] QCATA 12 (31 January 2017)

Bakir v Body Corporate for Chevron Renaissance & Tran[2016] QCATA 33 (5 May 2016)

Bakir v Tran & Body Corporate for Chevron Renaissance[2015] QCATA 164 (17 November 2015)

Chevron Renaissance [2015] QBCCMCmr 15

McEvoy & Anor v The Body Corporate for No 9 Port Douglas Road (2013) LT(A) R 326

Queensland All Codes Racing Industry Board v Abbott (No. 2) [2016] QCATA 49 (3 March 2016)

Queensland Racing Integrity Commission v Vale [2017] QCATA 110 (10 October 2017).

Sharples v O'Shea [1999] QSC 190 (12 November 1999) Tamawood Ltd & Anor v Paans [2005] 2 Qd R 101 Turner v Macrossan & Amiet Pty Ltd (No 2) [2016] QCAT 255 (5 February 2016)

APPEARANCES
& REPRESENTATION:

 

Applicant:

Mr Jackson, instructed by Russells

First respondent:

Mr K Pai, solicitor of Bugden Legal

Second respondents:

Mr B Strangman, instructed by MacGregor O'Reilly Nash Solicitors

REASONS FOR DECISION

  1. [1]
    This appeal from the decision of an adjudicator in the Office of the Commissioner for Body Corporate and Community Management has had a long and eventful history in the Tribunal. The substantive appeal has been determined. The only remaining issue is the costs of the appeal.

A brief history of the proceedings

  1. [2]
    Central to the dispute between the parties were two motions (‘motion 17’ and ‘motion 18’) proposed by the Body Corporate for Chevron Renaissance (‘the Body Corporate’) which provided for the rescission of some grants of exclusive use, and the imposition of conditions on other grants of exclusive use, of certain common property allocated to lots owned by Mr Bakir in the scheme and a grant of exclusive use of another area to Mr Bakir. Both motions, which required a unanimous vote to pass, were defeated by votes cast against the motions by the second respondents.
  1. [3]
    Following an application to the Commissioner for Body Corporate and Community Management by the Body Corporate, naming Ms Tran and ACN 068 118 347 Pty Ltd (ACN) as respondents, an adjudicator made a decision giving effect to motion 17, but not motion 18.
  2. [4]
    Mr Bakir appealed the adjudicator’s decision to the Appeal Tribunal. The Body Corporate, Ms Tran and ACN were joined by Mr Bakir as respondents.
  3. [5]
    The appeal was listed for hearing on 16 and 17 November 2015. It became apparent at the hearing that lot owners who had made submissions to the Commissioner as part of the adjudication process had not been made aware of the appeal and as a result were not able to make an informed decision about whether or not to be involved in the proceedings. In an earlier decision, we identified a lacuna in the statutory scheme provided by the Body Corporate and Community Management Act 1991 (Qld) (‘BCCM Act’) as read with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) in relation to appeals from adjudicator decisions. We adjourned the hearing and made directions for service, upon those lot owners who had lodged submissions in the adjudication process, of copies of the application for appeal and the submissions filed by the parties. We also issued directions requiring any of those submitters who wished to do so to apply to be joined as a party.[1] The costs of the adjourned hearing were reserved.
  4. [6]
    Mr Bakir raised two preliminary issues at the hearing on 16 November 2015. The first concerned the nature of an appeal from a decision by an adjudicator (specifically, whether such an appeal is an appeal in the strict sense or an appeal by way of rehearing). The second was an application to rely upon fresh evidence. We determined those issues prior to the final hearing, finding that the appeal was an appeal in the strict sense and refusing Mr Bakir’s application to rely upon fresh evidence.[2] There was no order as to costs.
  5. [7]
    The appeal was heard on 15 August 2016 and our decision delivered thereafter.[3] The appeal was allowed. The decision of the adjudicator, as far as it related to motion 18, was set aside and the original application relating to motion 18 was remitted to the adjudicator for reconsideration.

