Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd (no 2)
[2022] QCATA 154
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- Unreported Judgment
- Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd (no 2)[2022] QCATA 154
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Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd (no 2)[2022] QCATA 154
Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd (no 2)[2022] QCATA 154
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd (no 2) [2022] QCATA 154 |
PARTIES: | Golden Vision Gold Coast Pty Ltd (applicant/appellant) v Orchid Avenue Pty Ltd (respondent) |
APPLICATION NO/S: | APL193-20 |
ORIGINATING APPLICATION NO/S: | RSL169-18 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 23 September 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson Member Deane |
ORDERS: | Golden Vision Gold Coast Pty Ltd must pay Orchid Avenue Pty Ltd the sum of $29,340 for costs by 4.00pm on 28 October 2022. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – whether costs should be awarded – whether in the interests of justice to award costs – whether appellant caused unnecessary disadvantage – fixing costs Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43, s 48, s 101, s 102, s 105 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 86 Retail Shop Leases Act 1994 (Qld), s 21F Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 Crusty Devil Bakehouses Pty Ltd v W.A.W. Developments Pty Ltd [2013] QCAT 159 Fuge v Queensland Building and Construction Commission [2014] QCAT 383 Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd [2020] QCAT 215 Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd [2022] QCATA 132 Grasso & Anor v CMG Consulting Engineers Pty Ltd (No 2) [2011] QCATA 326 Joanne Baxter and Fifties Food Pty Ltd atf The Ninja Bear Trust t/as Subway Wynnum Central v Subway Realty Pty Ltd & Anor [2013] QCAT 316 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 The Licensee Pty Ltd v Queensland Building and Construction Commission [2021] QCATA 7 Valuers Registration Board v Murphy (No. 2) [2019] QCAT 332 Yeeha Tours and Holidays Pty Ltd t/as Mile High Aviation v Department of Environment & Science [2020] QCAT 131 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) |
REASONS FOR DECISION
- [1]On 21 March 2022, the application by Golden Vision Gold Coast Pty Ltd (‘Golden Vision’) for leave to appeal and to appeal was dismissed.[1] Orchid Avenue Pty Ltd (‘Orchid Avenue’) has now applied for costs and submissions have been filed by the parties.
- [2]Orchid Avenue seeks an order for costs of the appeal in the interests of justice on a standard as distinct from an indemnity basis, or, alternatively, that at least 30% of its legal costs ought to be paid by Golden Vision. Golden Vision contends that each party ought to bear its own costs.
- [3]The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides, ‘[o]ther 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.’[2] The starting point may be displaced, if the Tribunal considers it is in the interests of justice to do so.[3] It is not disputed that the relevant enabling Act, the Retail Shop Lease Act 1994 (Qld) (‘the RSL Act’) does not provide for the awarding of costs in the current circumstances.
- [4]
This presumption may, however, be displaced if the Tribunal considers it is in the interests of justice to order a party to pay all or part of the costs of another party: s 102(1). The phrase “in the interests of justice” is not defined in the Act but is to be construed according to its ordinary and plain meaning, which obviously confers a broad discretionary power on the decision-maker.
- [5]
The public policy intent of the provisions in the QCAT Act is plain. The tribunal was established as a no costs jurisdiction. That may be departed from where the interests of justice require it. The considerations identified in s 102(3) are not grounds for awarding costs. They are factors that may be taken into account in determining whether, in a particular case, the interests of justice require the tribunal to make a costs order.
- [6]Section 102(3) of the QCAT Act sets out the matters that the Tribunal may have regard to in deciding whether to award costs. Certain of those factors are discussed below. If a costs order is made, by s 107 of the QCAT Act the Tribunal must fix the costs if possible.
Whether a party acts in a way that unnecessarily disadvantages another party to the proceedings[6]
- [7]We are satisfied that Golden Vision acted in a way that, in a relevant sense, unnecessarily disadvantaged Orchid Avenue in the proceedings. This factor involves disadvantage to a person in their capacity as a party to the Tribunal proceeding, rather than disadvantage generally.[7] It relates to ‘unnecessary disadvantage’ as distinct from a disadvantage experienced in the usual course of a proceeding.[8]
- [8]Orchid Avenue points to correspondence between the solicitors.[9] It says that the way Golden Vision conducted the appeal disadvantaged it by unnecessarily driving up the amount of legal work to be undertaken and the costs incurred by Orchid Avenue. Section 102(3)(a) of the QCAT Act provides that the ways in which a party may be disadvantaged includes as mentioned in s 48(1)(a) to (g). While the conduct referred to by Orchid Avenue does not fall within those listed matters, that list is not exhaustive of the factors that may be taken into account.
- [9]Orchid Avenue refers to Golden Vision not agreeing to Orchid Avenue’s requests, made prior to the directions hearing on 10 February 2021, to have the hearing conducted on the papers; to Golden Vision not agreeing to its request to narrow the documents to be considered; and to Golden Vision seeking an adjournment of the final hearing. In relation to the request for a determination on the papers, Orchid Avenue points to the relatively modest amount in dispute and the potential to avoid the costs associated with an oral hearing.
- [10]The Tribunal at first instance ordered Golden Vision to pay Orchid Avenue $28,267.81.[10] The issue before the Tribunal and the Appeal Tribunal was whether the lease had been validly terminated. In refusing to agree to an on the papers hearing, Golden Vision contended that the written submissions had been prepared on the assumption of an oral hearing and that they were less comprehensive than they might otherwise have been.
