Wagners Properties Pty Ltd v Atlas House Removers Pty Ltd [No 2]
[2023] QSC 44
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- Unreported Judgment
- Wagners Properties Pty Ltd v Atlas House Removers Pty Ltd [No 2][2023] QSC 44
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Wagners Properties Pty Ltd v Atlas House Removers Pty Ltd [No 2][2023] QSC 44
Wagners Properties Pty Ltd v Atlas House Removers Pty Ltd [No 2][2023] QSC 44
SUPREME COURT OF QUEENSLAND
CITATION: | Wagners Properties Pty Ltd v Atlas House Removers Pty Ltd (No 2) [2023] QSC 44 |
PARTIES: | WAGNERS PROPERTIES PTY LTD (applicant) v ATLAS HOUSE REMOVERS PTY LTD (respondent) |
FILE NO/S: | BS 1602 of 2023 |
DIVISION: | Trial Division |
PROCEEDING: | Application as to costs |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 13 March 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers. Written submissions provided by the respondent dated 9 March 2023; written submissions provided by the applicant dated 10 March 2023 |
JUDGE: | Kelly J |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONS GENERALLY – where the respondent sought a stay of proceedings initiated by the applicant – where the proceeding initiated by the applicant were found to be an abuse of process and a stay of the proceeding was ordered – where the respondent seeks costs of and incidental to the proceeding – whether costs are to be ordered against the applicant and on what basis Retail Shop Leases Act 1994 (Qld) Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225 Flynn v Suncorp-Metway Limited [2009] QSC 175 Frikton v Plastiras [2010] QSC 5 Goldsmith v AMP Life Ltd [2023] QSC 015 Henry v Henry (1996) 185 CLR 571 Wagners Properties Pty Ltd v Atlas House Removers Pty Ltd [2023] QSC 40 |
COUNSEL: | M C Long for the applicant P Sams for the respondent |
SOLICITORS: | Thynne & Macartney for the applicant PHV Law Solicitors & Consultants for the respondent |
- [1]After hearing the respondent’s application filed 21 February 2023 (“the application”), I ordered that further proceedings under the originating application filed by the applicant on 9 February 2023 be stayed pending the determination or discontinuance of Queensland Civil and Administrative Tribunal (QCAT) proceedings R07117-22.
- [2]My reasons for that order are contained in Wagners Properties Pty Ltd v Atlas House Removers Pty Ltd [2023] QSC 40 (“the primary decision”). In these reasons I have adopted defined terms from the primary decision.
- [3]The tenant seeks its costs of and incidental to the Supreme Court proceeding up until 10 March 2023 on the indemnity basis or, alternatively, on the standard basis.
- [4]The landlord submits that the appropriate orders as to costs are:
- (a)the landlord pays the tenant’s costs of the application on the standard basis; and
- (b)the costs of the Supreme Court proceeding are otherwise reserved.
- [5]I was referred to Colgate-Palmolive v Cussons Pty Ltd,[1] Flynn v Suncorp-Metway Limited,[2] Goldsmith v AMP Life Ltd[3] and Frikton v Plastiras.[4] Ultimately, in the exercise of my discretion as to costs, it is important to have regard to the particular facts and circumstances of the case before me.
- [6]The application was heard by me on 24 February 2023.
- [7]On 13 February 2023, the tenant’s solicitors sent a letter by email to the landlord’s solicitors which relevantly asserted that the landlord, by the Supreme Court proceeding, was seeking to have the Supreme Court determine an issue in dispute in the QCAT proceedings, namely whether the lease was a retail shop lease for the purpose of the Retail Shop Leases Act 1994 (Qld). The letter:
- (a)advised the landlord that the tenant regarded the commencement of the Supreme Court proceeding as primafacie vexatious and oppressiveand referred to Henry v Henry;[5]
- (b)noted that QCAT had jurisdiction to determine the question of whether it had jurisdiction in the matter;
- (c)sought the landlord’s consent to the Supreme Court proceeding being stayed pending the determination of the QCAT proceedings;
- (d)materially advised:
“Please indicate before 12.00 pm tomorrow 14 February 2023 if your client will consent to such a stay. If your client is agreeable, then it might be possible for the parties to seek that order on the papers, without the need for an appearance on 16 February 2023.”
