Ms Yvonne Raschilla and Mr William Jamieson pay the respondent's costs of the proceedings fixed at $13,107.55

PROCEDURE - COSTS - DISCRETION TO ORDER COSTS - Queensland Civil and Administrative Tribunal Act 2009, ss 100, 102 - MEANING AND EFFECT - where company director consented to Supreme Court Order for appointment of a Receiver and Manager over all assets and undertakings of the applicant company - where proceedings brought in the Tribunal in name of the applicant company without consent of Receiver and Manager - where company director and its representative aware that applicant company did not have standing to be a party in the proceedings - where company director and representative given notice that costs would be sought against them if they continued with proceedings - whether prima facie position that each party should bear its own costs should be displaced - whether in the interests of justice to award costs pursuant to s 102

PROCEDURE - COSTS - NON-PARTIES - where applicant company in receivership - where proceedings initiated in the Tribunal in name of the applicant company by the company director without consent of the Receiver and Manager - where company director not named in the record of proceedings - where company director aware that applicant company did not have standing to be a party in the proceedings - where company director given notice that costs would be sought against her if proceedings continued - whether company director the real party to the proceedings - whether company director actively involved in critical and important aspects in the conduct of proceedings - whether involvement was for improper purpose and personal interest - whether Tribunal should exercise discretion to order costs against company director

PROCEDURE - COSTS - REPRESENTATIVE - Queensland Civil and Administrative Tribunal Act 2009, s 103 - MEANING AND EFFECT - where non-legally qualified accounted appointed officer of the applicant company by the company director - where accountant accepted instructions by company director to represent the applicant company at the hearings and in these proceedings - where representative given notice that costs would be sought against him if proceedings continued - where s 103 of the Queensland Civil and Administrative Tribunal Act 2009 does not discriminate between legally qualified and unqualified representatives - where representative knew that company director did not have authority to bring the application in the company's name - whether the representative should be liable for costs for continued presentation of a plainly unarguable case - whether Tribunal should exercise discretion to order costs against representative pursuant to s 103

PROCEDURE - COSTS - INDEMNITY - where applicant company in receivership - where proceedings initiated in the Tribunal in name of the applicant company by the company director without consent of the Receiver and Manager -where company director real party to the proceeding and actively involved in conduct of proceedings for an improper purpose and personal interest - where representative aware that he was presenting a plainly unarguable case - whether the Tribunal should fix costs against company director and representative on an indemnity basis

Commercial and Consumer Tribunal Act 2003, ss 70, 71

Corporations Act 2001, s 420(2)(k)

Queensland Civil and Administrative Tribunal Act 2009, ss 100, 102(3), 103

Attorney-General v Wilde [1946] NSWStRp 30; (1946) 47 SR NSW 99, cited

Babsari P/L v Wong & Ors [2000] QSC 380, cited

Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 118 ALR 248, applied

Deputy Commissioner of Taxation v Levick [1999] FCA 1580, cited

GDK Financial Solutions Pty Ltd and Others v GDK Financial Solutions Pty Ltd and Others [2006] FCA 1415; (2006) 236 ALR 699, cited

Fick v Groves (No 2) [2010] QSC 182, applied

Herron v The Attorney General for New South Wales (1987) 8 NSWLR 601, cited

Kebaro Pty Ltd v Saunder (2003) FCAFC 5; BC200300185, applied

Knight v FP Special Assets Limited (1992) 174 CLR 178, applied

Nominal Defendant v Kisse [2001] QDC 290, cited

Re Talk Finance and Insurance Services Pty Ltd [1994] 2 Qd R 558, cited

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments [2010] QCAT 334, cited

