COSTS - whether the applicant must compensate the respondents for loss resulting from the application.

Act, s 94C.

Within one month, the applicant must pay the Body Corporate for Bell Park $352.50, and Cambridge Management Services $1,647.50, in compensation for losses resulting from the application.

• [1] On 24 October 2025 I dismissed the bulk of Mr Clarke's application against the body corporate and Cambridge Management Services as misconceived, vexatious, or lacking substance, and promised a further order on the question of costs.[1] Both respondents had requested compensation for their losses resulting from the application but failed to provide evidence of the claimed losses in their submissions. I requested evidence of the losses and, when received, gave Mr Clarke the opportunity to comment on it. I will now decide whether costs are appropriate and their amount.
• [2] Section 94C of the Act allows a referee to order an applicant to compensate respondents for loss resulting from an application where "an application for an order" is dismissed because "it appears to the referee that the application is frivolous, vexatious, misconceived or without substance". Mr Clarke suggests a costs order cannot be made in this case because I partially found in his favour, declaring on 24 October that minutes of a committee meeting were distributed late while dismissing the other 20 orders sought. But Members Barlow SC and Hanly of the Queensland Civil and Administrative Tribunal found with respect to the Body Corporate and Community Management Act 1997's similar costs provisions, which were brought across to the present Act with the 2022 amendments, that a partial finding in favour of an applicant does not preclude a costs order being made where the bulk of the application is dismissed because it is frivolous, vexatious, misconceived or without substance.[2] I see no reason the same would not apply here.
• [3] The body corporate claims compensation of $352.50 for fees paid to its body corporate manager to respond to the application. The body corporate's submission in response to the application was written and submitted by the body corporate manager, and the body corporate manager submitted a copy of an invoice to the body corporate in the claimed amount. That seems a modest amount given the time likely to be involved in reading a 562 page application, drafting and submitting a response, and responding to my subsequent inquiries. I have no difficulty accepting that it would have cost the body corporate at least that much.
• [4] Cambridge Management Services engaged a lawyer to draft its submission. It submitted a copy of an invoice issued by Chambers Russell Lawyers for $7,700 in professional fees to review and respond to the application.
• [5] Mr Clarke opposes the requests for costs. Some of his arguments are presented as repudiations of the order of 24 October and are better suited to an appeal of that order. The present order is solely concerned with whether Mr Clarke should pay the respondents' costs. It is not a vehicle for amending the earlier order.
• [6] Mr Clarke's submission on costs frequently refers to case law that does not exist, which was unhelpful.[3] It is also filled with footnote or endnote numbers that lead nowhere. There are no footnotes or endnotes.
• [7] Nevertheless, the following relevant arguments may be gleaned from the submission:
  1. I should not have decided whether Mr Clarke's application was vexatious until deciding whether to order costs.
  2. "...the Referee's act of issuing letters on 22 October 2025, requesting cost evidence from the Respondents prior to the issuance of the final determination on the merits, [indicates] the Referee was already satisfied that the Applicant's primary application would be found vexatious or misconceived before all submissions were considered and the final determination issued."
  3. The respondents are not entitled to compensation because their own vexatious conduct of failing to respond to Mr Clarke's correspondence forced the application.
  4. The length of the application was necessary to address all the breaches committed by the respondents.
  5. I should have focussed on the substance of the application when assessing whether it was vexatious or misconceived, not the administrative burden imposed by its length.
  6. It was necessary to name Cambridge Management Services as a respondent because it is "the Contracted Agent and Executive Arm of the Body Corporate Committee. The application meticulously detailed that the systemic failures - including the handling of correspondence, distribution of minutes, and general administrative deficiencies - were functions performed by CMS on behalf of the Body Corporate. The BCM is a necessary party for any practical relief."
  7. I should have invited Mr Clarke to add the principal body corporate as a party rather than finding it was misconceived to seek orders against a non-party.
• [8] In the same order:
  1. I do not see why I was constrained from deciding whether Mr Clarke's application was frivolous, vexatious, misconceived or without substance on 24 October when I decided whether to grant the orders he sought. That was the point at which I dismissed the application for most of the orders. Section 94C(1)(a) of the Act refers to an order to dismiss being made "for the reason that it appears to the referee that the application is frivolous, vexatious, misconceived or without substance". If that was the reason for the dismissal, it seems proper to have explained that in the associated reasons. Both respondents had specifically argued for a dismissal on that basis in their submissions and Mr Clarke had replied, so I already had the benefit of the parties' arguments on that point. The only thing missing was evidence of the claimed loss.
  2. When I wrote to the respondents seeking evidence of their losses, I had already read the application, submissions, and reply. I was forming the view that the application was substantially frivolous, vexatious, misconceived or without substance. I did not request anything further on that point from the parties. I only sought to establish whether the respondents had suffered a loss and its amount, which is relevant to the present costs determination but not to the decision of 24 October.
  3. As discussed at paragraphs 2-7 of the 24 October order, the body corporate was not obliged to respond to Mr Clarke's correspondence.
  4. I was not persuaded of most of the alleged breaches. Much of the application was devoted to the pursuit of orders similar to orders Mr Clarke has unsuccessfully sought in previous applications.
  5. I noted the length of the application at paragraph 40 only after I had already described at paragraphs 35-39 how the application was misconceived, possibly vexatious, and/or lacking substance. My point was that its length "condemned the respondents to devote significant time and resources to it". The implication was that there was likely to have been costs associated with that.
  6. Despite Cambridge being named as a respondent, no orders were sought against it. The orders all sought to compel the body corporate or principal body corporate to do something.
  7. Mr Clarke cannot make an application against the principal body corporate.[4]
• [9] I remain of the view that Mr Clarke's application was substantially misconceived, vexatious, or lacking substance. It put the respondents to the expense and inconvenience of responding, often to arguments and allegations that have been unsuccessfully made to referees many times in the past. It came on the heels of some 40 previous, largely unsuccessful applications against the body corporate, in addition to appeals against some of those decisions. Aspects of those prior applications and appeals have been described in the following terms:

In all other respects the application is frivolous, vexatious, misconceived and simply irrational.

Continually lodging applications seeking the same orders with absolutely no legislative basis is an abuse of process by the applicant.[5]

I consider the inclusion of this order and the pursuit of this appeal on this ground to be frivolous and vexatious. Had I any discretion, I would have awarded costs against the appellant for his persistence in raising this ground in disregard of previous rulings.[6]

Both orders sought have been dismissed by referees previously and by the appeal tribunal. There is nothing in submissions to distinguish these findings. The raising of these issues again is frivolous and vexatious.[7]

I have dismissed the application. There is no breach of the BUGT Act identified by Mr Clarke or established on the material before me. The application is entirely without merit. Aspects of it were misconceived and without substance.[8]

• [10] In view of the failings of the present application and Mr Clarke's history of lodging applications with similar deficiencies, he should compensate the respondents for their losses.
• [11] I am satisfied the body corporate suffered a loss of $352.50 and Cambridge Management Services suffered a loss of $7,700. The total amount of costs I may order under section 94C is $2,000.[9] Consequently, Mr Clarke must pay the body corporate $352.50 and Cambridge Management Services $1,647.50.

[1] Bell Park [2025] QBCCMCmr 367 at [33] - [41].

[2] Williams v Body Corporate for Circle on Cavill [2012] QCATA 166 at [41]- [50].

[3] E.g. The Queen v Judicial Tribunal; Ex Parte Jones [2018] QCA 105; Clarke v The Body Corporate for Bell Park [2018] QSC 123; Bugden v The Body Corporate for Sanctuary Pines [2008] QBCCMCmr 101; Ex Parte Smith [2023] VCAT 122; Body Corporate for Sunseeker Apartments v Ruggles [2023] QCATA 45.

[4] Locke and Ors v Hope Island Resort Principal Body Corporate, SOUT-MAG-00160737/10(7), unreported decision, 15 March 2011.

[5] Bell Park [2016] QBCCMCmr 93 at [71]- [72].

[6] Magistrate Sinclair, Clarke v Body Corporate for Bell Park, unreported decision of 12 March 2019 at [40], [43] & [45].

[7] Bell Park [2020] QBCCMCmr 50 at [20].

[8] Bell Park [2023] QBCCMCmr 99 at [40].