- [11]Golden Vision unsuccessfully sought an adjournment of the final appeal hearing. That application caused some additional legal work that would not have been required if an on the papers hearing had been agreed. Orchid Avenue did not separately seek costs of the failed adjournment application at the time.
- [12]Orchid Avenue submits that while the appeal book prepared by Golden Vision was over 1,000 pages, Golden Vision referred to only three documents in its written submissions and refused to clarify which other documents in the appeal book it intended to rely upon. The failure to identify the relevant documents meant that Orchid Avenue’s counsel, who had not been retained for the Tribunal hearing at first instance, needed to review and analyse all documents, which necessarily involved additional expense. It is noted that very few documents in the appeal book prepared by Golden Vision were directly relevant to the issues in dispute.
- [13]We accept that the way Golden Vision chose to prosecute the appeal adversely impacted on the costs incurred by Orchid Avenue. This is a factor in favour of an award of costs.
The nature and complexity of the dispute[11]
- [14]
- [15]Leave for legal representation was granted to both parties at the directions hearing on 10 February 2021. In terms of s 43(1) of the QCAT Act, it can be inferred that in granting leave the Tribunal was satisfied that the interests of justice required such an order. The nature and complexity of the dispute, which involved quite technical arguments as to the proper construction of the RSL Act and whether Golden Vision had properly terminated the lease, warranted legal representation.
The relative strengths of the claims[13]
- [16]Golden Vision unsuccessfully applied for orders at first instance and was unsuccessful on appeal in relation to each of its three grounds. This goes to the strength of the claims and is a relevant factor under s 102(3)(f) of the QCAT Act: see Grasso v CMG Consulting Engineers Pty Ltd.[14]
The financial circumstances of the parties[15]
- [17]In the present case this is not a relevant factor. There is limited evidence as to each parties’ financial circumstances or their relativity. There is no evidence that a costs award against Golden Vision would result in financial hardship.
Anything else the Tribunal considers relevant[16]
- [18]Often, a relevant factor is whether a settlement offer was made, and that the decision of the Tribunal is not more favourable to the other party than the offer.[17] In the present case, there is no evidence of any offers to settle.
Conclusion
- [19]On balance, we find that it is in the interests of justice to make an award of costs.
Fixing costs
- [20]We fix Orchid Avenue’s costs payable by Golden Vision at $29,340.
- [21]Mr Jones gave evidence as to costs incurred by Orchid Avenue.[18] He sets out a table of invoices, with dates and invoice amounts. Copies of the invoices dated 31 July 2020 to 30 September 2021 are not in evidence before us nor is a breakdown of counsel and solicitor fees. Total claimed costs is $86,000. We accept that those costs were incurred.
- [22]Golden Vision contends and we accept that only costs reasonably incurred should be payable and that the claimed costs of $86,000 is not reasonable, given the amount involved in this dispute. Mr Jones does not expressly give evidence that the costs were reasonably incurred. Orchid Avenue submits alternatively that at least 30% of its legal costs ought to be paid, which is approximately $25,800.
- [23]The table of invoices shows that three invoices were issued after the grant of leave to be legally represented and the matter was set down for an oral hearing. Invoice dated 26 February 2021 was for $7,176.14; invoice dated 30 June 2021 was for $1,519.10; and invoice dated 30 September 2021 was for $33,220. Those invoices total $41,915.24. Although there is no detailed time recording evidence before us, it is likely that if the matter had proceeded as a hearing on the papers many of these costs could have been avoided.
- [24]In view of the relatively modest amount involved in the substantive claim, the further cost and delay that would be involved in ordering a full assessment is not appropriate.
- [25]The Tribunal has previously accepted that costs on a standard basis may be derived by applying a discount to solicitor-client costs in the order of 30%.[19] Applying such a discount to the fees invoiced after leave was granted, which on the evidence is $41,915.24, we calculate costs on a standard basis as $29,340. Costs are awarded on that basis.
Footnotes
[1] Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd [2022] QCATA 132.
[2] QCAT Act, s 100.
[3] Ibid, s 102.
[4] [2010] QCAT 412, [4].
[5] [2010] QCAT 364, [9].
[6] QCAT Act, s 102(3)(a).
[7] Valuers Registration Board v Murphy (No. 2) [2019] QCAT 332, [23].
[8] Crusty Devil Bakehouses Pty Ltd v W.A.W. Developments Pty Ltd [2013] QCAT 159, [14]; Joanne Baxter and Fifties Food Pty Ltd atf The Ninja Bear Trust t/as Subway Wynnum Central v Subway Realty Pty Ltd & Anor [2013] QCAT 316, [12].
[9] Affidavit filed 22 April 2022.
[10] Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd [2020] QCAT 215.
[11] QCAT Act, s 102(3)(b).
[12] Fuge v Queensland Building and Construction Commission [2014] QCAT 383, [21].
[13] QCAT Act, s 102(3)(c).
[14] [2011] QCATA 326.
[15] QCAT Act, s 102(3)(e).
[16] Ibid, s 102(3)(f).
[17] Ibid, s 105; Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 86.
[18] Affidavit filed 22 April 2022, [8].
[19] Yeeha Tours and Holidays Pty Ltd t/as Mile High Aviation v Department of Environment & Science [2020] QCAT 131; The Licensee Pty Ltd v Queensland Building and Construction Commission [2021] QCATA 7.