- (e)advised that if the tenant was put to the cost of a contested hearing, it would seek indemnity costs.
- [8]By an email sent on 15 February 2023 to the tenant’s solicitors, the landlord’s solicitors materially advised that the landlord “… does not agree that the commencement of the Supreme Court proceeding is vexatious or oppressive”. No reasons were provided for that position.
- [9]On 21 February 2023, the tenant’s solicitors sent a further letter by email to the landlord’s solicitors which repeated the contention that the Supreme Court proceeding was an abuse of process and ought to be stayed either permanently or at least pending the resolution of the QCAT proceedings. The letter materially stated:
“With a view to avoiding costs and inconvenience to the parties and to the court, our client is willing to consent to orders to that effect, on the basis that there be no order as to costs. … If your client is not willing to consent, then our client intends to file a cross-application for a stay of the proceeding and will be seeking costs on the indemnity basis.”
- [10]By a letter dated 21 February 2023 sent by email, the landlord’s solicitors materially advised the tenant’s solicitors that the landlord did not agree that the Supreme Court proceeding should be stayed. Again, no reasons for that position were provided.
- [11]Ultimately, when the application was heard, the landlord advanced numerous arguments against the stay.[6] The landlord submits that its arguments were reasonably arguable and relies upon that characterisation as a basis for resisting an indemnity costs order. The landlord’s arguments may be described as reasonably arguable. However, the arguments were advanced against the background of concessions that the interim application was properly commenced and QCAT had jurisdiction to decide jurisdictional facts. Those concessions meant that the discretion to order a stay was clearly enlivened and substantive arguments were required to resist the stay proceeding. None of the landlord’s arguments had substantive merit.
- [12]The hearing of the stay application occupied a substantial part of a full court day. In ordering the stay, I relevantly concluded that the Supreme Court proceeding was an abuse of process.[7] I formed the view that to allow the Supreme Court proceeding to continue in parallel with the QCAT proceeding would be manifestly unfair to the tenant and would bring the administration of justice into disrepute among right thinking people.[8] In expressing my reasons for those conclusions, I relevantly found that the Supreme Court proceeding had been inappropriately commenced by originating application because the landlord’s Supreme Court affidavit clearly revealed that substantial disputes of fact were likely and therehad been sufficient time to prepare a claim.[9] I also found that the landlord had adopted inconsistent positions on the hearing of the stay application.[10] The landlord had also provided no explanation as to why it had commenced the Supreme Court proceeding.[11] I found that the landlord was pursuing the Supreme Court proceeding with a view to circumventing the QCAT interim decision and facilitating the determination of issues that were already live before QCAT.[12]
- [13]From 13 February 2023, the landlord was on notice that the tenant considered the Supreme Court proceeding to be an abuse of process, the reasons for that contention and that the tenant would be seeking indemnity costs, in the event the landlord resisted a stay of the Supreme Court proceeding. In my view, it was imprudent for the landlord to refuse the tenants offers for there to be a consent stay of the Supreme Court proceeding without cost consequences. The landlord failed to articulate in its solicitors’ correspondence prior to the hearing of the application, any reason for refusing to consent to the stay. Ultimately, the arguments advanced by the landlord to resist the stay lacked substantive merit. Having regard to all of these circumstances, my finding that the Supreme Court proceeding amounted to an abuse of process and the reasons for that finding, I am satisfied that this is an appropriate case in the exercise of my discretion to order indemnity costs against the landlord. The landlord is correct that the costs awarded should be limited to the costs of and incidental to the application and the costs of the Supreme Court proceeding should be otherwise reserved.
- [14]The order I make is as follows:
- 1.The landlord in proceeding BS 1602 of 2023 pay the tenant’s costs of and incidental to the application filed by the tenant on 21 February 2023, such costs to be assessed on the indemnity basis.
- 2.The costs of proceeding BS 1602 of 2023 are otherwise reserved.