O'Connell v Kawana Tennis Club Inc (No 2)
[2025] QSC 79
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- Unreported Judgment
- O'Connell v Kawana Tennis Club Inc (No 2)[2025] QSC 79
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O'Connell v Kawana Tennis Club Inc (No 2)[2025] QSC 79
O'Connell v Kawana Tennis Club Inc (No 2)[2025] QSC 79
SUPREME COURT OF QUEENSLAND
CITATION: | O'Connell v Kawana Tennis Club Inc (No 2) [2025] QSC 79 |
PARTIES: | JOSIE MAREE O'CONNELL (Applicant) v KAWANA TENNIS CLUB INC (Respondent) |
FILE NO/S: | BS 793 of 2025 |
DIVISION: | Trial Division |
PROCEEDING: | Originating Application |
DELIVERED ON: | 23 April 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Bowskill CJ |
ORDERS: |
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CATCHWORDS: | ASSOCIATIONS AND CLUBS – INCORPORATED ASSOCIATIONS – MEMBERS – where the applicant successfully challenged the validity of the respondent’s decision terminating her membership – whether the respondent should be ordered to pay the applicant’s costs and, if so, on the standard or indemnity basis Uniform Civil Procedure Rules 1999 (Qld), r 681 |
COUNSEL: | C J Conway, for the applicant J Nickless, sol, for the respondent |
SOLICITORS: | Swanston & Associates, for the applicant Gosai Law, for the respondent |
- [1]For reasons published on 28 March 2025, the Court declared that the decision made by the management committee of the respondent terminating the applicant’s membership was void and ordered that the decision be set aside: O'Connell v Kawana Tennis Club Inc [2025] QSC 60. At the time judgment was delivered, directions were made for the parties to provide submissions in relation to costs.
- [2]The applicant seeks an order that the respondent pay her costs, assessed on the indemnity basis, in light of the respondent’s refusal to accept an offer to settle the dispute prior to filing the originating application and the respondent’s conduct of the proceeding. The respondent submits the appropriate order is that each party bear its own costs.
- [3]There is no reason why the general rule, that costs follow the event (r 681 UCPR), should not apply in this case. The applicant was wholly successful. The respondent essentially submits that the general rule should be displaced because the management committee genuinely believed that it had given the applicant adequate notice of the allegations against her, prior to making its decision, and acted in good faith in advancing its arguments against the relief sought by the applicant. This tends to misunderstand the purpose of an award of costs, which is to compensate the successful party, not punish the unsuccessful party. The general rule, reflected in r 681 UCPR, is not premised upon misconduct by the unsuccessful party.
- [4]As to the basis for assessment of the costs, whilst it would have been preferable for this matter to be resolved without the need for court proceedings, I am not persuaded that it was unreasonable for the respondent not to accept the offer made by the applicant on 8 January 2025, prior to commencing this proceeding, nor that the respondent’s conduct of the proceeding was such as to justify an order for assessment of costs on the indemnity basis.
- [5]Prior to commencing the proceeding, the applicant offered to resolve the dispute on the bases that the management committee resolve to set aside its decision, reinstate the applicant’s membership and pay her annual membership fees for 2025, publish an apology, follow a “grievance procedure” said to have come into effect under the Associations Incorporation Act 1981 (the application of which is not clear), and pay the applicant’s legal costs to that date fixed at $3,000.00. It can readily be seen that this goes much further than the relief sought in the application which was subsequently filed, and the orders which were made. No subsequent offer was made, after commencement of the proceeding.
- [6]As to the conduct of the matter, there was one adjournment – granted with consent from both parties – but otherwise the application proceeded in a timely way, from its commencement on 27 February to final hearing on 25 March 2025. The fact that the respondent “actively resisted the application” does not support an award of costs on the indemnity basis. This was not a case where the respondent’s position was inarguable.
- [7]It is appropriate that the respondent pay the applicant’s costs of the proceeding, with the costs to be assessed on the standard basis.