Rushton (Qld) Pty Ltd v Rushton (NSW) Pty Ltd [2004] QSC 047, cited

Steindl Nominees P/L v Laghaifar [2003] QCA 157, cited

Tamawood Ltd & Anor v Paans [2005] QCA 111, applied

Thiess Pty Ltd v FLSMIDTH Minerals Pty Ltd (No 2) [2010] QSC 120, applied

Todrell Pty Ltd v Finch (No 2) [2007] QSC 386; [2008] 2 Qd R 95, cited

Tyler v Kraus [2002] QCA 544, applied

Young v Toynbee [1910] 1 KB 215, 226, cited

Mr N Ferrett of Counsel instructed by Nicholsons Solicitors

1. On 2 July 2010 I dismissed an application brought in the name of Ralacom Pty Ltd to appoint a specialist adjudicator under the Body Corporate and Community Management Act 1997 (BCCMA) and the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), and an application for an injunction prohibiting the respondent body corporate from acting on a resolution to terminate a caretaking agreement and an associated letting agreement between it, and Ralacom.
2. The reasons for that decision identified the apparent hopelessness of the applications[1]. In particular the applicant was not, in truth, the company: the applications were filed in QCAT by a director of Ralacom purporting to do so in its name, but a receiver and manager had previously been appointed to the company and the receiver had neither consented to nor authorised the proceedings. Further, QCAT had no jurisdiction to grant the other relief Ralacom sought - the appointment of a specialist adjudicator, a power that is invested solely in the Commissioner under the BCCMA.
3. Following delivery of the decision the parties were invited to file and serve submissions about any application for costs, according to an agreed timetable. The parties have done so, and the body corporate seeks an order for its costs. In addition to costs from the company, it also seeks costs against Ralacom's sole director Ms Raschilla and its representative in the proceedings, and at the hearing, Mr Jamieson. The costs are sought on an indemnity basis.
4. The starting point concerning costs in QCAT is that each party must bear its own: QCAT Act, s 100. This presumption may, however, be displaced if the Tribunal considers it in the interests of justice to order a party to pay all or part of the costs of another party: s 102(1). The phrase "in the interests of justice" is not defined in the Act but is to be construed according to its ordinary and plain meaning, which obviously confers a broad discretionary power on the decision-maker[2].
5. In determining whether it is in the interests of justice to award costs against another party the Tribunal may have regard to the nature and complexity of the dispute; the relative strengths of the claims made by each of the parties; and, whether a party has acted in a way that unnecessarily disadvantages another party: QCAT Act, s 102(3).
6. Broadly speaking, the body corporate submits that the proceedings brought in Ralacom's name were vexatious, and in contempt of the Supreme Court order of 9 June 2010 appointing a receiver and manager to the company; and that the applicant's commencement of, and persistence with, the application 'unnecessarily disadvantaged'[3] the respondent in the proceedings.
7. The respondent's application not only raises questions about the Tribunal's discretion to award costs in a proceeding, but also the discretion to order costs against persons claiming to represent a corporation, and non-legal representatives of a party, and whether costs should be awarded on an indemnity basis.
8. Ralacom Pty Ltd was the caretaking service contractor at the Paradise Island Apartments Community Titles Scheme until 28 May 2010 when the body corporate, following an extraordinary general meeting, resolved to terminate the caretaking agreement and an associated letting agreement. On that same day, the body corporate gave Ralacom's financier, Westpac Banking Corporation, notice of the termination.
9. On 31 May the financier, acting under its loan agreement, appointed a receiver and manager over all of Ralacom's assets including its interest in the management and letting rights agreement with the body corporate.
10. On 4 June Mr Jamieson filed the present proceedings in QCAT showing the company Ralacom as the named applicant, and himself as its representative. Just a few days later, however, the company's financier applied to the Supreme Court for an order formally appointing a receiver and manager to it.
11. On 8 June 2010 it was ordered, inter alia, that although the receiver would have full access to all financial and other records of Ralacom, the day to day operation, control, management and administration would remain with the company's officers. At the first hearing in QCAT on 25 June Mr Jamieson relied on this part of the order to submit that Ms Raschilla, as the sole director of Ralacom, still had standing to initiate and continue with proceedings on its behalf, and that he could appear on her instructions as the company's representative.
12. What Mr Jamieson failed to disclose was that a subsequent order of the Supreme Court of 9 June, made with the consent of all parties, effectively gave the receiver and manager absolute control over Ralacom's assets and undertakings.
13. Under Chapter 5 of the Corporations Act 2001 (Cth) (Corporations Act) the receiver, on appointment, becomes an agent of the company and is entitled to exercise authority pursuant to the terms of the appointment[4]. Section 420 of the Act confers on the receiver a wide range of powers including, relevantly here, the right to execute any document, bring or defend any proceedings, or do any other act or thing in the name of and on behalf of the corporation: s 420(k).
14. The order meant that Ms Raschilla required the consent of the receiver to continue the proceedings in Ralacom's name. No consent has ever been given. Ms Raschilla was reminded of the need for the receiver's authority by the respondent's lawyers in an email dated 24 June, the day before the first hearing in QCAT.
15. Notwithstanding the order of 9 June, and the notice, Mr Jamieson persisted with the applications in Ralacom's name - on, it is clear, Ms Raschilla's instructions. It also appears, from an affidavit filed in her name, that she had purported to appoint Mr Jamieson an officer of the company. At the hearings he made it clear he accepted that purported appointment and claimed to appear both as an officer of Ralacom, and as its representative.
16. Ms Raschilla and Mr Jamieson may have genuinely, but mistakenly, believed they could still speak for the company. Although Ms Raschilla did not address the tribunal at the hearings, in her affidavit of 28 June she said:

