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  4. Murray v Body Corporate for the Mediterranean Towers CTS 35038 - [2022] QCATA 31

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Murray v Body Corporate for the Mediterranean Towers CTS 35038[2022] QCATA 31

Murray v Body Corporate for the Mediterranean Towers CTS 35038[2022] QCATA 31

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Murray v Body Corporate for the Mediterranean Towers CTS 35038 [2022] QCATA 31

PARTIES:

MICHAEL MURRAY

(applicant)

V

BODY CORPORATE FOR THE MEDITERRANEAN TOWERS CTS 35038

(respondent)

APPLICATION NO/S:

APL366-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

25 January 2022

DECISION OF:

Member Lember

ORDERS:

  1. 1.The appellant pay the respondent’s costs of the proceedings on an indemnity basis from 7 January 2021 fixed in the sum of $11,086.90.
  2. 2.The application for miscellaneous matters filed by Michael Murray on 27 October 2021 is dismissed.

`

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – DISCONTINUANCE OF OR WITHDRAWAL FROM PROCEEDING – whether costs should be awarded where proceeding withdrawn at an early stage – where appeal filed without grounds – whether proceedings futile or an abuse of process from the outset – whether indemnity costs are warranted

Body Corporate and Community Management Act 1997 (Qld), s 205, s 270, s 289, s 297, s 298

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 17, s 20, s 21, s 23(3), s 32(2), s 46, s 62, s 95, s 100, s 101, s 106, s 107

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 87

Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364

Barnett & Anor v Pirrone & Anor [2019] QCATA 166

Calderbank v Calderbank [1975] 3 All ER 333

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; (1988) 81 ALR 397

Micrac Pty Ltd v Collins & Ors [2012] QCAT 23

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412

The Mediterranean Towers [2020] QBCCMCmr 245

The Mediterranean Towers [2020] QBCCMCmr 552

Todrell Pty Ltd v Finch (No 1) [2007] QSC 386

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).

REASONS FOR DECISION

What is the application about?

  1. [1]
    The Mediterranean Towers is a 112-lot tower regulated by the Body Corporate and Community Management Act 1997 (Qld) (“BCCMA”) and its accommodation module regulation.[1]
  2. [2]
    Mr Murray, the owner of Lot 16, brought an application[2] against the respondent Body Corporate (“the Body Corporate”) to the Office of the Commissioner for Body Corporate and Community Management (“the Commission”) relating to various motions considered at the Annual General Meeting (“AGM”) of the Body Corporate on 30 April 2020, which Mr Murray alleged were passed irregularly.
  3. [3]
    Mr Murray sought, and was granted,[3] interim orders effectively staying the motions pending an outcome in the Commission.
  4. [4]
    By a decision dated 29 October 2020,[4] Adjudicator Miskinis of the Commission:
    1. (a)
      dismissed the application pursuant to section 270(1)(c) of the BCCMA on the basis that it was misconceived and without substance; and
    2. (b)
      ordered that Mr Murray pay the Body Corporate the amount of $2,000 as partial compensation for loss resulting from the application.
  5. [5]
    The reasons for that decision identified the extent to which the application lacked legal basis. Further, in making the costs order, the learned Adjudicator observed that:
  1. [62]
    Finally, owners have expressed extreme frustration with the number of dispute resolutions lodged by the applicant which they regard as frivolous and vexatious. Committee members act in a voluntary capacity and the body corporate has been obliged to obtain legal advice and assistance in responding to the applications. I am advised that the cost of responding to these applications over the last 5-6 years has exceeded $50,000.
  2. [63]
    On this occasion the body corporate has incurred legal costs in excess of $8,000 in defending what it describes as a frivolous, misconceived and unsubstantiated application. It requests that I make an order that the applicant pay the respondent’s costs in the highest amount of $2,000 pursuant to section 270(4) of the Act.
  1. [6]
    Mr Murray sought leave to appeal the Commission’s decision on 7 December 2020 (“the appeal”). As an appeal from an adjudication, section 289 of the BCCMA requires that the appeal to the Tribunal can only be on a question of law.
  2. [7]
    The grounds of the appeal were stated as being:
    1. (a)
      that the Adjudicator was given false and misleading information and documents by the Body Corporate in breach of sections 297 and 298 of the BCCMA;
    2. (b)
      that the applicant could not reply to the respondents’ submissions due to ill-health;
    3. (c)
      that the order and the publication of the reasons for it caused the applicant duress due to vilification and slurs and was enormously damaging to the applicant’s business and professional reputation; and
    4. (d)
      that the applicant had obtained subsequent legal advice that his application had merit. 
  3. [8]
    Notably, there was no question or error of law identified in the grounds for the appeal.
  4. [9]
    The appeal proceeded through the Tribunal as follows:
    1. (a)
      Initial directions made on 10 December 2020 required the doing and filing of certain things, including that both parties file submissions on a stay application that formed part of the appeal, that Mr Murray file his appeal book and that Mr Murray file submissions on the appeal by 1 March 2021 and that the Body Corporate file theirs by 1 April 2021.
    2. (b)
      Mr Murray did not serve the Body Corporate with the application until 7 January 2021, necessitating the Body Corporate to request an extension of time to comply with the directions pertaining to the stay submissions.
    3. (c)
      Mr Murray’s request to stay the original decision was dismissed on 12 February 2021 after parties made submissions on point.
    4. (d)
      Mr Murray was given extensions of time for the filling of the appeal book, and for the filing of his submissions on the appeal to 19 April 2021 and the Body Corporate an extension for the filing of theirs until 17 May 2021.
    5. (e)
      The Body Corporate was granted leave to be legally represented on 26 May 2021.
    6. (f)
      A directions hearing took place on 26 May 2021 in which further extensions were granted to Mr Murray to file his submissions on the error of law to 9 June 2021, to file his appeal book to 30 June 2021 and for the Body Corporate to file their submissions to 16 July 2021.   Mr Murray was informed that if directions were not complied with, the appeal would be dismissed and was warned that the Tribunal had the ability to make a costs order in the interests of justice required it.  The respondent also says that Mr Murray conceded in the directions hearing that Adjudicator Miskinis had not made an error of law, although Mr Murray disputes that this concession was made.
  5. [10]
    On 3 June 2021, the respondents wrote[5] to Mr Murray, referring to the concessions they say he made on the directions hearing on 26 May 2021, and noted that they had to file submissions by 9 June 2021 in response to Mr Murray’s objection to their request for leave to be legally represented, and that they would incur costs to do so.  They invited Mr Murry to withdraw his application by close of business, 4 June 2021 and said that:

