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Seeiseo Pty Ltd v Body Corporate for Taralla Apartments CTS 15627 QCATA 70
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Seeiseo Pty Ltd v Body Corporate for Taralla Apartments CTS 15627  QCATA 70
SEEISEO PTY LTD ACN 155 411 297 as trustee for AQUA TRUST
BODY CORPORATE FOR TARALLA APARTMENT CTS 15627
ORIGINATING APPLICATION NO/S:
28 May 2019
On the papers
Senior Member Howard, Presiding
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where tribunal below made order for costs – where stay of costs order is sought pending final determination of application for leave to appeal or appeal – whether an arguable case – whether the applicant will suffer material detriment if stay refused – whether balance of convenience favours granting a stay
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43, s 47, s 47(1)(b), s 47(2)(a), s 47(2)(b), s 47(2)(c), s 48, s 100, s 102, s 102(1), s 102(3), s 108, s 145(2)
Berry v Green  QCA 213
Commissioner of Taxation (Cth) v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220
Derry v Best Deals Travel Pty Ltd  QCATA 354
Pivavarova v Michelsen  QCATA 1
Seeiseo Pty Ltd v Body Corporate for Taralla Apartments CTS 15627  QCAT 352
Seeiseo Pty Ltd v Body Corporate for Taralla Apartments CTS 15627 (No 2)  QCAT 10
Yates and Anor v Williams  QCATA 6
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
- This is an application to stay the operation of a decision of the Tribunal delivered on 22 January 2019 (‘the Decision’), until the determination of the application for leave to appeal or appeal. In the Decision, the Tribunal made an order for costs against the applicant in the amount of $3,539.58, in favour of the respondent, the Body Corporate for the Taralla Apartments Community Titles Scheme 15627 (‘the Scheme’). The applicant is one of the lot owners in the Scheme.
- The Decision is related to an earlier decision, in which the Tribunal dismissed, pursuant to s 47(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), an application concerning a dispute between the applicant (as caretaker) under a caretaking letting agreement between it and the respondent.
- The application for leave to appeal or appeal was filed on 4 February 2019 (‘the Appeal Application’). The application for a stay of the Decision was also filed on 4 February 2019. The stated reasons for the stay are simply, ‘Applicant is appealing the decision made on 22nd January 2019’.
Principles applicable to stay application
- A successful party is entitled to the fruits of its litigation, and orders issued at first instance should not be regarded as merely ‘provisional’ subject to an appeal.
- For the Appeal Tribunal to grant a stay of the original decision, it must be satisfied that:
- (a)there is an arguable case in support of the application for leave to appeal and appeal;
- (b)the applicant will suffer some material detriment as a result of the refusal to stay the primary decision; and
- (c)the balance of convenience favours the granting of the stay of the Decision.
Stay should be granted
- For the reasons that follow, the Appeal Tribunal considers that it is appropriate to stay the operation of the Decision until the application for leave to appeal and appeal is finally decided.
- The applicant’s grounds of appeal are attached to the Appeal Application and total five pages. The applicant also filed submissions in support of the stay application.
- The respondent’s submissions on the stay application are relatively brief, and are set out below:
The Applicant advances only one ground in support of the Appeal, namely the allegation that not all of the facts were presented; it then goes on to outline what it alleges those facts are (Alleged Further Evidence).
As to the merits of the Appeal, the Applicant has not made any application to adduce the Alleged Further Evidence and no explanation for the Applicant’s failure to adduce such evidence in the proceedings at first instance is provided. In any event, none of the Alleged Further Evidence is relevant to the determination of the proceedings at first instance or the disposition of the Appeal. The [respondent] submits that the Appeal Tribunal cannot and should not have regard to the Alleged Further Evidence.
The [respondent] also submits that the Applicant does not have an arguable case on the Appeal and the application for a stay of the Primary Decision should be dismissed on that basis alone.
Without prejudice to the above submission, the [respondent] also submits that in the event the stay of the Primary Decision is granted, it will suffer material detriment as a result of not being able to recover part of the costs it has expended in successfully defending the proceedings at first instance.
The Applicant has not identified any detriment to it, save for the payment of the Primary Decision, if the stay were not granted.
