Golding v Lusping Pty Ltd No 3
[2021] QCATA 4
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Golding v Lusping Pty Ltd No 3[2021] QCATA 4
- Add to List
Golding v Lusping Pty Ltd No 3[2021] QCATA 4
Golding v Lusping Pty Ltd No 3[2021] QCATA 4
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Golding v Lusping Pty Ltd No 3 [2021] QCATA 4 |
PARTIES: | PAUL HENRY GOLDING (applicant) |
| v |
| LUSPING PTY LTD (respondent) |
APPLICATION NO: | APL340-19 |
ORIGINATING APPLICATION NO: | OCL075-18 |
MATTER TYPE: | Appeal |
DELIVERED ON: | 12 January 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Howard |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – where appellant partly successful on appeal – where partial relief granted to appellant – whether an order for costs should be made in favour of appellant for his filing fees – whether an order for costs should be made in favour of the legally represented respondent – whether in the interests of justice to make a costs order District Court of Queensland Act 1967 (Qld), s 118(3) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 and s 107. Challen v Golder Associates Pty Ltd [2012] QCA 307 Challen v Golder Associates Pty Ltd [2012] QCA 339 Chandra v Queensland Building and Construction Commission [2016] QCATA 53 Colagrande & Ors v D A Radic Pty Ltd trading as David Radic Prestige Homes [2020] QCATA 86 Nichols v Earth Spirit Homes Pty Ltd [2014] QCATA 260 |
REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Butler McDermott Lawyers |
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
Introduction
- [1]In this matter:
- (a)by a decision dated 10 September 2020 (‘the primary appeal decision’),[1] the Appeal Tribunal granted leave to appeal to the applicant (‘Mr Golding’), directed the filing of written submissions, and reserved the question of costs; and
- (b)by a decision dated 30 October 2020,[2] the Appeal Tribunal allowed the appeal of Mr Golding, made a declaration as to the proper construction of the Residence Contract between the parties, made an order as to the basis upon which future charges payable by Mr Golding under the Residence Contract would be calculated, ordered that the respondent (‘the Operator’) pay to Mr Golding the sum of $227.40 within 14 days of the date of delivery of the reasons, and directed that the parties file written submissions in relation to the question of costs.
- (a)
- [2]Mr Golding’s success on the appeal can be described as a partial success. He secured orders in his favour but not the full relief sought which primarily involved an order that the Residence Contract be set aside.
- [3]Both parties seek a costs order against the other.
- [4]Mr Golding, who was self-represented, seeks the filing fee for both the Original Application and the Application for Leave to Appeal and Appeal (‘the appeal proceeding’).
- [5]Although it is not entirely clear, it appears that the Operator seeks the whole of its costs of the appeal proceeding on an indemnity basis.[3]
The relevant provisions and authority
- [6]The question of costs in this matter is governed by the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) and not by an enabling Act.
- [7]It is important to note this distinction given that Mr Golding relied on a case involving costs in matters under a particular enabling Act namely, the Queensland Building and Construction Commission Act 1991 (Qld),[4] and the Operator relied on a case involving leave to appeal to the Queensland Court of Appeal brought under s 118(3) of the District Court of Queensland Act 1967 (Qld).[5] In each case, the provisions of s 100 and s 102 of the QCAT Act had no application.
- [8]Mr Golding otherwise correctly identifies those provisions as applying to the present case.[6]
- [9]Section 100 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.
- [10]Section 102 provides:
- (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.
- (2)However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.
- (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 appropriate order for costs
- [11]The Appeal Tribunal is concerned with the appropriate order for costs of the appeal proceeding.
- [12]For the reasons that follow, we consider that it is not in the interests of justice to award costs in favour of either party and that s 100 of the QCAT Act should apply having regard to all the circumstances.
