A L Builders Pty Ltd v. Fatseas (No. 2)

CITATION: A L Builders Pty Ltd v Fatseas (No 2) [2014] QCATA 319

PARTIES:	A L Builders Pty Ltd (Applicant/Appellant)
v
Nicholas Fatseas Tricia Fatseas (Respondents)

APPLICATION NUMBER: APL156-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Oliver
Member Howe

DELIVERED ON: 29 October 2014

DELIVERED AT: Brisbane

ORDERS MADE: The applicant/appellant pay the respondents costs of the appeal and further application for miscellaneous matters filed 28 August 2014 as agreed or failing agreement as assessed by Hickey and Garrett, costs assessors, on a standard basis by reference to the Supreme Court of Queensland Scale of Costs, and the assessment be paid within 28 days of delivery of the assessment of costs to the applicant/appellant.

CATCHWORDS: Costs – building dispute – award of costs outside the usual rule of the Tribunal that each party bear their own costs – the general rule that costs follow the event applied – the Member’s decision on reserved costs left undisturbed – appropriate scale of costs

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. This application involves an application for costs by the respondent consequent on the failure of an appeal brought by the applicant against the decision of a Member refusing to order a trial of preliminary issues prior to the determination of the substantive proceeding at final hearing.

2. The appeal was determined on the papers and the decision dismissing the appeal was delivered on 9 July 2014.

3. The successful respondents now seek their costs of the initial application before the Member, the appeal and this application for an order for costs on a standard basis by reference to the Supreme Court of Queensland Scale of Costs.  Both parties have made submissions.

4. This matter involves a complex building dispute. Section 77 of the Queensland Building and Construction Commission Act 1991 (QBCC Act) displaces the usual order in Tribunal proceedings that each party bear their own costs.[1]  Subject to exercise of discretion, the general rule about costs is thereby incorporated into building disputes before the Tribunal.  The general rule is that a successful party is entitled to recoup its costs against the other party.  That is, the costs should follow the event.  That might not be appropriate in some circumstances, such as the delinquent behaviour of a winning party, or the pyrrhic nature of the win.[2] 

   [1]Lyons v Dreamstarter Pty Ltd [2012] QCATA 71.

   [2]The general principle finds expression in section 689(1) of the Uniform Civil Procedure Rules 1999 (UCPR) as those rules apply to the Supreme, District and Magistrates Courts. The QCAT Act does not incorporate the UCPR but the law associated with Chapter 17A of the UCPR is of assistance in determining when and what awards of costs should be made in the interests of justice: QCAT Act s 102(1).

5. The applicant submits that no cost order should be made.  The submission…