The present applications

  1. [8]
    Mr Bakir has filed an application seeking an order that the second respondents, or alternatively Mr Thomas Royston (as representative of the second respondents), pay his costs of the appeal fixed in the amount of $20,000[4] (the applicant’s application for costs). The Body Corporate has filed an application seeking an order that the second respondents, or alternatively Mr Thomas Royston (as representative of the second respondents), pay its costs of the appeal fixed in the amount of $10,000[5]  (the body corporate’s application for costs). The second respondents have applied to strike out the Body Corporate’s application for costs (the strike out application).[6]
  1. [9]
    The applications fall for determination.

Costs in the tribunal

  1. [10]
    The relevant enabling Act in respect of the appeal is the BCCM Act. The BCCM Act is silent on costs. Accordingly, the question of costs falls to be determined under the QCAT Act.
  2. [11]
    Unless the QCAT Act or an enabling Act provides otherwise, parties to proceedings in the tribunal must bear their own costs.[7] An 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.
  3. [12]
    In deciding whether to award costs, s 102(3) of the QCAT Act sets out a number of matters the tribunal may have regard to in considering whether an order for costs is required to be made:
    1. (a)
      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. (b)
    the nature and complexity of the dispute the subject of the proceeding;
  2. (c)
    the relative strengths of the claims made by each of the parties to the proceeding;

  1. (e)
    the financial circumstances of the parties to the proceeding;
  2. (f)
    anything else the tribunal considers relevant.[8]

The strike out application

  1. [13]
    Ms Tran and ACN say that there is no evidence of a decision by the Body Corporate to pursue the application for costs. They submit that, as the Body Corporate has not authorised the application for costs, the application should be dismissed or struck out.
  2. [14]
    The second respondents rely upon an affidavit by Ms Tran.[9] In her affidavit Ms Tran deposes to having reviewed copies of the minutes of committee meetings and minutes of general meetings of the Body Corporate. She says that she is unable to identify any decision by the Body Corporate to engage solicitors to pursue the application for costs.
  3. [15]
    The second respondents also rely upon two further affidavits by Ms Tran.[10] Exhibited to one of Ms Tran’s affidavits is a letter of advice from Bugden Legal to the Body Corporate dated 27 July 2017.[11] It is clear from the letter that the Body Corporate instructed the solicitors to review the status of the Body Corporate’s application for costs. The solicitors say:

We are instructed that the body corporate did not authorise the Costs Application.

  1. [16]
    It is unclear who provided instructions to the solicitors to prepare the letter of advice. Ms Tran deposes to the fact that Mr Royston attempted, without success, to conduct a search of the Body Corporate records and that she was not permitted to conduct a physical search of the records.[12]
  2. [17]
    The Body Corporate says that the committee authorised the filing of the costs application. The Body Corporate says that the decision to file the costs application is a decision the committee may make on behalf of the Body Corporate pursuant to s 100(1) of the BCCM Act. In any event, says the Body Corporate, regardless of whether a valid decision was made, the committee subsequently ratified the decision to pursue the costs application.
  3. [18]
    At the hearing of the costs applications and the application to strike out, counsel for the the second respondents, Mr Strangman, conceded that authority for an action by a body corporate may be retrospective by subsequent ratification. However Mr Strangman argued that the subsequent resolution of the committee on 16 April 2018 was limited to ratifying the pursuit of the application for costs and did not extend to engaging solicitors to act in respect of the application. Mr Strangman submitted that, on the evidence, only one committee member authorised the engagement of solicitors to act in the costs application.
  4. [19]
    A decision of the committee is a decision of the body corporate[13] except in relation to a restricted issue under the relevant regulation module.[14]A restricted issue includes a decision to start a proceeding, other than a counterclaim, third-party proceeding or other proceeding in relation to a proceeding to which the body corporate is already a party.[15]
  5. [20]
    The evidence includes an email from the body corporate manager, Ms Daly, to the members of the Body Corporate committee with the exception of Mr Bakir.[16] Ms Daly sought instructions from the committee members to engage solicitors to pursue the costs application. There are, in evidence, a number of emails from various committee members in response. It is not necessary for us to set out the responses, suffice it to say we are satisfied the evidence supports a finding that the committee authorised the filing of the costs application and the engagement of solicitors to prepare and file the costs application. The decision by the committee was not one relating to a restricted issue. The costs application is an interlocutory application in the appeal proceedings and the decision to pursue the application was therefore not a decision to ‘start a proceeding’. The committee had authority to make the decision.
  1. [21]
    Even had we not been satisfied that the committee had authorised the filing of costs application, we are satisfied that the committee subsequently ratified the decision. On 16 April 2018 the committee passed a resolution in the following terms:

RESOLVED THAT the Committee, for an abundance of caution only, ratifies the Application for Interim Order lodged with the Queensland Civil and Administrative Tribunal on 6 April 2017 on behalf of the Body Corporate in relation to case number APL076-15, being a proceeding in which the Body Corporate is the First Respondent…

  1. [22]
    A body corporate may retrospectively authorise the actions of a committee.[17] The wording of the ratifying resolution is, in our view, sufficiently broad to authorise the engagement of the solicitors to prepare and file the costs application. This is particularly so in the context in which the resolution was passed. The resolution was clearly in response to the application to dismiss filed by the second respondents. As the Court of Appeal observed in McEvoy v Body Corporate for No 9 Port Douglas Road,[18] and which observations are directly relevant in the present case, the committee members could not have been in any doubt as to what they were being asked to vote for.
  2. [23]
    Even if we had not been satisfied that the resolution of 16 April 2018 ratified the decision to engage the solicitors to prepare the application, the committee clearly ratified the decision to pursue the costs application. It is not in dispute that the Body Corporate authorised the engagement of its current solicitors. The effect of any deficiency or irregularity relating to the original engagement of the solicitors would in any event be limited to the assessment of costs, not the entitlement to pursue an order for costs.
  3. [24]
    It follows that the application for miscellaneous matters by the second respondents must be refused.

Mr Bakir’s application for costs

  1. [25]
    The body corporate, although named as a respondent, did not oppose the orders sought by Mr Bakir. As we previously observed:

The Body Corporate, as outlined earlier, made the application to the Commissioner for orders giving effect to the motions. Although all lot owners comprise the Body Corporate under the BCCM Act, the committee for the Body Corporate effectively acts on behalf of the Body Corporate. It has played a limited role in the appeal proceedings. It describes its role variously as ‘neutral’ and as ‘a watching brief’, although on the second day of the hearing, it submitted that if it was to take the (sic) position, that it would support the appeal.

The particular circumstances of this matter, in which it is clear that the Body Corporate, acting through the committee of the Body Corporate, does not represent the broader interests of the lot owners (or the other submitters), have

brought into sharp focus the apparent lacuna in the statutory scheme provided by the BCCM Act as read with the QCAT Act in relation to appeals.[19]

  1. [26]
    This finding has particular relevance in considering the application for costs by the Body Corporate. The authors of Quick on Costs[20] makes the following comments in relation to applications for costs by one respondent against another respondent:

As a general rule an order would not be made that one defendant should pay another's costs whether both defendants as between themselves and the plaintiff were unsuccessful or one was successful and one was unsuccessful. This was because it was not possible to order one party to pay costs to another on the same side of the record. The Court of Chancery devised the expedient of ordering the plaintiff to pay the costs of the defendant against whom he or she had failed but allowing her or him to add them to the costs recoverable from the defendant against whom he or she had succeeded. It is only under the Judicature Acts 1873-1875 (UK) or their derivatives that the courts have full power to order one defendant to pay costs to another by Bullock orders.[21]