I believe that, as the sole director of Ralacom Pty Ltd, I still have certain responsibilities and duties to the company, namely to protect the interests of all shareholders, creditors, employees, and not just the interest of Westpac under its charge, and it is with this in mind that I am continuing the dispute application with QCAT, because the full value of the company assets, far outway [sic] the amount owed to Westpac under the charge, and hence the objective for which the receiver was appointed. Extract of Valuation Report attached to this my affidavit & marked "H", showing valuation assets at $3,930,000.00 as at 20 March 2009.'[5]

1. No attempt has ever been made to establish that Ms Raschilla or Mr Jamieson had the receiver's authority. The circumstances just described mean it is inescapable that Ralacom Pty Ltd was not, in truth, the applicant in these proceedings.
2. Unhelpfully, the respondent's submissions fail to address the question how the company might be liable for costs when (although its name was used) it was not, in truth, a party. Nothing in the submissions speaks to the question how, or why, an order could or should be made against it. Nor does anything in the respondent's material suggest it has given notice, to the receiver, of an intention to seek costs against the company. In the absence of any evidence that the receiver, in control of the company after the order of 9 June, authorised or adopted the proceedings there is no basis upon which a costs order ought be made against it.
3. Costs are also sought from Ms Raschilla, and Mr Jamieson. The general law recognises that it may be appropriate in some circumstances to order costs against parties not named on the record of proceedings, but who play an active role in the conduct of them.
4. The body corporate contends that the applications brought here raised complex questions of law relating to the Ralacom's capacity to pursue these proceedings while in receivership; whether there was a proper claim under the BCCMA; the nature of and principles upon which the relief was sought; and the extent, if any, to which the application was vexatious or in contempt of the order of 9 June. The complex nature of the dispute means, the respondent contends, that it was justified in obtaining legal representation and, also, should have its legal costs.
5. The respondent relies on the decision of the Court of Appeal in Tamawood Ltd & Anor v Paans[6], a case decided under the costs provision of the now repealed Commercial and Consumer Tribunal Act 2003 (CCT Act). Although those provisions are not analogous to the equivalent provisions under the QCAT Act, the principles found in Tamawood provide guidance about the circumstances in which it may be in the interests of justice for this tribunal to award costs against parties.
6. In Tamawood, Ms Paans commenced proceedings in the CCT for damages against Tamawood Ltd and another party. The two matters were heard together and Ms Paans was awarded monetary damages. The CCT, however, refused to order costs in her favour.
7. All parties then sought leave to appeal to the District Court, where the appeals from the respondents were refused, but Ms Paans was awarded her costs in the proceedings. The respondents than sought leave to appeal that costs decision to the Court of Appeal, contending that the decision of the District Court was based on an erroneous construction of ss 70 and 71 of the CCT Act. Those provisions state:

The main purpose of this division is to have parties pay their own costs unless the interests of justice require otherwise.

(4) In deciding whether to award costs, and the amount of the costs, the

(b) the conduct of the parties to the proceeding before and during the

(d) the relative strengths of the claims made by each of the parties to

(e) any contravention of an Act by a party to the proceeding;

(f) for a proceeding to which a State agency is a party, whether the

other party to the proceeding was afforded natural justice by the

The tribunal may consider whether a party to a proceeding is acting in a

way that unreasonably disadvantages another party to the proceeding.