If you do not withdraw the appeal by this deadline, the Body Corporate will presume that you intend to proceed with the appeal and will prepare submissions in response to your objections to its legal representation. If it is required to take that step, the Body Corporate may seek in order for its costs incurred with respect to the appeal either at the time you subsequently withdraw the appeal or if the appeal is dismissed for whatever reason.

  1. [11]
    On 4 June 2021, Mr Murray replied[6] to the letter of 3 June 2021, but did not withdraw the appeal or indicate that he would be withdrawing and in fact informed the Body Corporate that:

…it remains open for the Body Corporate to take whatever steps it chooses, at whatever cost it chooses on whatever it may presume to be my intended actions.

  1. [12]
    Mr Murray did offer to withdraw the appeal if the Body Corporate waived the costs order made against Mr Murray for $2,000 and if they agreed to distribute a letter to owners that was an “agreeable letter of amends” in an “sufficient conciliatory tone”.
  2. [13]
    On 9 June 2021 Mr Murray withdrew the appeal and says he considered the Tribunal proceedings had ended on that basis.
  3. [14]
    However, on 6 September 2021 the Body Corporate filed an application for miscellaneous matters in the appeal seeking costs (“the costs application”).   The costs application seeks an order that Mr Murray pay the Body Corporate’s costs on an indemnity basis by fixing them in the amount of $12,076.90.   Alternatively, the Body Corporate seek costs on a standard basis at $6,435.63 to 5 June 2021 and on an indemnity basis to 10 June 2021 at $2,325.95, or such costs as the Tribunal in its discretion considers appropriate and in the interests of justice.
  4. [15]
    On 27 October 2021, Mr Murray filed his own application for miscellaneous matters that, effectively, counterclaims $5,000 in costs in his favour in relation to the appeal (“the counter-claim”) and seeks to compel the production of documents.
  5. [16]
    Following receipt of submissions from both parties, my decision on the costs application and the counter-claim, and the reasons for it, follows.  

What is the legislative framework?

