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McGuire v Nikola McWilliam t/as McGrath Legal No 2[2022] QCATA 107

McGuire v Nikola McWilliam t/as McGrath Legal No 2[2022] QCATA 107

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

McGuire v Nikola McWilliam t/as McGrath Legal No 2 [2022] QCATA 107

PARTIES:

SONYA McGUIRE

(appellant)

v

NIKOLA McWILLIAM t/as McGRATH LEGAL

(respondent)

APPLICATION NO/S:

APL138-21

MATTER TYPE:

Appeals

DELIVERED ON:

18 July 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

  1. The Respondent is ordered to pay to the Appellant costs in the amount of $352.00, with such amount to be paid within 14 days of the date of this order.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – where appeal successful – whether an order for costs should be made in favour of the applicant – whether applicant entitled to payment of filing fee

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 85

Queensland Civil and Administrative Tribunal Act 2009 (Qld), Dictionary

AK Group Qld Pty Ltd and Anor v Queensland Building and Construction Commission No 2 [2021] QCAT 126

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Introduction

  1. [1]
    By my primary decision in this proceeding (the Primary Decision),[1] I made the following orders:
  1. Leave to appeal is granted.
  2. The appeal is allowed.
  3. Order number 3 of the Tribunal’s orders made on 6 May 2021 is set aside.
  4. The claim against Sonya McGuire is dismissed.
  5. The parties shall file in the Tribunal and serve on the other party any submissions in relation to costs, no longer than five (5) pages, within 14 days of the date of these orders.
  1. [2]
    The Appellant (Ms McGuire) seeks two orders:
    1. (a)
      a refund of the amount of $3,419.49 paid to the Respondent (Ms McWilliam) following the making of the decision below (which decision has now been set aside);
    2. (b)
      payment of her filing fee for the Appeal Application of $352.00.
  2. [3]
    Ms McWilliam submits that there should be an order that each party pay their own costs of the appeal.

The refund issue

  1. [4]
    Ms McGuire has sought a refund of the amount paid to Ms McWilliam following the original decision. Ms McWilliam has refused to refund the money paid by Ms McGuire, notwithstanding the orders made on the Appeal Application.
  2. [5]
    As part of her submissions in relation to resisting an order for payment of the filing fee, Ms McWilliam makes the following submission:

Whilst member Lumb found in favour of Ms McGuire on the Contract Issue, Ms McGuire did not succeed in her ultimate aim which was to deny Ms McWilliam payment for the services rendered. In paragraphs 66 - 67 of the Appeal Decision, Member Lumb expressly declined to make the order sought by Ms McGuire that the monies paid be refunded by Ms McWilliam. Despite this, on 24 May 2022, Ms McGuire issued Ms McWilliam with a demand for a refund and an invoice for the amount of $3419.49 plus court filing fees of $352, payable within 7 days. A copy of the invoice and Ms McGuire’s covering email is annexed and marked NM-1. The invoice will not be paid.

(emphasis added)

  1. [6]
    The emphasised words inaccurately characterise the effect of the Primary Decision.  The orders made included orders setting aside the order of the Adjudicator pursuant to which Ms McGuire was ordered to pay the amount of $3,419.49 to Ms McWilliam and, further, that the claim against Ms McGuire be dismissed.  It is self-evident that the effect of the Decision is that Ms McWilliam had no right to recover any amount from Ms McGuire as claimed by Ms McWilliam in the MCD Application.  At paragraph 67 of the reasons for the Primary Reasons, I observed that Ms McGuire may have a right at common law to recover the moneys paid pursuant to the Decision, but I considered that the issue of recovery of such moneys was a matter arising discretely from the Decision itself.  In my view, it remains a matter for Ms McGuire to pursue recovery of the moneys paid to Ms McWilliam (in such manner as she may be advised) if Ms McWilliam persists in refusing to refund the amount she received (in circumstances where the original decision that has been set aside and her claim against Ms McGuire dismissed, and in the face of these reasons).
  2. [7]
    That leaves the issue of the filing fee.

