Ausipile Pty Ltd v Bothar Boring and Tunnelling (Australia) Pty Ltd

[2022] QCA 115

SUPREME COURT OF QUEENSLAND

CITATION:

Ausipile Pty Ltd v Bothar Boring and Tunnelling (Australia) Pty Ltd [2022] QCA 115

PARTIES:

AUSIPILE PTY LTD
ACN 101 402 322
(appellant)
v
BOTHAR BORING AND TUNNELLING (AUSTRALIA) PTY LTD
ACN 622 309 264
(respondent)

FILE NO/S:

Appeal No 3642 of 2021
SC No 8953 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane – [2021] QSC 39 (Wilson J)

DELIVERED ON:

24 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Fraser and Morrison JJA and North J

ORDER:

1.   Order that the respondent pay the appellant $235,055.33 interest on the judgment sum of $761,296.75.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellant was successful on appeal – where the parties made written submissions in relation to costs – where the appellant sought a further order as to costs, confined to the issue regarding the calculation of interest – where the appellant contended that because no agreement was reached as to the right calculation, it should get the costs of that issue on the indemnity basis – where the resolution of this issue is simply part of the appeal – where nothing in the conduct of the respondent in respect of this discrete issue would warrant the further imposition of an assessment on the indemnity basis – whether indemnity costs should be ordered on the issue regarding the calculation of interest

Queensland Building and Construction Commission Act 1991 (Qld), s 67

Ausipile Pty Ltd v Bothar Boring and Tunnelling (Australia) Pty Ltd[2021] QCA 223, related

COUNSEL:

M H Hindman QC, with M J Steele, for the appellant
T P Sullivan QC, with J Mitchenson, for the respondent

SOLICITORS:

McInnes Wilson Lawyers for the appellant
Thomson Geer Lawyers for the respondent

1. FRASER JA:  I agree with Morrison JA.

2. MORRISON JA: On 15 October 2021 the Court allowed the appellant’s appeal from a decision made in the trial division, and it made an order under s 78(2)(a) of the Building Industry Fairness (Security of Payment) Act 2017 (Qld), that judgment be entered for the appellant against the respondent in the amount of $761,296.75.[1]

   [1]Ausipile Pty Ltd v Bothar Boring and Tunnelling (Australia) Pty Ltd [2021] QCA 223.

3. The Court also ordered that the parties make submissions on the question of interest payable on the judgment sum.  Those submissions have been made, and the parties are agreed on the following position:

   (a)interest is payable from the due date of payment, 23 June 2019;

   (b)interest is payable at the rate specified in s 67P of the Queensland Building and Construction Commission Act 1991 (Qld); and

   (c)the calculation of interest should be as set out in Annexure A to the appellant’s submissions dated 28 October 2021.

4. Schedule A calculated the interest through to 31 December 2021 in the sum of $198,371.83.

5. Using the daily interest component from that Schedule ($209.62) the additional days through to 24 June 2022 (175 days) totals another $36,683.50 bringing the total for the interest calculation to $235,055.33.

6. The appellant seeks a further order as to costs, confined to the issue regarding the calculation of interest.  It contends that because no agreement was reached as to the right calculation, it should get the costs of that issue on the indemnity basis.

7. In my view, that contention should be rejected.  When the Court made the orders on 15 October 2021, it included an order that the respondent pay the appellant’s costs of and incidental to the appeal.  The resolution of this issue is simply part of the appeal.  Nothing in the conduct of the respondent in respect of this discrete issue would warrant the further imposition of an assessment on the indemnity basis.

8. The order I propose is as follows:

   1.Order that the respondent pay the appellant $235,055.33 interest on the judgment sum of $761,296.75.

9. NORTH J:  I agree with the reasons of Morrison JA and the order proposed.