The tribunal may consider whether the proceeding, or a part of the

(5) A party to a proceeding is not entitled to costs merely because -

(a) the party was the beneficiary of an order of the tribunal; or

(b) the party was legally represented at the proceeding.

1. The similar QCAT Act provision to s 70 is, it might be said, in terms that more plainly indicate that the legislature had turned its face against awards of costs in this tribunal: s 100 says that 'Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party's own costs for the proceeding'.
2. In considering ss 70 and 71 Keane JA (as his Honour then was) referred, however, to two matters relevant here. First, his Honour held that the CCT provisions negated the traditional proposition that costs should prima facie follow the event (unless of course that the Tribunal considers that another order is more appropriate) and that the nature and extent of the power to award costs could only be discerned by close consideration of the terms of the statute which created and prescribed the occasions and conditions for its exercise[7]. Sections 100 and 102 of the QCAT Act attract the operation of the same principles.
3. Second, Keane JA was of the view that where the complexity of the matter justified legal representation, it would not be in the interests of justice to bar the successful party from recovering costs that were reasonably necessary to achieve a satisfactory outcome[8].
4. That conclusion must, here, be considered in the light of the difference between s 70 of the CCT Act and s 100 of the QCAT Act. Section 70 speaks of a 'main purpose', but s 100 mandates that parties shall bear their own costs. Section 70 contains, within itself, a reference to the condition or circumstance in which the main purpose may be subsumed to the interests of justice; s 100 has no such proviso, although it appears later, in s 102(1).
5. Under that subsection QCAT has a discretion to make a costs order '...if the tribunal considers the interests of justice require it...'. Section 102(3) says that, in deciding whether to award costs, the tribunal may have regard to matters not dissimilar to those set out in s 71 of the CCT Act including, in particular for present purposes, the nature and complexity of the dispute and the relative strength of each party's claims.
6. Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase 'the interests of justice' point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.
7. I am satisfied that is the case here. As the voluminous supporting material indicated, the application brought in Ralacom's name involved a complex history of disputes between it, and the body corporate. Urgent injunctive relief was sought, as was relief under the BCCMA, which on any view involved some complexity, and urgency, and warranted the instruction of solicitors and counsel by the body corporate. The standing of the company was unclear, and confused by the applicant's failure to inform this tribunal about the real outcome of the Supreme Court Proceedings.
8. These are the matters of the kind referred to in ss 102(3)(a), (b) and (c) of the QCAT Act. In particular, the applicant's failure to divulge, at the first hearing, the fact of the order of 9 June occurred in circumstances that may properly be categorised, at least, as conduct which unnecessarily disadvantages another party: s 102(3)(a). The body corporate was, in short, forced to appear at and resist misconceived and unauthorised proceedings. These factors point compellingly to the conclusion that the interests of justice warrant a costs award here, despite the principle set out in s 100.
9. It remains then to be determined against whom costs should be ordered, and on what basis. Ordinarily, costs orders are not made against parties not named on the record of the proceedings. The respondent's submissions did not, again unfortunately, refer to any authority to support its contention that costs should be awarded against Ms Raschilla or Mr Jamieson other than a bare assertion that to do so would be in the interests of justice.
10. There are circumstances when it is within a court's discretion to order costs against parties not named on the record. The leading case is Knight v FP Special Assets Limited (1992) 174 CLR 178. Company liquidators commenced proceedings in the name of companies in liquidation, and were ultimately unsuccessful. Costs were ordered against the liquidators.
11. On appeal to the High Court Mason CJ and Deane J (with whom Gaudron J agreed) found that although, in principle, costs orders should only be made against parties to the litigation, there will be circumstances in which considerations of justice support an order for costs against third parties. They said:

That category of case consists of circumstances where... the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation.[9]

1. Nor is it unusual to find costs ordered against company directors who actively conduct and fund litigation on behalf of the company, and who therefore have a personal interest in the successful conclusion of the litigation[10].
2. The case law touching orders of this kind was helpfully reviewed in Kebaro Pty Ltd v Saunder[11] where in a joint judgment of the Full Federal Court (Beaumont, Sundberg and Hely JJ) it was said at [103]:

Whilst such an order is extraordinary, the categories of case are not closed, although in order to warrant its exercise, a sufficiently close connection, or as Gobbo J expressed it, a "real and direct and ... material" connection with the principal litigation, must be demonstrated; in the words of Callinan J, the non-party can fairly be liable if adjudged by its conduct, to be a real party to the litigation, even if not the real party.