Balance of convenience
The [respondent] submits that the Applicant has failed to establish that any material detriment will be caused to it by the refusal of the stay, as distinct from the natural consequences of the operation of the Primary Decision, whereas the [respondent] is able to point to actual prejudice.
Does the applicant have an arguable case?
- Contrary to the respondent’s contentions, the Appeal Tribunal finds that the applicant’s grounds of appeal raise an arguable case in support of the Appeal Application.
- The applicant’s grounds include the following:
We note that reasons given by [the Member] mostly appear to justify each party bearing their own costs of proceedings; that is until used his “general discretion” ((11) of decisions [sic]) and implemented 47 (2) (a)(b) and (c) [sic] ignored the ‘usual rule’ under s 100. We believe factors in 100 and 102 (3) were relevant. i.e. Parties should normally bear their own costs …
- The Member’s approach to the question of costs was relevantly set out at –:
 Though initially it appears the orders available are in the alternative, looking to the purpose of the provision which is intended to facilitate an early conclusion to otherwise futile proceedings or proceedings without substance, it seems inconceivable that the legislature intended the consequent specific provision about awarding costs not to be linked with and used together with the power provided to end proceedings also given in the provision. I conclude where a proceeding is dismissed on the basis of s 47(2)(a) or (b), then 47(2)(c) applies to permit a cost order to be made without the stricture of the usual rule under s 100, that the parties should bear their own costs, applying.
 Accordingly I conclude the usual rule in s 100 that each party to a proceeding should bear their own costs for the proceeding does not apply in circumstances where proceedings are ended early under s 47.
 That is not to say that the tribunal is at liberty to make any cost order it wishes without regard to the facts and circumstances of the matter:
A jurisdiction given in general terms allows the tribunal to make an order as to costs that is justified in the circumstances. It is a broad general discretion which must be exercised judicially, not upon irrelevant or extraneous considerations but upon facts connected with or leading up to the litigation.
 The factors listed in s 102(3) will usually still be relevant to the exercise of the general discretion under s 47(2)(c).
- Section 47 of the QCAT Act provides, in part:
- (1)This section applies if the tribunal considers a proceeding or a part of a proceeding is—
- (a)frivolous, vexatious or misconceived; or
- (b)lacking in substance; or
- (c)otherwise an abuse of process.
- (2)The tribunal may—
- (a)if the party who brought the proceeding or part before the tribunal is the applicant for the proceeding, order the proceeding or part be dismissed or struck out; or
- (b)for a part of a proceeding brought before the tribunal by a party other than the applicant for the proceeding—
- (i)make its final decision in the proceeding in the applicant’s favour; or
- (ii)order that the party who brought the part before the tribunal be removed from the proceeding; or
- (c)make a costs order against the party who brought the proceeding or part before the tribunal to compensate another party for any reasonable costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding or part.
See section 108 for the tribunal’s power to order that the costs be paid before it continues with the proceeding;
- Section 100 of the QCAT Act provides:
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.
- Section 102 of the QCAT Act provides, in part:
- (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.
- (3)In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
- (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);
- (b)the nature and complexity of the dispute the subject of the proceeding;
- (c)the relative strengths of the claims made by each of the parties to the proceeding;
- (d)for a proceeding for the review of a reviewable decision—
- (i)whether the applicant was afforded natural justice by the decision-maker for the decision; and
- (ii)whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
- (e)the financial circumstances of the parties to the proceeding;
- (f)anything else the tribunal considers relevant.
- The Member expressly found that s 100 does not apply in circumstances where proceedings are ended early under s 47; rather, the question of costs is governed by s 47(2). Further, in framing his reasons, the Member made no reference to the requirement in s 102(1) that 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.
- The Member did refer to the factors listed in s 102(3) which he said would ‘usually’ be relevant to the exercise of the general discretion under s 47(2)(c). The Member did not refer to particular circumstances in which the factors in s 102(3) may not be relevant to the exercise of such discretion.
- With respect to s 100 of the QCAT Act, it may be that the introductory words ‘other than as provided under this Act’ mean that s 47(2)(c) provides an exception to s 100 (such that usual order for costs provided for in s 100 did not apply, as the Member found). However, in the absence of argument in relation to this matter, we consider the issue to be open to question and warranting further consideration on the Appeal Application.