Mr Golding’s position
- [13]Many of Mr Golding’s contentions appear to concern alleged conduct of the Operator in the course of the proceeding below rather than in relation to the appeal proceeding,[7] or concern matters the subject of the dispute itself.[8] In our view, these are irrelevant to the question of costs of the appeal proceeding.
- [14]With respect to paragraph B2.5 of Mr Golding’s written submissions, Mr Golding does not provide details of the Operator’s failure to respond to the respective directions nor how any such conduct is said to either justify an order for costs in his favour or the refusal of costs in favour of the Operator.
- [15]However, we accept the submission that those paragraphs of the Operator’s submissions of 8 October 2020 which dealt with the costs were not made pursuant to any direction of the Appeal Tribunal. Nevertheless, the Appeal Tribunal has not taken those submissions into account. Had we considered that the Operator was entitled to any costs of the appeal proceeding, we would have made a specific order that the costs incurred in making such submissions should not be allowed.
- [16]With respect to paragraph B3.3 of Mr Golding’s written submissions, we reject Mr Golding’s characterisation of the Operator’s position as the making of a ‘false statement of denial’. On appeal, the Operator maintained the position it had taken below. That the Operator failed to the extent it did does not justify the characterisation contended for by Mr Golding.
- [17]The findings made by the Appeal Tribunal in relation to clause 3 of the Residence Contract reflect Mr Golding’s partial success on appeal. In this respect, we accept Mr Golding’s submission that his position was consistently that the Retirement Villages Act 1999 did not override s 3.1.3 of the Residence Contract.[9]
- [18]We also accept that Mr Golding is retired and that his sole income is the pension.[10]
- [19]Mr Golding also sought to rely on written submissions in reply which were objected to by the Operator. We place no reliance on those submissions, not merely because they were made without a direction, but also because they would not assist Mr Golding’s case; in part, they seek to agitate matters the subject of the appeal decision itself; in part, they raise Mr Golding’s financial position which we have accepted; and in part, they raise a bald assertion as to the alleged wealth of one of the directors of the Operator.
The Operator’s position
- [20]The Operator founds its claim for costs on Mr Golding’s failure to succeed on the third, fourth, fifth and sixth issues, having appealed in respect of each issue despite what the Operator contends was the apparent weakness of Mr Golding’s claims with respect to the issues on which he failed (which it submits were not complex) and that the Operator had to consider, review and respond to a substantial amount of additional material as a result.[11]
Mr Golding’s partial success
- [21]In relation to the seven issues the subject of the primary appeal decision, Mr Golding succeeded in relation to the second issue. We also note that, had we not concluded that the Operator was contractually restrained from increasing the charges for general services in excess of that stipulated by clause 3.1.3, we concluded that it would have followed that the information contained in clause 3, and in particular clause 3.1.3, was false or misleading.[12] Additionally, Mr Golding correctly identified error on the part of the Member in applying the wrong version of s 86 of the Trade Practices Act 1974 (Cth) (which, surprisingly, was contested by the Operator).[13] Mr Golding also established an error in relation to the seventh issue but this was not material to the Member’s ultimate decision.[14]
- [22]Mr Golding otherwise failed in relation to the issues raised on appeal (including the ‘forgery’ issue). The fact that Mr Golding failed on a number of issues and did not secure the whole relief sought weighs against a conclusion that the interests of justice require that Mr Golding be awarded costs in his favour.
Conduct of the parties in the appeal proceeding
- [23]While we acknowledge that Mr Golding was self-represented, we consider that there was an element of prolixity and some repetition in his extensive written submissions. Despite this, we do not consider that it amounted to unnecessarily disadvantaging the Operator as contemplated by s 102(3) of the QCAT Act. We also reject Mr Golding's contention that the Operator unnecessarily disadvantaged him in relation to the manner in which the Operator conducted itself in the appeal proceeding.[15]
Other matters
- [24]In relation to the nature and complexity of the appeal, while there was a deal of factual material to consider and the construction point raised by the Residence Contract was somewhat involved, the matter was not otherwise particularly complex.
