Most Read Contributor in Australia, September 2016
Under the Queensland Civil and Administrative Tribunal (QCAT)
Act, parties will only be awarded costs if "the interests
of justice require it" and costs are not often awarded in
favour of a successful party. However, in the recent decision of
Choi v Mee Wah To (No 3)  QCAT 030 (the Choi
Case) QCAT awarded costs. Given the rarity of such an
occurrence, a brief examination of the case and QCAT's findings
The Choi Case
The facts, put simply, were as follows:
The tenant, Eugene Choi, operated a convenience store at
premises leased from the landlord. A dispute arose over the precise
area of the lease. The tenant argued that the survey plan annexed
to the lease (which was consistent with the Lessor Disclosure
Statement) represented the true extent of the leased premises. The
landlord argued common mistake and said that she had signed the
lease without reading it and never meant the lease to be for the
When the landlord refused to deliver up the whole of the
premises, the tenant applied to QCAT for a declaration (among other
things) confirming her title to the premises as outlined in the
survey plan annexed to the lease.
The Tribunal held that the lease instrument was not invalidated
due to mistake and, further, if any mistake had occurred it was not
induced by the tenant but was a unilateral error on the
landlord's part. Further, there was no fraud on the part of the
tenant and it is no excuse for a landlord to say "I did
not read the document before I signed it."
The tenant was therefore successful in the proceedings. The
landlord appealed the decision unsuccessfully and, subsequently,
the tenant made an application for the costs of the
The issue of costs
The QCAT Act states that (except as otherwise provided), each
party to a QCAT proceeding must bear their own costs.1
It is only where the "tribunal considers the interests of
justice require it" that the Tribunal is empowered to
make an order for costs against a party to a
In deciding whether to award costs, the tribunal may have regard
to a number of factors:3
whether a party has acted in a way that unnecessarily
disadvantages another party
the nature and complexity of the dispute
the relative strengths of each party's claim/s
the financial circumstances of the parties to the proceeding;
anything else the tribunal considers relevant.
In the Choi case, QCAT found that the tenant was
"substantially successful", but that, in itself,
is not a sufficient reason for an award of costs. The discretion to
award costs is guided by the factors listed above and QCAT found
that those most relevant to the proceedings were numbers (2) and
The nature and complexity of the dispute
QCAT determined that the dispute "was highly
complex." In addition to the outline mentioned above,
there was an initial jurisdictional challenge in the Supreme Court,
followed by a two-day trial in QCAT which canvassed (among other
things) difficult questions of the interpretation of a lease. In
this respect, QCAT found that the dispute was "decidedly
The relative strengths of each party's claim/s
QCAT stated that it was "unimpressed" by the
landlord's claim that hasty production of the lease documents
resulted in a misleading plan. Further, the landlord's attempt
to "rewrite" the lease was "utterly
devoid of merit." Most importantly, QCAT determined that
because the landlord did not challenge the Tribunal's decision
on this point (just the award of compensation); this was indicative
of strength of the tenant's case, and the corresponding
weakness of the landlord's case.
QCAT considered that where the costs of the proceeding
effectively deprive a party of the amount of the judgment
(particularly when the matter requires legal representation), then
the interests of justice may require an award if costs. QCAT
determined that this was such a case.
The tenant filed a detailed bill of costs, in taxation form, of
some 40 pages claiming a total of $28,027.86. The Tribunal perused
the bill carefully and ultimately awarded costs in the amount of
1QCAT Act, section 100.
2QCAT Act, section 102(1).
3QCAT Act, section 102(3).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Peter Sise explores how your contractual clause for recovery of legal costs might not do what you think it does.
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