  1. [27]
    As between defendants, there are two types of costs orders. A Bullock order is an order that the plaintiff pay the costs of the successful defendant(s) but add those costs as a disbursement to the plaintiff's own costs against the unsuccessful defendant. A Sanderson order is an order made directly against an unsuccessful defendant to pay the costs of a successful defendant, as well as the costs of the plaintiff. In making a Bullock order or a Sanderson order, a court must be satisfied that it was reasonable and proper for the plaintiff to have sued the successful defendant and there is something in the conduct of the unsuccessful defendant which would justify making the order.
  2. [28]
    The costs order sought by the Body Corporate is in the nature of a Sanderson order. In Sharples v O'Shea Atkinson J held:

A Sanderson Order is appropriate when the joinder of two defendants was reasonable and the conduct of the unsuccessful defendant has been such as to make it fair to impose some liability on it for the costs of the successful defendant.[22]

  1. [29]
    In support of its application for costs, the Body Corporate relies largely upon Mr Bakir’s costs submissions. Neither the submissions by Mr Bakir nor the Body Corporate’s submissions specifically address the relevant principles applying to Sanderson orders. The QCAT Act permits the tribunal to make an order requiring a party to pay the costs of another party to a proceeding if the tribunal considers the interests of justice require such an order to be made. As we have observed, a Sanderson order may be made if it just and reasonable to do so. In our view, the QCAT Act permits the making of a Sanderson order if the interests of justice require such an order to be made. We address specifically the principles for making a Sanderson order, insofar as they are relevant to the Body Corporate’s application, later in these reasons.
  1. [30]
    We now turn to the factors identified in s 102(3) of the QCAT Act to which the tribunal may have regard. We will consider each of the relevant factor in turn and the submissions by the parties noting that the overarching consideration is whether the interests of justice require a costs order to be made.

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)[23]

  1. [31]
    Mr Bakir says he has been disadvantaged by the actions of the second respondents and their representative, Mr Royston.
  2. [32]
    Mr Bakir refers to the adjournment of the hearing of the appeal listed on 16 and 17 November 2015. He says that the hearing was adjourned upon the application of Mr Royston. Mr Bakir says that despite the adjournment and the directions subsequently made by the Appeal Tribunal, no other lot owners were joined as parties.
  3. [33]
    Mr Bakir refers to the Appeal Tribunal directions made 19 August 2015 which required that any application to amend the parties to the proceeding, together with supporting material, was required to be filed in the Tribunal and served on the other parties, by 26 August 2015. Mr Bakir says that if the second respondents had complied with that direction, the adjournment would not have been required. He says that on this basis, at the hearing in November 2015, he expressly reserved his position regarding the costs of the adjournment. In addition to the costs of the adjourned hearing being thrown away, Mr Bakir says that the costs of the directions hearing on 19 August 2015 were also wasted as a result of the second respondents’ non- compliance with the Appeal Tribunal directions.
  1. [34]
    We do not accept Mr Bakir’s submission that the adjournment of the hearing on 16 November 2015 was the result of the second respondents’ failure to comply with the directions made 19 August 2015. As we previously found:
  1. [27]
    Further, we make the observation that it could not reasonably be considered the responsibility of Ms Tran, ACN or Mr Royston to bring any application ‘to amend the parties to the proceeding’. The application for appeal was Mr Bakir’s application. He alone could seek to amend the application. While it is the case that other parties (or persons seeking to be joined) could have filed applications for joinder of other persons as parties pursuant to s 42 of the QCAT Act, directions were not made to that effect.
  1. [28]
    Section 42 specifically contemplates that the Tribunal may make orders joining a person as a party, amongst other reasons, if the person’s interests may be affected by the proceeding. There was nothing to prompt Ms Tran, ACN or Mr Royston to consider making such an application/s. Nor is it apparent that the other submitters are aware of the appeal, which may have prompted them personally to seek joinder.[24]
  1. [35]
    Nothing in the subsequent relevant events, or submissions from the parties, persuades us to depart from these earlier findings.
  1. [36]
    Mr Bakir says that the second respondents are directly at fault for the finding by the adjudicator that the effect of passing motion 18 would be that lot owners could not access the roof-top area and the existing BBQ and deck area on the rooftop. He says that Mr Royston misled the adjudicator and the Appeal Tribunal and refers to the second respondents’ submissions to the adjudicator.
  2. [37]
    In the substantive appeal we found:
  1. [52]
    The Adjudicator states that under motion 18, lot owners would be deprived of access to the existing BBQ and deck area on the rooftop. He appears to find this as a fact.
  1. [53]
    This fact assumes that lot owners, other than Mr Bakir, have access to the existing BBQ and deck area on the rooftop. The issue of denial of access is raised in the material before the Adjudicator in the written submissions of Ms Tran and ACN to the Adjudicator dated 25 September 2014. Putting aside that the assertion appears in a submission in the absence of any supporting evidence, the assertion in the written submissions does not support the finding made. The submission refers to an alleged failure of the Body Corporate to explain that granting exclusive use to the lift would adversely affect lot owners’ ability to access the roof, as well as to events during an inspection conducted as a consequence of the application. They include assertions as to Mr Bakir’s reluctance to allow access to areas which the writers baldly assert are ‘thought to be common property’ or ‘are common property.’ However, although there may be some inference to the contrary, the assertions/submissions do not go so far as to state that lot owners currently have access generally to the existing BBQ and deck area.[25]
  1. [38]
    We found that the adjudicator erred in finding that the lot owners would be deprived of access to the existing BBQ and deck area by the implementation of motion 18 on the basis that there was no evidence to support a finding that they were entitled to access it.[26] We did not find that the second respondents’ had submitted that lot owners had access to the rooftop. Although the submissions from Ms Tran and ACN in the adjudication proceedings were somewhat vague, they were not legally represented and a lack of clarity is not uncommon in submissions by parties representing themselves.
  2. [39]
    Ultimately it was the error by the adjudicator that resulted in the appeal.
  3. [40]
    We do not accept Mr Bakir’s submission that the second respondents misled the adjudicator or the Appeal Tribunal.
  4. [41]
    We are not satisfied that the second respondents have acted in a way that has unnecessarily disadvantaged Mr Bakir or the Body Corporate such that it is in the interests of justice for an order for costs to be made.