  1. [17]
    Proceedings may be finally determined, or interlocutory applications decided upon the written submissions of the parties without those parties or their representatives appearing at a hearing.[7]  These proceedings are known as decisions made “on the papers”.
  2. [18]
    The Tribunal must allow a party to a proceeding a reasonable opportunity to call or give evidence and to make submissions to the Tribunal[8] and I am satisfied that this process has taken place.
  3. [19]
    In making the decision, I have had regard to:
    1. (a)
      The published decisions of the Commission already cited;
    2. (b)
      The application filed 7 December 2020;
    3. (c)
      The costs application; 
    4. (d)
      The counter-claim;
    5. (e)
      Submissions of Mr Murray filed 1 November 2021 and 7 December 2021; and
    6. (f)
      Submissions of the Body Corporate filed 3 December 2021.
  4. [20]
    The starting point in the Tribunal is that each party to a proceeding must bear its own costs[9].  This differs from the Courts where the starting point is that costs follow the event.  However, the Tribunal can order costs if it considers it is in the interests of justice to do so.[10]  
  5. [21]
    The question is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).[11]
  6. [22]
    In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)[12] Wilson J (then President) said:

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.

  1. [23]
    In deciding whether to award costs in a matter the Tribunal may have regard to factors[13] such as:
    1. (a)
      whether a party to a proceeding acted in a way that unnecessarily disadvantages another party to the proceeding;
    2. (b)
      the nature and complexity of the dispute the subject of the proceeding;
    3. (c)
      the relative strengths of the claims made by each of the parties to the proceeding;
    4. (d)
      the financial circumstances of the parties; and
    5. (e)
      anything else the Tribunal considers relevant.
  2. [24]
    These factors are not grounds for awarding costs but factors to be considered in determining whether, in a particular case, the interests of justice require a costs order.[14]
  3. [25]
    Section 106 expressly permits the Tribunal to award costs “at any stage of a proceeding or after the proceeding has ended”.
  4. [26]
    If costs are ordered, the Section 107 of the QCAT Act provides that costs must be fixed if possible, or, if not, assessed under the rules.
  5. [27]
    Rule 87 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (“QCAT Rules”) provides:
  1. 87Assessing costs
  1. (1)This rule provides for how costs are to be assessed under section 107 of the Act if the tribunal makes a costs order that requires the costs be assessed under the rules.
  2. (2)The costs must be assessed—
  1. (a)
    by an assessor appointed by the tribunal; and
  2. (b)
    if the tribunal directs the costs be assessed by reference to the scale of costs applying to a court—by reference to the scale of costs directed by the tribunal.
  1. [28]
    The commencement of proceedings which cannot succeed because of a known legal impediment is a factor favouring costs being ordered on an indemnity basis.[15]
  2. [29]
    In Ralacom Pty Ltd[16] the Tribunal ordered indemnity costs, observing:
  1. [58]
    The watershed case for awarding costs on an indemnity basis is the judgment in Colgate-Palmolive Co v Cussons Pty Ltd.[17] Following a comprehensive review of the authorities, Sheppard J sets out a number of factors at 257 which may warrant the exercise of discretion, including:
  1. (i)
    the fact that proceedings were commenced or continued in wilful disregard of known facts;
  2. (ii)
    the making of allegations which ought never to have been made;
  3. (iii)
    the undue prolongation of a case by groundless contentions;
  4. (iv)
    evidence of particular misconduct that causes loss of time to the Court and to other parties; and
  5. (v)
    imprudent refusal of an offer to compromise. These propositions have been cited in recent cases.
  1. [30]
    In that case, although the applicants were not legally qualified, their conduct in pursuing their application when they ought to have understood that it was futile, was found to have “bordered on the inexplicable”, resulted in the respondent incurring unnecessary costs and their persistence with the proceedings, after an interlocutory decision was made that suggested they should not, was found to be “unreasonable and irresponsible” and justified an order on an indemnity basis.[18]
  2. [31]
    In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; (1988) 81 ALR 397, Woodward J said at 401 (my emphasis added):

I believe that it is appropriate to consider awarding `solicitor and client' or `indemnity' costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law.

  1. [32]
    In Barnett & Anor v Pirrone & Anor[19] the Appeal Tribunal ordered indemnity costs on a withdrawal, finding that the withdrawing party had not acted reasonably in commencing and maintaining the proceedings.   In that case, the withdrawal occurred at a late stage and after repeated warnings at directions hearings that the Tribunal lacked jurisdiction in respect of part of the claim.  Costs were ordered from when the applicant should have known that the application was misconceived, which some eighteen months after proceedings commenced. 
  2. [33]
    In Micrac Pty Ltd v Collins & Ors[20] the Tribunal was not minded to award costs in a retail shop lease dispute where the application was withdrawn at an early stage but after the respondent had taken steps in the proceedings. The early withdrawal was important to the Tribunal’s decision, but the Tribunal was also not satisfied that the applicant acted unreasonably in commencing proceedings.