Payment of filing fee

  1. [8]
    Rule 85 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (the Rules) provides:

If the tribunal makes an order against a respondent in a proceeding, other than a proceeding for a minor civil dispute, the tribunal may order the respondent to pay to the applicant the amount of any prescribed fee paid by the applicant on filing the application or referral for the proceeding.

  1. [9]
    I repeat the following matters in relation to rule 85 as set out in AK Group Qld Pty Ltd and Anor v Queensland Building and Construction Commission No 2:[2]

[53]  Rule 85 is separate from s 100 and s 102 of the QCAT Act and so does not come under the principles set out in those sections nor the case law which considers those sections.

[54]  Allowance of a claim for a filing fee is discretionary.

[55]  However, in Emmetlow it was said by the Appeal Tribunal:

The normal practice of the Tribunal where a request is made by a successful applicant, is to award the filing fee. Usually this is done without giving any reason in a case where it is obvious that the applicant has been successful, because it would clearly be unfair to deprive the applicant of the filing fee in such circumstances …

(citations omitted)

  1. [10]
    Having regard to the definition of “proceeding” in the Dictionary to the Queensland Civil and Administrative Tribunal Act 2009 (Qld), I consider that the proceeding commenced by the Appeal Application in this matter is a “proceeding” for the purposes of rule 85 of the Rules and, further, is a separate proceeding from the proceeding commenced by the MCD Application.
  2. [11]
    In my view, Ms McGuire is entitled to recover the amount of the filing fee.
  3. [12]
    Ms McGuire has plainly had substantive success on the appeal.  The decision against her was set aside and the claim against her dismissed.
  4. [13]
    In relation to Ms McWilliam’s written submissions at paragraph 5, while Ms McGuire did not succeed on the “Natural Justice Issue,” she was wholly successful in relation to the “Contract Issue”.  Further, it was unnecessary to deal with the “Quantum Issue” because of Ms McGuire’s success in relation to the Contract Issue.
  5. [14]
    That Ms McWilliam incurred costs of $324.47 in responding to the Appeal Application, including $231.77 for an audio recording of the hearing, does not persuade me to deny Ms McGuire her filing fee in circumstances where she has successfully appealed the decision at first instance.
  6. [15]
    To the extent that Ms McWilliam relies upon what she asserts is a wrongful deregistration of Australian College of Information Technology Ltd; the asserted intention of Ms McGuire to deny Ms McWilliam payment for the services rendered; and that a previous appeal had been decided in Ms McWilliam’s favour,[3] I consider that such matters are irrelevant to the exercise of the Tribunal’s discretion in relation to the costs of the appeal, specifically payment of the filing fee.
  7. [16]
    Similarly, the submission that the Appeal Tribunal omitted to address Ms McWilliam’s claim for costs comprising the filing fee in a previous appeal (APL 128-20) (if that is correct) does not, in my view, raise a matter material to whether Ms McGuire should be denied recovery of her filing fee in the present appeal.  It was open to Ms McWilliam to agitate the issue of her filing fee with the previous Appeal Tribunal (particularly given that Ms McWilliam is a practising lawyer).
  8. [17]
    Having regard to all the circumstances, I consider that, pursuant to rule 85 of the Rules, it is appropriate that Ms McGuire be paid the amount of the filing fee by Ms McWilliam.

Order made

  1. [18]
    For the above reasons, the Respondent is ordered to pay to the Appellant costs in the amount of $352.00, with such amount to be paid within 14 days of the date of this order.

Footnotes

[1]McGuire v Nikola McWilliam t/as McGrath Legal [2022] QCATA 064.

[2][2021] QCAT 126 at [53]-[55].

[3]Ms McWilliam’s written submissions, paragraph 7, 8 and 9.

Close

Editorial Notes

  • Published Case Name:

    McGuire v Nikola McWilliam t/as McGrath Legal No 2

  • Shortened Case Name:

    McGuire v Nikola McWilliam t/as McGrath Legal No 2

  • MNC:

    [2022] QCATA 107

  • Court:

    QCATA

  • Judge(s):

    Member Lumb

  • Date:

    18 Jul 2022

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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