The nature and complexity of the dispute the subject of the proceeding[27]

  1. [42]
    Mr Bakir says that the dispute involved complex questions of law. The appeal was limited to questions of law. Mr Bakir raised six grounds of appeal. The appeal essentially turned on two questions: whether the adjudicator had applied an incorrect test in determining (as he did) that the second respondents’ opposition to the motions was objectively reasonable; whether the adjudicator had erred in making factual findings on the basis that the findings were not available on the evidence.
  1. [43]
    The adjudicator was required to determine whether the opposition of the second respondents to the motions was, in the circumstances, unreasonable. In respect of motion 17 the adjudicator found that he was unable to ascertain any reasonable basis for the second respondents’ opposition. In respect of motion 18 the adjudicator found that the second respondents’ opposition was reasonable. We found that the test applied by the adjudicator was not apparent from his reasons however it appeared that the adjudicator had applied different (and incorrect) tests in respect of each of the motions and that he thereby erred in law.
  2. [44]
    We further found that the adjudicator erred in law in making factual findings not available on the evidence: that there was no benefit to the Body Corporate in granting the exclusive use area on the rooftop in exchange for certain relinquishments and imposition of conditions; that the lot owners would be deprived of access to the existing BBQ and deck area by the implementation of motion 18; that there was inadequate consideration with respect to motion 18.
  3. [45]
    We accept that the appeal did involve some degree of complexity and required a careful examination of the evidence before the adjudicator and the legal principles applicable to determining the unreasonableness of opposition to motions required to be passed without dissent. Leave was given early in the appeal proceedings for the parties to be legally represented.[28]
  4. [46]
    For an appeal to be ‘complex’ it should involve difficult or novel legal concepts or technical evidence that requires complex reasoning to enable the Tribunal to make a decision.[29] The nature of a proceeding may warrant a costs order even if it were not complex, but complexity alone will seldom suffice.[30]
  5. [47]
    Mr Bakir refers to the fact that he and the Body Corporate were legally represented in the proceedings. There is a distinction between the mere fact of having representation and the fact of having reasonably obtained that representation because of the complexity of the case.[31] Notwithstanding this, legal representation is a relevant factor to be taken into account when considering the complexity of the proceedings. We will address legal representation as a relevant consideration later in these reasons.
  6. [48]
    As we have observed, the appeal was limited to questions of law and was an appeal in the strict sense. The grounds of appeal were limited and the outcome of the appeal principally turned on two questions. We note that after the hearing of the appeal and before the final decision, the High Court in Ainsworth v Albrecht[32] clarified the meaning of unreasonableness in the context of opposition to motions required to be passed without dissent. Whilst relevant to the final decision in the appeal, the parties were not required to file further submissions addressing the effect of the decision.
  1. [49]
    Taking all of these matters into consideration, we are not satisfied that the matter was of sufficient complexity that the interests of justice require an order for costs.