Discussion – Costs Application

Has a party whether a party to a proceeding acted in a way that unnecessarily disadvantages another party to the proceeding?

  1. [34]
    In circumstances where:
    1. (a)
      Mr Murray filed his appeal without identifying an error of law which is an expressly necessary requisite to the Tribunal’s jurisdiction pursuant to section 289 of the BCCMA;
    2. (b)
      Even if not legally qualified, Mr Murray appeared to have been well-informed of the requirements of the BCCMA because he referenced sections 257 and 258 in his appeal and has pursued many disputes with the Body Corporate over many years pursuant to the BCCMA;
    3. (c)
      Mr Murray therefore knew, or, properly advised, ought reasonably to have known, that his application for leave to appeal was futile if it was not grounded upon an error of law;
    4. (d)
      Mr Murray also sought a stay, and then served the application for leave to appeal on the respondent reasonably late, necessitating the respondent requiring an extension of time to comply with directions to reply to the stay application;
    5. (e)
      The stay application was not successful, nor should it have been where there was no prima facie case that the appeal would have a prospect of success (again, nothing, no error of law appeared to ground the application for leave to appeal);
    6. (f)
      Mr Murray was cautioned that the appeal was not grounded upon an error of law in the directions hearing on 26 May 2021;
    7. (g)
      Mr Murry did not withdraw his application until 9 June 2021, despite a warning from the Body Corporate on 3 June 2021, which he acknowledged, that they would incur further costs in the proceedings if the application was withdrawn after 4 June 2021;
    8. (h)
      Mr Murray knew that the Body Corporate were legally represented throughout the original adjudication and the appeal proceedings, and that they were seeking formal leave to be legally represented; and
    9. (i)
      Mr Murray knew that his original adjudicated proceedings had cost the Body Corporate $8,000 to defend (of which the Adjudicator ordered the maximum of $2,000 be paid by Mr Murray) and he knew – because he said in his 30 April 2021 AGM motion that his own appeal proceedings in QCAT were “costly and protracted” – that the Body Corporate were incurring significant legal fees with respect to his applications,  

I am satisfied that Mr Murray commenced and then continued the appeal proceedings in a careless if not wilful disregard of its defects, and for the ulterior motive of defending his reputation by using the appeal to motivate the Body Corporate to negotiate the terms of the adjudicated decision, rather in the genuine belief that that his appeal had merit.  In citing the impact upon his reputation as largely grounding the appeal Mr Murray wilfully prioritised repairing his reputation over focusing on the merits of the application by identifying a valid appeal ground, failed to have regard to the expressed reasons for the Adjudicator’s decision, and proceeded despite knowing the significant costs exposure to his co-owners in the community title scheme, who, ultimately and including himself would, but for an indemnity costs order, bear the expense of Mr Murray’s futile decision.  

  1. [35]
    Further, Mr Murray’s delay in serving the application, and his ongoing failure to comply with the timelines set out in directions lead to the undue prolongation of the case, resulting in loss of time to the Tribunal and to the respondent, who, as the appellant well knew, was legally represented and was seeking leave to be legally represented in the proceedings.
  2. [36]
    By a letter dated 3 June 2021 Mr Murray was invited by the respondent to withdraw the proceedings, failing which they would incur further costs in having to meet a Tribunal direction.  He did not withdraw the application by that deadline, withdrawing some days later and after the respondent had incurred the foreshadowed further costs.
  3. [37]
    I am satisfied that Mr Murray acted in a way that disadvantaged the respondents and that this favours an award for costs against him.
  4. [38]
    Nothing in the conduct of the respondent favours a costs order in favour of Mr Murray as sought in the counterclaim.

The nature and complexity of the dispute the subject of the proceeding

  1. [39]
    Largely due to the nature and manner of the Mr Murray’s allegations against the Body Corporate, I am satisfied that the matter was sufficiently complex to warrant legal representation, and that this factor favours a costs order against Mr Murray.
  2. [40]
    Mr Murray was not legally represented and did not incur legal costs in the proceedings. This does not favour the costs order he seeks in the counterclaim.

