Australia: A rare occurrence: the award of costs in the Queensland Civil and Administrative Tribunal

Last Updated: 21 March 2014
Article by Toby Boys and Abbey Richards
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) [2014] 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 is warranted.

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 described area.
  • 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 proceedings.

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 proceeding.2

In deciding whether to award costs, the tribunal may have regard to a number of factors:3

  1. whether a party has acted in a way that unnecessarily disadvantages another party
  2. the nature and complexity of the dispute
  3. the relative strengths of each party's claim/s
  4. the financial circumstances of the parties to the proceeding; and/or
  5. 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 (3) above.

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 complex."

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.

Other considerations

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 $21,046.86.


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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Toby Boys
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