- [25]While Mr Golding failed on a number of issues, we consider that his partial success could be described as a significant success albeit falling short of the relief he was seeking. Having regard to the cases relied upon by the Operator, we consider that Mr Golding’s success was considerably more than ‘limited’.[16] Further, such success stands in contrast to Nichols v Earth Spirit Homes Pty Ltd,[17] in which the appellant succeeded on only one of 13 grounds and the one ground on which the appellant succeeded concerned only the question of costs below.
- [26]With respect to the financial circumstances of the parties, Mr Golding was self‑represented and the Operator was represented by solicitors. We consider it a material consideration that Mr Golding is retired and is reliant on the pension. In our view, an order for costs again Mr Golding, even if only a partial order for costs, would inflict serious financial hardship on him. This is not to say that, in some circumstances, a costs order may not be made against a party in Mr Golding's financial position. However, in the present case, given Mr Golding's partial, but significant, success and in the absence of any conduct that could be described as vexatious or in breach of the QCAT Act, we consider that an order for costs should not be made against Mr Golding.
- [27]For completeness, we observe that there was no arguable basis upon which the Operator would have been entitled to indemnity costs.
- [28]We observe that, in seeking its costs, the Operator has paid no apparent regard to the provisions of s 107 of the QCAT Act. That section provides:
- (1)If the tribunal makes a costs order under this Act or an enabling Act, the tribunal must fix the costs if possible.
- (2)If it is not possible to fix the costs having regard to the nature of the proceeding, the tribunal may make an order requiring that the costs be assessed under the rules.
- (3)The rules may provide that costs must be assessed by reference to a scale under the rules applying to a court.
- [29]The Operator did not attempt to quantify its costs and provide a reasonable assessment of its costs on the respective standard and indemnity bases of assessment. Nor did the Operator submit that it was not possible for the Appeal Tribunal to fix costs.
Conclusions and orders
- [30]For the above reasons, we find that:
- (a)neither party has demonstrated that it is in the interests of justice under s 102 of the QCAT Act that there be an award of costs in favour of that party; and
- (b)pursuant to s 100, each of the parties must bear the party’s own costs of the application for leave to appeal and appeal.
- (a)
- [31]We make orders accordingly.
Footnotes
[1] Golding v Lusping Pty Ltd [2020] QCATA 134.
[2] Golding v Lusping Pty Ltd No 2 [2020] QCATA 150.
[3] The Operator’s written submissions dated 26 November 2020, paragraph 29. Cf paragraph 21 which states that the Operator is seeking costs with respect to ‘the Applicant’s unsuccessful appeals regarding the said issues’ with such issues being some but not all of the issues on appeal: see paragraph 4.
[4] Colagrande & Ors v D A Radic Pty Ltd trading as David Radic Prestige Homes [2020] QCATA 86, relied upon by Mr Golding: see paragraph 2 of his written submissions.
[5] Challen v Golder Associates Pty Ltd [2012] QCA 307 and [2012] QCA 339.
[6] Mr Golding’s written submissions, paragraph A1.1.
[7] Mr Golding’s written submissions, paragraphs B2.1, B2.2, B2.3, B2.4, B3.2, B4.1, B4.2 and B4.3.
[8] Mr Golding’s written submissions, paragraph B3.1.
[9] Mr Golding’s written submissions, paragraph B1.2.
[10] Mr Golding’s written submissions, paragraph A1.
[11] The Operator’s written submissions, especially paragraphs 4-14.
[12] Primary appeal decision reasons [58].
[13] Primary appeal decision reasons [25]-[27].
[14] Primary appeal decision reasons [103]-[108].
[15] See paragraphs [13]-[16] of these reasons.
[16] Cf, e.g., Chandra v Queensland Building and Construction Commission [2016] QCATA 53 at [25].
[17] [2014] QCATA 260.