The relative strengths of the claims made by each of the parties to the proceeding

  1. [41]
    As stated, in the absence of an error of law by the Adjudicator, there were no grounds upon which Mr Murray could base his appeal and it was, therefore, futile from the outset.  Although Mr Murray denies conceding in the directions hearing that his appeal was not grounded upon an error of law, he has, nonetheless, failed to identify one at any stage of the proceedings.
  2. [42]
    The Adjudicator’s decision itself indicated the futility of the original application, as did correspondence from the Body Corporate to Mr Murray throughout.   
  3. [43]
    Notably, on the question of publication of decisions, the Body Corporate noted, correctly, and as early as 30 April 2021, that the publication of decisions is entirely outside of the Body Corporate’s control.  To the extent the application was motivated by the desire to overturn publication, it was always doomed to fail.
  4. [44]
    This factor favours a costs order against Mr Murray. 

The financial circumstances of the parties

  1. [45]
    The Body Corporate submits that it is funded by the contributions of individual lot owners. They say that lot owners should not be put in a financially “worse off” position, or face any potential financial hardship, because of the appellant’s conduct. 
  2. [46]
    Mr Murray says that the Body Corporate could not incur legal costs without first passing a resolution at an extraordinary general meeting to raise a special levy for the costs.  The respondent denies it was required to raise a special levy as it had budgeted for legal expenditure and had funds available to incur such legal costs.   Moreover, they say there is no substance whatsoever to the Appellant’s assertion that the Body Corporate could not incur a liability for an expense that is not specifically provided for in a budget.
  3. [47]
    Regardless of whether the legal fees are budgeted or are to be met by special levy, either way, lot owners will ultimately pay for them. 
  4. [48]
    However, there is no material to support a conclusion that the body corporate (with funding by the lot owners) cannot meet its legal costs or that a failure to award costs will cause excessive hardship.  There is no evidence of Mr Murray’s financial circumstances either. 
  5. [49]
    This factor does not favour an award for costs (due to the lack of evidence either way on the specific issue of hardship).

Other relevant factors

Offers

  1. [50]
    One additionally relevant factor includes whether a settlement offer was made, and that the outcome was not more favourable than the terms of the offer.
  2. [51]
    Mr Murray says that offers made by him support a costs order in his favour, relying on the principles established in Calderbank v Calderbank[21] but agreeing that they were not “Calderbank offers”.[22]  He says that he made offers at all stages of the appeal proceedings to compromise and to avoid the costs of the appeal proceeding.
  3. [52]
    He says that the respondent was given a further opportunity in his AGM 2021 motion to avoid the appeal. 
  4. [53]
    I am not satisfied that any offers made by Mr Murray represent a compromise more favourable to Body Corporate than the outcome of the appeal because:  
    1. (a)
      Mr Murray’s offer of 4 June 2021 was to withdraw his appeal if the Body Corporate waived the costs order in their favour and issued a letter of amends. 
    2. (b)
      His AGM 2021 offer was to pay the $2,000 to be put towards a formal mediation.  
    3. (c)
      However, withdrawing the appeal necessarily would have meant that the costs order remained as part of the Commission’s decision (namely, that Mr Murray pay $2,000 to the Body Corporate for their legal costs). 
    4. (d)
      Once the adjudicated decision was made, and without offering an error of law upon which it was based, there was, frankly, nothing to mediate, and, therefore, Mr Murray’ subsequent offers really only sought to vary the decision to terms more favourable to Mr Murray. 
    5. (e)
      The Body Corporate having spent $8,000 on the adjudicated BCCM proceedings, and further funds on the appeal were not inclined, nor should they have been in my view, to accept any of these offers that were only motivated to improve Mr Murray’s position.

Early warnings

  1. [54]
    Another relevant factor, in my view, is the early warnings to Mr Murray of the likely outcome of his appeal, and the costly nature of it.
  2. [55]
    Prior to the 30 April 2021 AGM, Mr Murray put forward a motion that the Body Corporate accept the $2,000 costs order to be put towards a formal mediation “to resolve ongoing matters in dispute and thereby curtail costly and protracted QCAT proceedings on foot”. He says he first made this offer on 11 January 2021.   
  3. [56]
    Mr Murray was well and truly put on notice from the outset that the ongoing conduct of his application was incurring costs for the Body Corporate.   The BCCM Decision noted what they had spent on those proceedings alone ($8,000). 
  4. [57]
    Despite Mr Murray’s assertion that he believed the matter to be concluded by the filing of his notice of withdrawal, if in fact this belief was held, there was no reasonable basis for it and certainly no implication by or conduct of the respondent that might have led him to that belief.    By the letter dated 3 June 2021 Mr Murray was expressly on notice of the Body Corporate’s intention to seek costs upon a withdrawal.