The relative strengths of the claims made by each of the parties to the proceeding[33]

  1. [50]
    The corollary of the success of a party in a proceeding is not that the unsuccessful party’s case was weak or without merit. Whilst it is persuasive that Mr Bakir was successful in the appeal, costs do not follow the event in tribunal proceedings. To find that an award of costs should follow success in a proceeding on the basis of the strength of the successful party’s case (or the weakness of the opposing party’s case) would be to introduce the principle of costs following the event contrary to the QCAT Act. Success in proceedings is a factor, but not the only factor, in determining whether it is in the interests of justice to award costs.
  2. [51]
    It could not be said of the second respondents’ case that it was without merit. The second respondents were among a number of lot owners who lodged submissions in the adjudication process opposing the application by the Body Corporate, although it should be noted that the second respondents were the only lot owners who voted on the motions at the AGM.[34] The lot owners’ concerns in the adjudication process related to the relinquishment by Mr Bakir of small exclusive use areas in exchange for exclusive use of a much larger common property area.[35] The concerns of the second respondents in relation to motions 17 and 18 could not be said to have been frivolous or vexatious.
  3. [52]
    The Body Corporate, in adopting a passive role in the appeal proceedings, left Ms Tran and ACN to effectively represent the concerns of those lot owners who did not support the motions (notwithstanding that the lot owners may not have voted against the motions) and who had made submissions accordingly to the adjudicator.
  4. [53]
    On balance we do not consider that the relative strengths of the parties’ claims are factors of such significance that they compel an order for costs.

The financial circumstances of the parties to the proceeding[36]

  1. [54]
    None of the parties make submissions regarding this factor and we do not take into consideration the financial circumstances of the parties.

Anything else the tribunal considers relevant[37]

  1. [55]
    All parties had leave to be legally represented. Mr Bakir and the Body Corporate chose to be legally represented. The second respondents represented themselves with the assistance of Ms Tran’s partner, Mr Royston.
  1. [56]
    The engagement of legal representatives for a complex case may, in the absence of countervailing considerations, be a basis for awarding costs.[38] However the fact of legal representation does not, of itself, compel the conclusion that an award of costs is in the interests of justice. Other factors must be taken into consideration including the nature and complexity of the proceedings, the relative strength of the applicant’s claim, whether legal representation was required to achieve a just result and the extent to which a party’s success in a proceeding is eroded by bearing their own costs.[39]
  2. [57]
    As we have observed, the appeal involved some degree of complexity although it was limited to questions of law only. We accept that legal representation assisted in presenting and ventilating the issues before the Appeal Tribunal. However, as we have observed, on the question of whether the opposition by the second respondents to the motions was unreasonable the timely intervention of the High Court in deciding Ainsworth clarified the approach to be taken in considering unreasonableness without the legal representatives being required to make further submissions.
  3. [58]
    In relation to the extent to which Mr Bakir’s success in the appeal may be eroded by his not being awarded costs, we note that the final outcome did not involve an order for the payment of a sum of money. The decision of the adjudicator was set aside and the matter returned for reconsideration. We are not persuaded that any financial burden to Mr Bakir in being required to bear his own costs is a factor that compels an order for costs in his favour.