1. In establishing the degree of involvement in the litigation the court also emphasised at paragraphs [113] - [114] that:

Although the phrase "played an active part in the conduct of the litigation" was used in Knight at 193, in the context of the role played by the receivers in that case, the phrase is not a term of art and thus can have no technical meaning. Moreover, as has been said, whilst his Honour did rely on the provision of funding, he viewed this in the much broader spectrum of events he described. Further, as in the case of "the", contrasted with "a", real party issue, it is not, in our view, necessary to demonstrate that the non-party exclusively controlled the conduct of the proceedings. It is enough to point to its role as one of the actors in the scene in important and critical respects.

In our view, the matters mentioned by the Judge as constituting the playing of an active part in the conduct of the litigation were reasonably capable of that characterisation, bearing in mind always that the issue here is whether the conduct of the non-party is sufficiently closely connected with the prosecution of the litigation, so that the non-party may fairly be described as "a real party" in "critical" and "important" respects.

1. The mere fact that a person is the sole director and shareholder of a company which is unsuccessful in litigation will not, without more, suffice to justify a costs order against that person, especially in circumstances where the director did not receive notice that costs would be sought against them personally, or where the evidence did not establish bad faith, misconduct or improper motive[12].
2. What the authorities do suggest, however, is that if the conduct of the company officer is sufficiently connected to the matter in important and critical respects, such that they may be described in fact as the real party to the proceeding, and there is evidence showing bad faith, misconduct, or an improper purpose and a personal interest in the successful conclusion of the litigation, then it may be appropriate to order costs against them.
3. It is not apparent whether Ms Raschilla was principally responsible for the funding of the proceedings but, as the decision in Kebaro illustrates, funding is only one of the factors which has to be considered in the broader spectrum of events, and all that it is necessary to show is that the non-party had "a role as one of the actors in the scene in important and critical respects."
4. Ms Raschilla argues that any misconception or misunderstanding on her part in bringing the application was not realised until 9 June 2010, after which she did no more than comply with QCAT directions for submissions, and hearing dates. This argument fails to address the question why she, and Mr Jamieson, persisted with the proceedings.
5. In the present case there is evidence to show that she was closely connected to the prosecution of the case in critical respects, and that her participation was for, at least, a misconceived motive. As the passage from her affidavit set out earlier shows, she deliberately played an active role in the instigation and conduct of the proceedings and was, in truth, the real applicant. Her interest was, on any view, personal.
6. Importantly, she persisted with the applications when to do so was either wilful, in the sense that she deliberately ignored the major procedural hurdle presented by the absence of the receiver's authority, or mischievous, in the sense that she chose not to seek (or, perhaps, take) legal advice about her position but, rather, to simply press on[13]. A major part of the relief she sought was unavailable, and the balance was only achievable if the receiver adopted or authorised the continuation of the proceedings. To persist, in those circumstances, is behaviour which can fairly be categorised as misconduct, or as acting in bad faith, in the sense discussed earlier.
7. For these reasons, I am satisfied that it is in the interests of justice to order costs against Ms Raschilla.
8. As to Mr Jamieson, the same arguments arise because he also purported to appear on behalf of the company, as one of its officers. He is also exposed to a costs order because he appeared as the company's representative. The QCAT Act grants the Tribunal discretion to order costs against a representative: s 103. The discretion arises if the representative is found to be responsible for 'unnecessarily disadvantaging another party to the proceeding'. Where this occurs the Tribunal can order the representative to pay a certain amount as compensation for unnecessary costs.
9. Mr Jamieson is an accountant. He did not claim any legal qualifications. In my earlier decision I referred to the fact he was, however, plainly familiar with the matter and took an active role. He was responsible for filing the applications and he appeared at both hearings, with leave, as the applicant's representative.
10. The QCAT Act does not discriminate between persons with, or without, legal qualifications in granting leave for representation, and s 103 does not draw a distinction between legally qualified and unqualified representatives.
11. The discretion to award costs against representatives will usually be exercised sparingly, having regard to all the circumstances of the particular case[14]. Costs have been awarded where advocates acted without proper authority in commencing proceedings, and where they should have known the proceedings were hopeless and their continuation was akin to an abuse of process.
12. A solicitor who institutes an action without authority may become personally liable for the other party's costs: Young v Toynbee [1910] 1 KB 215, 226; Attorney-General v Wilde [1946] NSWStRp 30; (1946) 47 SR NSW 99, 109; Nominal Defendant v Kisse [2001] QDC 290.
13. In Tyler v Kraus[15] the solicitors for the appellant plaintiff knew he was in prison at the time proceedings were commenced and that he did not, therefore, have authority to initiate the proceedings without the consent of the Public Trustee. The lawyers were invited to discontinue the proceedings without incurring liability for costs, but declined to do so. The action was ultimately unsuccessful and the court found that, because the solicitors knew the plaintiff did not have standing to initiate the proceedings, it was appropriate to order that they pay the costs of the respondent on an indemnity basis.
14. If he was a lawyer, Mr Jamieson's continued presentation of a clearly hopeless case would qualify as an abuse of process, exposing him to a discretionary order for costs. In Deputy Commissioner of Taxation v Levick[16] Hill J observed that:

