This article about QCAT disputes – this one about the recent dispute over a balcony and opposing resolutions without dissent has been supplied by Hynes Legal.
If you have enjoyed this content and would like to be kept informed about strata matters, click here to subscribe to our weekly newsletter.
Most body corporate disputes are fought out through the Office of the Commissioner for Body Corporate and Community Management (BCCM Office). One of the benefits of the BCCM Office is that adjudicators cannot make costs orders unless an application is dismissed for being frivolous, vexatious, misconceived or without substance. Such orders are rarely made and the maximum that an applicant can be required to pay is $2,000.00.
Accordingly, the BCCM Office is seen as no (or at least very low) cost dispute resolution because the winner isn’t automatically entitled to their costs (unlike the courts).
However, not all body corporate disputes are determined by the BCCM Office. The Queensland Civil and Administrative Tribunal (QCAT) handles complex contractual disputes (for example disputes between caretakers and bodies corporate), lot entitlement disputes and appeals from the BCCM Office.
QCAT was established for the purpose of dealing with matters in a way that is accessible, fair, just, economical, informal and quick and it is required to ‘ensure proceedings are conducted in an informal way that minimises costs to parties…’
In order to achieve the above objectives, the QCAT Act provides that:
- Parties must get permission from QCAT in order to have lawyers attend on their behalf; and
- Each party to a proceeding must bear their own costs. This means that, as a starting point, a successful party in a dispute is not automatically entitled to their costs. This can be contrasted with the courts where the losing party is required to pay the costs of the successful party.
However, it is a mistake for parties and practitioners alike to assume that costs will never be awarded in QCAT as QCAT can award costs ‘where the interests of justice require it…’
When considering whether it is in the interests of justice to make a costs order, QCAT will consider:
- Whether a party acts in a way that unnecessarily disadvantages another party in the proceeding (for example, is the party refusing to comply with QCAT orders, causing delay, being deceptive or vexatious)?
- The nature and complexity of the dispute.
- The strengths of the arguments put forward by each party.
- The financial circumstances of each party.
- Anything else QCAT considers relevant.
Many parties involved in disputes before QCAT make the mistake of thinking that each party bears their own costs and that even if they lose, they will not be required to pay the legal costs of the other side. However, this is a misconception and QCAT members in many body corporate disputes, particularly complex disputes between caretakers and bodies corporate about remedial action notices and termination, will make a cost order against the unsuccessful party especially where one or both parties is legally represented.
Accordingly, parties to disputes in QCAT must not assume that costs orders are a rarity. In the case of Fast Access Finance (Beaudesert) Pty Ltd and Anor v Charter and Anor (No2)  QCATA 172, the Tribunal member said:
“… it would be an exaggeration to describe them [costs orders] as rare. Considering the initial discouragement of s 100, and the fact that many requests for costs are perfunctory and poorly related to the s 102 guidelines, the number of successful applications is significant.”
In the recent case involving a dispute about caretaker remuneration, the QCAT member was required to consider whether it was in the interests of justice to award costs. The caretaker was ultimately successful and, in ordering the body corporate to pay the caretaker’s costs, the QCAT member considered the following factors:
- The complexity of the matter justified legal representation and both parties to the proceeding had been granted legal representation. The use of lawyers by both parties was justified and was of great assistance to QCAT.
- The bodies corporate (this was a layered scheme) had about 150 lot owners and the costs could be shared among the unit holders as opposed to ‘lumping’ them all with the caretaker. On this issue, QCAT stated ‘…the bodies corporate and each of their members, are unlikely to suffer a substantial economic burden from an order for costs, and to contrast that with the burden probably to be suffered by XMR.’
- The caretaker was successful in its arguments and it won on every issue.
In disputes before QCAT, a successful party will always have to convince the Tribunal that a costs order is justified because it is in the interest of justice. This is unlike the courts where a successful litigant is generally awarded standard costs.
In determining whether a costs order is justified, QCAT has to consider (among other things) the complexity of the dispute. Contractual disputes about remedial action notices and termination are defined as complex disputes in the BCCM Act and this factor alone means that legal representation is likely to be granted thus increasing the likelihood of a costs order against the unsuccessful party.
Hynes Legal has vast experience in assisting clients in QCAT disputes. With our specialist knowledge in the areas we advise on, we are well placed to competently and concisely advise our clients and assist in obtaining a timely resolution. If you require assistance call me on 07 3193 0500.
Read our next QCAT disputes article: QLD: QCAT Permits Termination – A Big Win for Bodies Corporate & The Rocks Re-Visited
This post appears in Strata News #115.
Still after more information about QCAT disputes, resolutions without dissent or even more general articles about strata in Queensland? Visit our FactSheet: Strata By-Laws and Legislation OR FactSheet: Strata Legislation Queensland
The photo associated with this post has been supplied by Flickr: Alvaro gl – Brisbane.
After a free PDF of this article as a QCAT disputes resource? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.