The Body Corporate’s application for costs

  1. [59]
    While we accept that the principles to be applied when considering making a Sanderson order are relevant in the present circumstances they do not displace the paramount ‘interests of justice’ principle in respect of costs orders in the tribunal.
  2. [60]
    As we have observed, a Sanderson order may be made where:
    1. (a)
      one defendant has been unsuccessful in the proceeding;
    2. (b)
      one defendant has been successful in the proceeding;
    3. (c)
      it was reasonable for the plaintiff to have joined both defendants;
    4. (d)
      the conduct of the unsuccessful defendant must be such that it is appropriate to make an order for costs against that defendant.
  3. [61]
    Mr Bakir joined the Body Corporate and the second respondents as respondents in the appeal. As we have previously observed, the BCCM Act is silent on who is a party to an appeal brought in QCAT. We found:[40]
  1. [19]
    By analogy, in respect of applications heard in the Tribunal’s original jurisdiction, each of the persons playing an active role in making or responding to the application is a party to it. On an appeal, each of the other parties would then be a named respondent in the appeal proceedings. The QCAT Act does not specifically state that all parties to the original proceeding must be named as parties to the appeal. However, it would be a clear breach of natural justice for some of those parties to the original proceeding whose interests may be affected by the outcome of the appeal, for them to be excluded from the appeal proceedings. In this instance here, the original proceeding was before an adjudicator, but the appeal was brought, as provided for in the statutory scheme comprising of the BCCM Act and the QCAT Act, in the Appeal Tribunal of QCAT. That cannot change the fundamental characterisation, as parties, of persons actively involved in the original proceeding. Those persons or parties are entitled to natural justice and to be heard on the appeal.
  1. [20]
    Of course, in the same way that not all persons named as parties in other appeals play an active role in the proceedings, not all persons who made submissions in the adjudication will choose to participate in appeal proceedings. However, they should be aware of the appeal and the grounds for it in order to make an informed decision about whether to be involved or not. In many instances, the Body Corporate will effectively represent the interests of other lot owners and their views. However, in circumstances (such as those here) where the Body Corporate, through the committee, plays a neutral part or actively supports an application which may result in delivering substantial exclusive use rights to one lot owner (which may not be considered by other lot owners to be in their interests), then it is perhaps more likely than in some other circumstances, that individual potential aggrieved persons may wish to be heard on appeal.
  1. [21]
    The particular circumstances of this matter, in which it is clear that the Body Corporate, acting through the committee of the Body Corporate, does not represent the broader interests of the lot owners (or the other submitters), have brought into sharp focus the apparent lacuna in the statutory scheme provided by the BCCM Act as read with the QCAT Act in relation to appeals.
  1. [62]
    We accept that it was reasonable for Mr Bakir to have joined the named respondents in the appeal. All played an active role in the adjudication proceeding.
  2. [63]
    As we have found, the Body Corporate played a passive role in the appeal and generally supported Mr Bakir’s position which, in effect, left Ms Tran and ACN as representing the concerns of those lot owners who did not support the motions.
  3. [64]
    In respect of the s 102(3) considerations, we make the same findings in respect of the Body Corporate’s application for costs as those made in respect of Mr Bakir’s application for costs.
  4. [65]
    For the reasons we have set out we do not consider the interests of justice require an order that Ms Tran and ACN pay the Body Corporate’s costs of the appeal.
  5. [66]
    Finally, we deal with the applications by Mr Bakir and the Body Corporate that an order for costs be made against Mr Royston as the representative of Ms Tran and ACN. If the tribunal considers a representative of a party to a proceeding, rather than the party, is responsible for unnecessarily disadvantaging another party to a proceeding as mentioned in s 102(3)(a) of the QCAT Act, the tribunal may make an order requiring the representative to pay a stated amount to the other party as compensation for the unnecessary costs.[41] For the reasons set out, we do not consider that the second respondents, or Mr Royston, acted in a way that unnecessarily disadvantaged Mr Bakir or the Body Corporate. There is no basis for a compensation order to be made against Mr Royston.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act Bakir v Tran & Body Corporate for Chevron Renaissance [2015] QCATA 164.