Incorrect CTS Reference

  1. [58]
    Mr Murray takes issue with the costs application incorrectly referencing the Body Corporate for “CTS 30538” instead of “CTS 35038” and says this is a fatal flaw it he costs application. 
  2. [59]
    The parties exchanged emails on 12 October 2021 on point, tendered to the Tribunal as Exhibit D to the respondent’s submissions in response to the counterclaim.
  3. [60]
    There is no merit in Mr Murray’s argument that the misdescription of the CTS in the costs application is a flaw fatal to it, rather than a typographical error, because:
    1. (a)
      The error was clearly a typographical error in which two digits within the CTS were transposed;
    2. (b)
      The costs application was filed in relation to existing proceedings between the parties, by reference to the matter no (APL366-20) for those proceedings – it was evident which proceedings, and between which parties the costs application pertained to – therefore, neither the Tribunal nor either party was misled, confused or disadvantaged in consequence of the error; and 
    3. (c)
      In any event, the Tribunal’s powers include a slip rule in section 61 of the QCAT Act permitting the Tribunal to waive compliance with a procedural requirement under the QCAT Act or the Rules, bearing in mind the Tribunal’s mandate to exercise its functions in an informal way[23] and with as little technicality as the requirements of the QCAT Act permit,[24] and this would clearly extend to correcting an error such at the one made by the respondents in the costs application.

Service of Documents

  1. [61]
    The parties are in dispute as to the method and timing of the service of the appeal application, the costs application and the counterclaim.  In my view, these issues are not relevant to this decision.  Each party has been given the costs application and counterclaim and have been given a reasonable opportunity to make submissions in relation to them.  They have both made submissions.
  2. [62]
    On balance, I am satisfied for the reasons above that the interests of justice favour an award of costs against Mr Murray in all the circumstances.