Where the foundation for a third party cost order is said to be the case which has been advanced on behalf of the client by the solicitor, it is necessary, as suggested above, to draw the line between an argument which does not succeed and one that justifies a third party cost order. That line can most readily be found in the concept of abuse of the Court's process. A case which is advanced, not to vindicate the legal rights of an applicant, but for an ulterior purpose such as the production of gross delay will clearly enliven the jurisdiction of the Court to make an order against the solicitor: Flower & Hart v White Industries Ltd (1999) (No 2), 163 ALR 744.[17]

1. In Levick the solicitor, on behalf of a client, was presented with a creditor's petition by the Deputy Commissioner of Taxation. The petition was opposed on various constitutional grounds. However, counsel for the debtor at the hearing was unable to advance any coherent argument to support those grounds, and an order for costs was made against the solicitor.
2. In Steindl Nominees P/L v Laghaifar [2003] QCA 157 Davies JA (with whom Williams JA and Philippides J agreed) remarked at [24]:

I would prefer to say that it is one thing to present a case which is barely arguable (but arguable nevertheless) but most likely to fail; it is quite another to present a case which is plainly unarguable and ought to be so to the lawyer who presents it. In my opinion, with respect, it is improper for counsel to present, even on instructions, a case which he or she regards as bound to fail because, if he or she so regards it, he or she must also regard it as unarguable.

