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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Woodhouse v The Body Corporate for Thirty Four Riverwalk & Ors No 2  QCATA 62
THE BODY CORPORATE FOR THIRTY FOUR RIVERWALK CTS 34520
24 April 2020
On the papers
Member Richard Oliver
Application for costs is dismissed
PROCEDURE – CIVIL PROCEEDINGS – COSTS – INDEMNITY COSTS – PARTICULAR CASES – where appeal from Adjudicator’s decision only on a question of law – where the first respondent 22 Lot scheme – where Body Corporate incurred substantial costs in responding to the appeal – where the appeal had some merit – whether basis to depart from the usual requirement that each party bear their own costs – whether the Applicant caused a disadvantage and the appeal lacked merit – exercise of discretion – whether the individual respondents had any interest in the appeal different to the Body Corporate – whether the individual respondents entitled to costs under s 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102
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
- On 14 April 2020 the Tribunal published its reasons in respect of the Applicant’s appeal against the adjudication of 20 November 2018. The application for leave to appeal or appeal was dismissed because the Applicant was not able to establish that the adjudication was infected by an error of law.
- Prior to that determination, the Body Corporate and Mr O'Rourke and Mr Brennan had filed applications for an order that their costs of this appeal proceeding be paid by the Applicant. For the purposes of pursuing the costs both Mr O'Rourke and Mr Brennan were joined as respondents to the proceeding. Although it would seem that the application for costs was somewhat premature without the outcome of the appeal being known, it has arisen because of the extensive history between the Applicant and the Body Corporate and its members concerning the issue of the hedge which was removed pursuant to Motion 3.
- The first point to be made about costs in the Tribunal is that, unlike Rule 681 of the Uniform Civil Procedure Rules 1999 (Qld) where costs follow the event, the general rule in the Tribunal is that each party must bear their own costs for the proceeding. There are exceptions to the general rule if the interests of justice require the Tribunal to make a costs order in favour of one of the parties. When considering whether to make a costs order, the Tribunal is assisted by s 102(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’ or ‘the Act’) which sets out those matters which the Tribunal might take into account when considering a costs order. They are, in summary and relevantly here:
- (a)whether one party unnecessarily disadvantages another party;
- (b)the complexity of the dispute;
- (c)the strength and weaknesses of a party’s claim;
- (e)the financial circumstances of the party; and
- (f)any other matter that the Tribunal considers relevant to the application.
- The mere fact that a party failed to succeed in the application does not of itself warrant an award of costs; there must be some additional reasons to impose such a sanction.
- If the Applicant’s appeal was frivolous, vexatious or lacked substance, then in the case of the Body Corporate it could have proceeded with an application under s 47 of the Act. In addition, if a party’s conduct was such that it fell within s 48 of the Act again, the Body Corporate could have taken action to have the appeal dismissed. That did not occur and the appeal itself, although unsuccessful, did have some merit in considering whether the Adjudicator gave sufficient consideration to whether or not the Body Corporate acted reasonably under s 94 of the Body Corporate and Community Management Act 1997 (Qld) in passing the motion to remove a hedge bordering on the Applicant’s lot. The removal of the hedge had a significant impact on the Applicant’s privacy and the amenity of her living space. This motion came about because the Applicant refused to allow the maintenance people access through her lot to trim the hedge. There was the possibility of a compromise by putting a gate into a fence surrounding the common property but no agreement could be reached about this.
- There is a considerable amount of material filed in the appeal relating to the deteriorating relationship between the Applicant and the Body Corporate and its members. This material is included by the Applicant, it is presumed, to establish that there was a bias towards the Applicant and therefore this goes to the question of the reasonableness of decisions that impact upon her. However, a lot of the material is also irrelevant to the appeal on a question of law, but it must be recognised that the Applicant is not a lawyer and sometimes it is difficult for a layperson to determine just what an error of law is, particularly in the context of ongoing disputation. In particular, the Applicant felt, with some justification, very strongly about the treatment she received in loss of her privacy and amenity.