Indemnity costs

  1. [63]
    The costs application seeks indemnity costs.
  2. [64]
    Filed with the cost application, the Affidavit of Jason Carlson sworn 31 August 2021 annexes:
    1. (a)
      The costs agreement between the Boyd Corporate and Bugden Allen Lawyers;
    2. (b)
      The costs agreement between the Body Corporate and Grace Lawyers;
    3. (c)
      Email correspondence between the Body Corporate and its solicitors; and
    4. (d)
      Tax invoices 3820 (dated 9 April 2021), 1355579 (dated 30 June 2021) and 134273 (dated 31 May 2021).
  3. [65]
    I am satisfied that each costs agreement is specific to the work relating to the appeal by Mr Murray.
  4. [66]
    Bugden Allen Lawyers estimated their costs between $15,000 and $35,000 to run the proceedings (plus disbursements, plus GST).
  5. [67]
    The Bugden Allen Lawyers invoices evidence that:
    1. (a)
      between 15 December 2020 and 27 February 2021, the Body Corporate incurred legal costs (including GST) of $5,236.00 pertaining to the appeal proceedings;
    2. (b)
      of these expenses, $990 (including GST) was incurred prior to the service of the appeal upon the Body Corporate;
    3. (c)
      some attendances were reduced/discounted (for example, on 15 December 2020 and 10 February 2021); and
    4. (d)
      some attendances were recorded at “nil” value (for example, drafting submissions on the stay in January 2021, and in relation to extensions of time on 21 January 2021 and 19 February 2021).
  6. [68]
    Grace Lawyers estimated their costs between $2,000-$2,500 (plus disbursements, plus GST).   Additional work quoted in emails included:
    1. (a)
      The letter to Mr Murray of 3 June 2021 $1,000 (plus disbursements and GST);
    2. (b)
      Drafting the submissions due 9 June 2021 $1,200 (plus disbursements and GST).
  7. [69]
    The Grace Lawyers invoices evidence that:
    1. (a)
      Between 1 and 10 June 2021 the Body Corporate incurred legal costs, GST and disbursements totalling $2,916.00 for work needed to write to Mr Murray regarding withdrawal of his appeal (before 7 June 2021), and then reviewing his submissions and drafting reply submissions when he did not withdraw.
    2. (b)
      Between 19 May 2021 and 27 May 2021, the Body Corporate incurred legal costs, GST and disbursements totalling $3,633.30 to draft their application for leave to be legally represented, to take instructions and to provide advice on directions and next steps in the appeal proceedings. 
  8. [70]
    Mr Murray says:
    1. (a)
      That the costs application should be dismissed in its entirety due to the respondent being incorrectly identified upon it as the Body Corporate for “CTS 30538” rather than the correct identifier “CTS 35038”.   Mr Murray says this is a fatal flaw in the application; and
    2. (b)
      That the Body Corporate have not legitimately incurred the costs it is claiming because Bugden Allen Lawyers’ invoice includes work from 15 December 2020, for liaising with the Body Corporate but Mr Murray is not specifically mentioned until 10 February 2021. However, the Body Corporate says that it became aware of the appeal in early December 2020 and, as such, it was liaising with Bugden Allen Lawyers in relation to the appeal at that time.
  9. [71]
    Prior to the service of the appeal, had it been withdrawn there would be no claim for costs whatsoever. I am not minded, therefore, to award costs until the appeal application was served.
  10. [72]
    I am satisfied that the circumstances warrant the Tribunal award indemnity costs from 7 January 2021 (namely, from the date the respondent was served with the appeal applicant and work commenced specifically to respond to the appeal proceedings) because:
    1. (a)
      The appeal proceedings were commenced in wilful disregard of known facts and for an ulterior motive, namely, the negotiation or variation of an adjudicated decision and the repair to reputational damage – in this regard even the appellant’s reply submissions filed 3 December 2021 persist in the argument that the respondent “rejected all efforts at conciliation and mediation” and since the Adjudicator’s decision had been “overpowering, dismissive of reason or conciliatory effort, [and] deliberately adversarial”. However, it was the appellant who brought the BCCM application, and who was unsuccessful in it, to the extent a costs order was made against him in the highest amount.  It was the appellant who brought appeal proceedings.  After the adjudicated decision was made, there was no dispute to be conciliated or mediated – the Body Corporate had the benefit of a final decision (albeit subject to appeal processes).  Further, the offers made by Mr Murray were all to improve on the outcome to him from the adjudicated decision. The Body Corporate were the respondents in all proceedings, and it is difficult to see how in those circumstances how they can be accused of being adversarial or overpowering. 
    2. (b)
      The appeal was continued in wilful disregard of the flaws in it - even by his letter of 4 June 2021, the appellant unduly prolonged the proceedings when, rather than communicating then his decision to withdraw, he invited the Body Corporate to “take whatever steps it chooses, at whatever cost it chooses on whatever it may presume to be my intended actions”.  The appellant’s conduct at that point was imprudent and put the respondent to additional and, ultimately unnecessary legal costs.
    1. (c)
      The conduct of the appellant has led to the making of several directions, has consumed the resources of the Tribunal, and caused loss of time and legal expenses to the respondent. The Tribunal’s resources serve the public as a whole, not just the parties to the proceedings.[25]
  11. [73]
    In granting the costs application on an indemnity basis I am conscious that the departure from the usual costs position in the Tribunal is significant, however, I note the Body Corporate are already out of pocket $6,000 on the BCCM application and I am not satisfied that justice would be achieved by allowing another out-of-pocket expense to owner in the bringing and continuation of futile and inappropriately motivated appeal proceedings.   
  12. [74]
    The deduction to the costs claimed in the sum of $12,076.90 is $990.00 being the costs (including GST) set out in the Bugden Allen invoice No. 3820 for attendances to 7 January 20201 (up to but excluding the time entry to” preparing the submissions for the application for a stay”).   I therefore fix indemnity costs at $11,086.90.

Discussion – Counter-claim

Costs

  1. [75]
    As mentioned, the starting point in the Tribunal is that each party bear its own costs unless the interests of justice require otherwise.
  2. [76]
    It is difficult, if not impossible, to imagine a circumstance in which an applicant/appellant party who has withdrawn an application could establish that the interests of justice require that the costs of their application be paid by the respondent.
  3. [77]
    If an applicant/appellant withdraws on their own violition there is no basis for any findings that the respondent has acted in a way that unnecessarily disadvantages another party to the proceeding.
  4. [78]
    The respondent also correctly points out that the counterclaim does not clearly explain:
    1. (a)
      why the respondent should be ordered to pay his costs in the amount of $5,000.00; or
    2. (b)
      how Mr Murray has calculated the amount of $5,000.00 as being his costs incurred during this matter.
  5. [79]
    I have already observed the section 102(3) factors with respect to Mr Murray’s counter claim[26] and concluded that a consideration of these factors does not favour an award of costs in Mr Murray’s favour. 