1. I bear in mind that Mr Jamieson is not, apparently, a lawyer. Nevertheless, like Ms Raschilla he should have known after 9 June (or could readily have discovered) that neither he nor she had authority to continue with the proceeding. He certainly knew it after 24 June, when evidence about the true position was presented by the respondent's lawyer. He also knew by the time of the second hearing, and conceded, that this Tribunal did not have jurisdiction to appoint a specialist adjudicator under the BCCMA.
2. Although not a lawyer himself, Mr Jamieson nonetheless accepted, and acted on, Ms Raschilla's instructions in the present proceedings, purportedly on Ralacom's behalf. As I mentioned earlier, s 103 of the QCAT Act does not discriminate between legally qualified and unqualified representatives. On that basis, in my view, it is appropriate to apply the same principles governing costs orders against lawyers to the present circumstances. Even if that is incorrect, the facts certainly suggest that Mr Jamieson would still be liable to a costs order as a non-party actively involved in the conduct of the proceedings.
3. On any view, it is evident that by continuing with a manifestly untenable action, his conduct unnecessarily disadvantaged the respondent by forcing it to incur costs pointlessly. It is also fairly characterised as an abuse of process. Once Mr Jamieson volunteered to act as Ms Raschilla's representative in those circumstances, and persisted with that representation, he exposed himself to an order which would compensate the respondent for costs unnecessarily incurred.
4. The respondent is seeking its costs on an indemnity basis and, it may be assumed, in full.
5. The watershed case for awarding costs on an indemnity basis is the judgment in Colgate-Palmolive Co v Cussons Pty Ltd[18]. Following a comprehensive review of the authorities, Sheppard J sets out a number of factors at 257 which may warrant the exercise of discretion, including: (i) the fact that proceedings were commenced or continued in wilful disregard of known facts; (ii) the making of allegations which ought never to have been made; (iii) the undue prolongation of a case by groundless contentions; (iv) evidence of particular misconduct that causes loss of time to the Court and to other parties; any (v) imprudent refusal of an offer to compromise. These propositions have been cited in recent cases.
6. Chesterman J (as his Honour then was) in Todrell Pty Ltd v Finch (No 2) [2007] QSC 386; [2008] 2 Qd R 95 at 96 [4] stated that "something irresponsible about the conduct of the losing party which exposed its opponent to costs which should, in fairness, be ordered on the indemnity basis'. His Honour was of the view that 'irresponsible' conduct includes commencing proceedings which cannot succeed because of a known legal impediment.
7. Mc Murdo J in Thiess Pty Ltd v FLSMIDTH Minerals Pty Ltd (No 2) [2010] QSC 120 at [4] remarked that whether the criterion is 'unreasonableness' or 'irresponsibility', there would need to be something about the facts and circumstances of the case, beyond the lack of merit evidenced in the outcome, that would justify an order of costs on an indemnity basis.
8. The circumstances of the plaintiff's case in Fick v Groves (No 2) [2010] QSC 182 bear resemblance to those here. Applegarth J, in awarding indemnity costs against the plaintiffs, found that they had persisted with a practically hopeless case that included claims which they knew were contrary to the facts; that they had continued with the proceedings even after receiving evidence that overwhelmingly contradicted their case; and that the persistence in conducting the action generated unnecessary (and substantial) costs for the respondent in resisting the claim. He awarded costs against the plaintiffs assessed on an indemnity basis from the point at which the plaintiffs became aware that they were persisting in a claim that lacked a proper foundation.
9. Again, I take into account that Ms Raschilla and Mr Jamieson do not have legal qualifications. For the reasons already explored, however, their conduct bordered on the inexplicable. Certainly, it resulted in the respondent incurring unnecessary costs. This is a case in which the applicants' initial application was misconceived and in one respect (the appointment of an adjudicator) futile and their persistence with the proceedings, especially after the order of 9 June, was unreasonable and irresponsible, and qualifies as conduct warranting an order on an indemnity basis.
10. The respondent's solicitor has sworn an affidavit assessing his client's costs, on that basis, at $9,168.75 for costs and $2,938.80 for outlays, including counsel's fees. This tribunal has power to fix costs and the QCAT Act exhorts it to do so, if possible: s 107(1). The solicitor's affidavit is persuasive that the sums claimed reflect work necessary to address the application against his client, and the degree of complexity involved.
11. It should be ordered that Ms Raschilla and Mr Jamieson pay the respondent's costs and outlays fixed at $13,107.55.

[1] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments [2010] QCAT 334

[2] Herron v The Attorney General for New South Wales (1987) 8 NSWLR 601 at 613 (per Kirby P)

[3] A phrase used in s 48 of the QCAT Act, in a provision giving the tribunal power to dismiss or strike out proceedings

[4] See generally GDK Financial Solutions Pty Ltd and Others v GDK Financial Solutions Pty Ltd and Others [2006] FCA 1415; (2006) 236 ALR 699

[5] Affidavit of Yvonne Raschilla sworn 28 June 2010, p 5

[6] [2005] QCA 111

[9] Knight v FP Special Assets Limited (1992) 174 CLR 178 at 192-193

[10] Babsari P/L v Wong & Ors [2000] QSC 380

[11] (2003) FCAFC 5; BC200300185

[12] Rushton (Qld) Pty Ltd v Rushton (NSW) Pty Ltd [2004] QSC 047

[13] See Re Talk Finance and Insurance Services Pty Ltd [1994] 2 Qd R 558

[14] Deputy Commissioner of Taxation v Levick [1999] FCA 1580 at [11] per Hill J

[15] [2002] QCA 544

[16] Deputy Commissioner of Taxation v Levick, supra_._

[18] [1993] FCA 536; (1993) 118 ALR 248