[2]Bakir v Body Corporate for Chevron Renaissance & Tran [2016] QCATA 33.

[3]Bakir v Body Corporate for Chevron Renaissance CTS 30946 & Ors [2017] QCATA 12.

[4]Application for interim order filed 21 March 2017.

[5]Application for interim order filed 6 April 2017.

[6]Application for miscellaneous matters filed 4 April 2018.

[7]QCAT Act, s 100.

[8] Ibid, s 102(3).

[9] Exhibit 6 - Affidavit of Teo Tran sworn 4 April 2018.

[10] Exhibit 7 - Affidavit of Teo Tran sworn 15 June 2018; Exhibit 8 - Affidavit of Teo Tran sworn 15 June 2018.

[11]Exhibit 7.

[12] Exhibit 8, [5].

[13]BCCM Act, s 100(1).

[14]Ibid, s 100(2).

[15]Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Qld), s 42(1)(e).

[16]Exhibit 3 - Affidavit of Jessie Daly filed 14 May 2018, Exh JLD1, page 50-52.

[17] McEvoy & Anor v The Body Corporate for No 9 Port Douglas Road (2013) LT(A) R 326.

[18]Ibid.

[19]Bakir v Tran & Body Corporate for Chevron Renaissance [2015] QCATA 164 (17 November 2015) [6], [21].

[20]Law Book Co, Quick on Costs (at September 2018)

[21]Ibid, [4.3500].

[22][1999] QSC 190 (12 November 1999) [8].

[23]QCAT Act, s 102(3)(a).

[24]Bakir v Tran & Body Corporate for Chevron Renaissance [2015] QCATA 164 (17 November 2015) [27]-[28].

[25]Bakir v Body Corporate for Chevron Renaissance CTS 30946 & Ors [2017] QCATA 12 (31 January 2017) [52] - [53] (emphasis added).

[26]Ibid [55].

[27]QCAT Act, s 102(3)(b).

[28]Decision, 26 May 2015.

[29] Queensland All Codes Racing Industry Board v Abbott (No. 2) [2016] QCATA 49 (3 March 2016) [13].

[30]Queensland Racing Integrity Commission v Vale [2017] QCATA 110 (10 October 2017).

[31]Tamawood Ltd & Anor v Paans [2005] 2 Qd R 101.

[32] (2016) 261 CLR 167.

[33]QCAT Act, s 102(3)(c).

[34] Chevron Renaissance [2015] QBCCMCmr 15 (15 January 2015) [20].

[35]35 Ibid.

[36]QCAT Act, s 102(3)(e).

[37]Ibid, s 102(3)(f).

[38]Tamawood Ltd & Anor v Paans [2005] 2 Qd R 101.

[39] Turner v Macrossan & Amiet Pty Ltd (No 2) [2016] QCAT 255 (5 February 2016).

[40]Bakir v Tran & Body Corporate for Chevron Renaissance [2015] QCATA 164 (17 November 2015) [19] - [21].

[41] QCAT Act, s 103(1).

Close

Editorial Notes

  • Published Case Name:

    Bakir v Body Corporate for Chevron Renaissance & Ors (No 4)

  • Shortened Case Name:

    Bakir v Body Corporate for Chevron Renaissance (No 4)

  • MNC:

    [2019] QCATA 28

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown, Senior Member Howard

  • Date:

    07 Mar 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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