- Turning then firstly to the Body Corporate’s application for costs which was filed on 4 July 2019. The orders sought are that the Applicant pay the respondent’s costs of and incidental to the appeal proceeding. The reasons identified in that application are in summary that:
- (a)there are deficiencies in the Applicant’s material which materially prejudiced the Body Corporate which did not identify any error of law;
- (b)the Applicant’s material did not identify any sustainable submission or supporting case law to support an error of law; and
- (c)attempts to re-ventilate matters which were before the Adjudicator.
- One can regularly find these types of complaints in any application, appeal or proceeding in QCAT when parties are self-represented. This is particularly so when there is a history of animosity and relationship breakdowns between the parties, as often occurs in community title matters. In this case the material filed by both parties in the appeal demonstrates there is longstanding personal disputation between Mr O'Rourke and the Applicant about the management of this Scheme. It is not for me to disentangle this dispute to make any determination about the rights or wrongs of the individual conduct of the parties. The Tribunal’s role in the substantive matter was to decide the appeal. Now it is to consider those matters under s 102(3) of the Act to decide if there is any basis for a costs order.
- Because the Applicant filed material going well beyond the discrete question for determination in the appeal does not necessarily mean that she disadvantaged the Body Corporate or the individual respondents. Insofar as the allegations made did not address the issues in the appeal, there was no need for them to respond to the allegations made that were not relevan to it. To a large extent the submissions in response by the lawyers for the Body Corporate filed on 21 May 2019 achieved this in a concise way.
- It is true to say that there was a considerable amount of material filed by both parties to the appeal consisting of statements, annexures to statements and additional material, which would have consumed considerable time to peruse and sift the relevant from the irrelevant. It may well have seemed to the respondents that this caused them a ‘disadvantage’ because they felt they had to respond to every allegation made particularly insofar as it was personal. But ultimately this was not particularly relevant to the outcome of the appeal. Litigation of any kind is disadvantageous to the parties involved, however the conduct of the Applicant here does not warrant an adverse costs order.
- Although at first blush, at least from the Body Corporate’s position, this matter may not have seemed complex. It is submitted that any complexity arose by the way the Applicant conducted the appeal and to some extent did not comply with directions. But, for litigants in person, it can be a daunting task to enter into the litigious arena and the Applicant’s appeal against the Adjudicator’s decision is as of right. The history of the relationship between the Applicant and the Body Corporate and its members did have some relevance in determining whether in passing Motion 3 the Body Corporate acted reasonably. In my view the complexity of the matter is not a basis to determine that justice requires the imposition of a costs order.
- As to the strength and weakness of the party’s case, this has adequately been dealt with in these reasons. As it transpired the Applicant did not have a strong case but an arguable case. There is nothing remarkable about this, as in every litigated matter at first instance or on appeal the relative strength or weakness of a party’s case is generally not fully appreciated until there is a final decision. For the absolute hopeless case there are remedies under the Act.
- This litigation, like most litigation, has a financial impact. The Body Corporate’s cost is shared between all of the lot owners. The Applicant must also bear some of those costs and her own. The Body Corporate and the individual respondents have included the invoices from their lawyers. This of itself does not mean they should be reimbursed by the Applicant. This ground does not warrant a cost order.
- As for the individual respondents, it seems they were only joined so they could agitate for an adverse costs order against the Applicant. They as individual lot owners did not receive any greater benefit from the appeal than the Body Corporate. They were not ‘parties’ to the appeal between the Applicant and the Body Corporate. Their interests in the appeal and the Body Corporate’s coincided. Material filed by them related to the personal disputation between them and the Applicant which was irrelevant to the matter the Tribunal had to decide in the appeal. There is simply no basis upon which a costs order against the Applicant in their favour could be justified under the QCAT Act.
- Despite the guidelines set out s 102 of the QCAT Act as to the matters to be taken into account, the decision to make an adverse costs order is still an exercise of discretion. The submissions filed by the respondents have not persuaded me that the Tribunal should exercise the discretion in their favour, particularly the individual respondents.
- The application for costs by each of the respondents is dismissed.
 QCAT Act, s 100.
- Published Case Name:
Audrey Woodhouse v The Body Corporate for Thirty Four Riverwalk, Raymond O'Rourke and Richard Brennan (No 2)
- Shortened Case Name:
Woodhouse v The Body Corporate for Thirty Four Riverwalk (No 2)
 QCATA 62
24 Apr 2020