- Further, even if s 100 does not apply to s 47(2)(c), a further question arises as to factors to be taken into account in exercising that discretion, particularly having regard to the factors set out in s 102(3). In this context, the applicant raises the issue of whether it was given an adequate opportunity to address the circumstances relevant to the exercise of the discretion in relation to costs which it now seeks to raise. The Member did not, on our reading of the Reasons, refer to the applicant’s financial position which was, at least arguably, a material consideration on the question of costs. We consider that this ground fortifies the applicant’s position in relation to the existence of an arguable case.
- Without expressing any view as to the ultimate strength of the arguments identified above, the Tribunal considers that the applicant has an arguable case in support of the application for leave to appeal and appeal.
Will the applicant incur a material detriment if the stay is not granted?
- In the applicant’s grounds of appeal, it is contended:
The fact is, claiming legal costs against us (when every other dispute has been handled under the premise that each party bear their own costs) causes the Caretakers more disadvantage than the [respondent]. We are pensioners and do not have funds to pay [the respondent’s] legal fees.
- In its response to the Body Corporate’s submissions, the applicant stated, among other things, that it did not have the opportunity to present information on ‘material detriment’ specific to it and that it was a small business with a small income and that its income did not support continuing legal fees or continued applications by the respondent to challenge the alleged breaches in various bodies. It also states that if the decision to award costs against it is not vacated and/or a stay granted, it will suffer material detriment and the small business will become ‘unviable’.
- If the stay is not granted, the respondent will be at liberty to enforce the order for payment of costs in circumstances where the applicant has stated that it does not have access to extra funds and its (small) business will become unviable. On this basis, the Appeal Tribunal considers that the applicant would suffer material detriment if the stay were not granted.
Does the balance of convenience favour granting the stay?
- If the stay is granted, the respondent will be prevented from seeking to recover the sum of $3,539.58 until the determination of the Appeal Application. That amount would, it is assumed, be applied in reduction of liabilities of the 9 lot owners in the Scheme (including the applicant). The Appeal Tribunal accepts that the respondent will suffer some financial detriment in being kept out of its money for some time if the Appeal Application were ultimately to fail.
- However, if the stay is not granted, the financial consequences identified above will be faced by the applicant.
- Given the relatively modest amount involved, the number of lot owners in the Scheme, that one of the lot owners is the applicant, and (most importantly) the financial consequences to the applicant if the stay is not granted, the Appeal Tribunal considers that the balance of convenience favours the grant of a stay.
- For the reasons set out above, the Appeal Tribunal considers that is appropriate to grant the stay sought by the applicant.
- The Appeal Tribunal orders that:
- (a)Pursuant to s 145(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the operation of the Tribunal’s decision in OCL035-18 is stayed until the application for leave to appeal and appeal is finally decided.
- (b)The question of costs of this application is reserved to the hearing of the application for leave to appeal and appeal.
Seeiseo Pty Ltd v Body Corporate for Taralla Apartments CTS 15627 (No. 2)  QCAT 10.
Seeiseo Pty Ltd v Body Corporate for Taralla Apartments CTS 15627  QCAT 352.
Appeal Application, filed 4 February 2019.
See, eg, Pivavarova v Michelsen  QCATA 1,  (Daubney J and Member King-Scott).
Applicant’s Appeal Grounds, filed 4 February 2019, Part 1 .
Seeiseo Pty Ltd v Body Corporate for Taralla Apartments CTS 15627 (No. 2)  QCAT 10 .
Seeiseo Pty Ltd v Body Corporate for Taralla Apartments CTS 15627 (No. 2)  QCAT 10, 3 –.
Ibid, 3 .
Applicant’s Appeal Grounds, filed 4 February 2019, Part 2(e).
Ibid, Part 1 . See also Applicant’s Response to Respondents Submissions to Application to Stay a Decision, filed 8 April 2019,  (where the Applicants contend that they do not have access to extra funds) (‘Applicant’s Response’).
Applicant's Response,  (b).
- Published Case Name:
Seeiseo Pty Ltd v Body Corporate for Taralla Apartments CTS 15627
- Shortened Case Name:
Seeiseo Pty Ltd v Body Corporate for Taralla Apartments CTS 15627
 QCATA 70
Senior Member Howard, Presiding Member Lumb
28 May 2019