| 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) Anghel v Minister for Transport (No 2) [1995] 2 Qd R 454 |
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]
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- Case
- [2012] QCAT 118
- Decision Date
CaseChat Overview and Summary
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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