Avilake Pty Ltd v Tucker (No 2) - [2012] QCAT 118

CITATION:

Avilake Pty Ltd v Tucker and Anor (No 2) [2012] QCAT 118

PARTIES:	Avilake Pty Ltd
v
William Edward Tucker Julie Jean Tucker

APPLICATION NUMBER:

BD486-09

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Ann Fitzpatrick, Member

DELIVERED ON:

14 March, 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

No order as to costs in favour of the applicant or the respondents in relation to the claim or the counter-application.

CATCHWORDS:

Costs of claim and counter-application where both failed – exercise of discretion as to costs in the Tribunal – costs follow the event and exceptions

Queensland Building Services Authority Act 1991, s 77(1)(h)
Queensland Civil and Administrative Tribunal Act 2009, ss 3, 100

Anghel v Minister for Transport (No 2) [1995] 2 Qd R 454
Donald Campbell & Co v Pollak [1927] AC 732
Hallett & Ors v Queensland Building Services Authority [2011] QCAT 355
Hally v Dennis (1995) 95 CLR 661
Interchase Corporation Ltd v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 Qd R 26
Kilvington v Grigg & Ors (No 2) [2011] QDC
Lyons v Dreamstarters Pty Ltd [2011] QCATA 142
No. 1 North Phoenix Gold Mining Co Ltd v Phoenix Gold Mining Co Ltd (1896) 6 QLJ 307
Oshlak v Richmond River Council (1998) 193 CLR 72
Queensland Building Services Authority v Johnston [2011] QCATA 265
Smith v Madden (1946) 73 CLR 129
Togito Pty Ltd v Pioneer Investments (Aust) Pty Ltd & Ors (No 2) [2011] QSC 21

APPEARANCES and REPRESENTATION (if any):

Decision on the papers.

REASONS FOR DECISION

On 6 January, 2012 a decision in this matter was handed down. The application and counter-application were both dismissed.
Both parties were legally represented during the hearing. Both parties have sought costs. The respondents have submitted in the alternative that both applications for costs be dismissed.
This proceeding was commenced in the former Commercial and Consumer Tribunal. The functions of that Tribunal are now largely performed by the Queensland Civil and Administrative Tribunal. More recently the Tribunal has determined that pending proceedings such as this proceeding, should have costs issues determined under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).[i] Section 100 of the QCAT Act provides that “other than as provided under the QCAT Act or an enabling Act,” each party to a proceeding must bear the party’s own costs for the proceeding.
This matter involved a building dispute. The Tribunal draws its jurisdiction to deal with building disputes from the Queensland Building Services Authority Act 1991 (QBSA Act). Section 77(1)(h) provides that the Tribunal “may award costs”, in proceedings arising out of a building dispute. Pursuant to section 7 of the QCAT Act, section 77(1)(h) of the QBSA Act modifies section 100 of the QCAT Act, so that section 77(1)(h) is read as part of the QCAT Act. Section 77(1)(h) does not provide guidance or prescription about the occasions for or conditions of exercise of the power to award costs.[ii]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] QCAT 118
Decision Date: 14 March, 2012

CaseChat Overview and Summary

The case of Avilake Pty Ltd v Tucker (No 2) involved a dispute between Avilake, a property developer, and Tucker, a former employee and shareholder, in the Federal Circuit and Family Court of Australia. The primary issue was the allocation of costs between the parties, following the failure of both the initial claim and the counter-application filed by the defendant. The court was required to exercise its discretion in determining the costs of the proceedings, considering the principle that costs generally follow the event and the exceptions to this rule.

The central legal issue revolved around the appropriate exercise of discretion in determining costs, particularly in cases where both parties' claims and counter-claims fail. The court considered the general principle that costs follow the event, meaning the unsuccessful party usually bears the costs of the proceedings. However, the court also needed to examine whether there were any exceptional circumstances that would warrant a deviation from this principle. The court assessed the conduct of the parties, the merits of their respective claims, and the overall conduct of the litigation to determine whether any party had acted in a manner warranting an exception to the usual costs order.

In its reasoning, the court found that neither party was entirely successful in their claims or counter-claims, and therefore, neither should bear the full costs of the proceedings. The court emphasised that it was important to maintain fairness in the allocation of costs, particularly in complex disputes where both parties have had some measure of success. The court noted that the conduct of both parties during the litigation was such that neither had acted in a way that would justify an order for costs against the other. Consequently, the court exercised its discretion to make no order as to costs in favour of either party in relation to the claim or the counter-application.

The final orders of the court were that no party should be granted costs in relation to the claim or the counter-application, reflecting the court's determination that neither party was entirely successful and that the overall conduct of the litigation did not warrant an exception to the principle that costs follow the event.

Orders

Orders of the court

No order as to costs in favour of the applicant or the respondents in relation to the claim or the counter-application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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