Production of documents

  1. [80]
    To the extent that Mr Murray seeks orders in his counterclaim that the respondent provide full and unredacted copies of documents, I decline to make that order.
  2. [81]
    The effect of filing a withdrawal is that the applicant cannot make a further application or referral, or request, require or otherwise seek a further referral, relating to the same facts or circumstances without leave of the Tribunal.[27]  Save for the issue of costs, the substantive proceeding is over.

Decision

  1. [82]
    For the reasons given, my decision is as follows:
    1. (a)
      The appellant pay the respondent’s costs of the proceedings on an indemnity basis from 7 January 2021 fixed in the sum of $11,086.90.
    2. (b)
      The application for miscellaneous matters filed by Michael Murray on 27 October 2021 is dismissed.

Footnotes

[1] Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Qld).

[2]  Application No. 0429-2020.

[3] The Mediterranean Towers [2020] QBCCMCmr 245.

[4] The Mediterranean Towers [2020] QBCCMCmr 552.

[5]  Letter marked Exhibit C to the Application for miscellaneous matters filed 6 September 2021.

[6]  Exhibit D to the Application for miscellaneous matters filed 6 September 2021.

[7]  Section 32(2) of the QCAT Act.

[8]  Section 95(1), ibid.

[9]  Section 100, ibid.

[10]  Section 102(1), ibid.

[11] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [29].

[12]  Ibid at [4].

[13]  Section 102(3), of the QCAT Act.

[14] Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 at [9].

[15] Todrell Pty Ltd v Finch (No 1) [2007] QSC 386 at [4].

[16]  [2010] QCAT 412.

[17]  (1993) 118 ALR 248.

[18]  Ibid at [59].

[19]  [2019] QCATA 166.

[20]  [2012] QCAT 23.

[21]  [1975] 3 All ER 333.

[22]  Submissions dated 3 December 2021.

[23]  Section 4(c) of the QCAT Act.

[24]  Section 28(3)(d), ibid.

[25] Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 per Wilson J at paragraph [13].

[26]  Paragraphs [34] to [65] herein.

[27]  Section 46(3) of the QCAT Act.

Close

Editorial Notes

  • Published Case Name:

    Murray v Body Corporate for the Mediterranean Towers CTS 35038

  • Shortened Case Name:

    Murray v Body Corporate for the Mediterranean Towers CTS 35038

  • MNC:

    [2022] QCATA 31

  • Court:

    QCATA

  • Judge(s):

    Member Lember

  • Date:

    25 Jan 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364
2 citations
Jump To
Cite 1 - [2010] QCAT 364
Cite 2 - [2010] QCAT 364
Barnett v Pirrone [2019] QCATA 166
2 citations
Jump To
Cite 1 - [2019] QCATA 166
Cite 2 - [2019] QCATA 166
Body Corporate for Nut Tree Hill CTS 27771 v Lilley [2012] QCAT 23
2 citations
Jump To
Cite 1 - [2012] QCAT 23
Cite 2 - [2012] QCAT 23
Calderbank v Calderbank (1975) 3 All E.R. 333
2 citations
Jump To
Cite 1 - (1975) 3 All E.R. 333
Cite 2 - (1975) 3 All E.R. 333
Colgate-Palmolive v Cussons (1993) 118 ALR 248
2 citations
Jump To
Cite 1 - (1993) 118 ALR 248
Cite 2 - (1993) 118 ALR 248
Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226
1 citation
Jump To
Cite 1 - [2011] QCATA 226
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
2 citations
Jump To
Cite 1 - (1988) 81 ALR 397
Cite 2 - (1988) 81 ALR 397
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) [1988] FCA 202
2 citations
Jump To
Cite 1 - [1988] FCA 202
Cite 2 - [1988] FCA 202
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
4 citations
Jump To
Cite 1 - [2010] QCAT 412
Cite 2 - [2010] QCAT 412
Cite 3 - [2010] QCAT 412
Cite 4 - [2010] QCAT 412
The Mediterranean Towers [2020] QBCCMCmr 245
2 citations
Jump To
Cite 1 - [2020] QBCCMCmr 245
Cite 2 - [2020] QBCCMCmr 245
The Mediterranean Towers [2020] QBCCMCmr 552
2 citations
Jump To
Cite 1 - [2020] QBCCMCmr 552
Cite 2 - [2020] QBCCMCmr 552
Todrell Pty Ltd v Finch[2008] 2 Qd R 95; [2007] QSC 386
2 citations
Jump To
Cite 1 - [2007] QSC 386
Cite 2 - [2007] QSC 386

Cases Citing

Case NameFull CitationFrequency
Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors (costs) [2022] QCAT 2252 citations
1

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