Avis v Mark Bain Constructions Pty Ltd [No 2] - [2011] QSC 151

SUPREME COURT OF QUEENSLAND

CITATION:

Avis & Anor v Mark Bain Constructions Pty Ltd [No 2] [2011] QSC 151

PARTIES:

BS2488 of 2007
CAROL LYNETTE AVIS
(plaintiff)
v
MARK BAIN CONSTRUCTIONS PTY LTD
ACN 010 846 385
(defendant)

BS2491 of 2007
BARNSCAPE PTY LTD
ACN 077 636 367
(plaintiff)
v
MARK BAIN CONSTRUCTIONS PTY LTD
ACN 010 846 385
(defendant)

FILE NO/S:

SC No 2488 of 2007
SC No 2491 of 2007

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 June 2011

DELIVERED AT:

Brisbane

HEARING DATES:

21 April 2011
12, 16 May 2011

JUDGE:

Atkinson J

ORDERS:

The first defendant in BS2488 of 2007 pay:

(1) the plaintiff the sum of $283,917 as compensation under s 82 of the Trade Practices Act 1974 (Cth);

(2)       the plaintiff the sum of $185,471.70 in interest;

(3)       the plaintiff’s costs of the proceedings to be            assessed on the standard basis save that the            plaintiff is to pay the first defendant’s costs of the            application to amend heard on 16 April 2010, the            costs of the hearings on 31 May 2010, 1 June 2010            and 3 June 2010, including the first defendant’s            costs of obtaining the further expert report            ordered on 16 April 2010.

The first defendant in BS2491 of 2007 pay:

(1) the plaintiff the sum of $216,483 as compensation under s 82 of the Trade Practices Act 1974 (Cth);

(2)       the plaintiff the sum of $141,419.75 in interest;

(3)       the plaintiff’s costs of the proceedings to be            assessed on the standard basis save that the            plaintiff is to pay the first defendant’s costs of the            application to amend heard on 16 April 2010, the            costs of the hearings on 31 May 2010, 1 June 2010            and 3 June 2010, including the first defendant’s            costs of obtaining the further expert report            ordered on 16 April 2010.

CATCHWORDS:

PROCEDURE – COSTS – RECOVERY OF COSTS – where the plaintiffs were awarded compensation pursuant to s 82 of the Trade Practices Act 1974 (Cth) – whether the first defendant should pay the plaintiffs’ costs of the proceedings

PROCEDURE – JUDGMENTS AND ORDERS – INTEREST ON JUDGMENTS – RATE – where the plaintiffs submitted three alternative methods by which the interest calculation could be performed – on what basis interest should be calculated

Supreme Court Act 1995 (Qld), s 47(1)
Trade Practices Act 1974 (Cth), s 82

Uniform Civil Procedure Rules 1999 (Qld), r 681

COUNSEL:

S Monks for the plaintiff in both matters
A Collins for the first defendant in both matters

SOLICITORS:

Boyd Legal for the plaintiff in both matters
Holland & Holland for the first defendant in both matters

On 11 April 2011, reasons for judgment were handed down in these matters ordering the first defendant in BS 2488 of 2007 to pay the plaintiff, Carol Lynette Avis, the sum of $283,917 as compensation under s 82 of the Trade Practices Act 1974 (Cth) (“TPA”) and the first defendant in BS 2491 of 2007…

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.

Continue reading Avis v Mark Bain Constructions Pty Ltd [No 2]

Details

AGLC: Avis v Mark Bain Constructions Pty Ltd [No 2] [2011] QSC 151
Case: [2011] QSC 151
Decision Date: 6 June 2011

CaseChat Overview and Summary

Avis sought compensation from Mark Bain Constructions Pty Ltd under section 82 of the Trade Practices Act 1974 (Cth) in two separate proceedings, BS2488 of 2007 and BS2491 of 2007. The dispute centred on whether Mark Bain Constructions Pty Ltd should be liable for the costs incurred by Avis during the proceedings, as well as the calculation of interest on the judgments. The Federal Court was tasked with resolving these issues.

The court needed to determine the appropriate basis for calculating interest on the judgments, with Avis proposing three alternative methods. Additionally, the court had to decide whether Mark Bain Constructions Pty Ltd should bear the costs of Avis's proceedings. The Federal Court found that Mark Bain Constructions Pty Ltd was liable for the costs of the proceedings, with certain exceptions. Regarding the calculation of interest, the court opted for the third method proposed by Avis, which involved using the Commonwealth Bank’s standard variable mortgage rate as the basis for calculating interest.

The court ruled that Mark Bain Constructions Pty Ltd should pay Avis compensation, along with interest calculated according to the specified method. The costs of the proceedings were to be assessed on the standard basis, with some exceptions. Specifically, Avis was required to cover the costs of an application to amend and certain hearing costs, including those related to obtaining an expert report. The final orders required Mark Bain Constructions Pty Ltd to pay compensation and interest to Avis, with detailed provisions on the allocation of costs between the parties.

Orders

Orders of the court

The first defendant in BS2488 of 2007 pay:

(1) the plaintiff the sum of $283,917 as compensation under s 82 of the Trade Practices Act 1974 (Cth);

(2) the plaintiff the sum of $185,471.70 in interest;

(3) the plaintiff’s costs of the proceedings to be assessed on the standard basis save that the plaintiff is to pay the first defendant’s costs of the application to amend heard on 16 April 2010, the costs of the hearings on 31 May 2010, 1 June 2010 and 3 June 2010, including the first defendant’s costs of obtaining the further expert report ordered on 16 April 2010.

The first defendant in BS2491 of 2007 pay:

(1) the plaintiff the sum of $216,483 as compensation under s 82 of the Trade Practices Act 1974 (Cth);

(2) the plaintiff the sum of $141,419.75 in interest;

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Avis & Anor v Mark Bain Constructions Pty Ltd [No 2] [2011] QSC 151
PARTIES:	BS2488 of 2007 CAROL LYNETTE AVIS (plaintiff) v MARK BAIN CONSTRUCTIONS PTY LTD ACN 010 846 385 (defendant) BS2491 of 2007 BARNSCAPE PTY LTD ACN 077 636 367 (plaintiff) v MARK BAIN CONSTRUCTIONS PTY LTD ACN 010 846 385 (defendant)
FILE NO/S:	SC No 2488 of 2007 SC No 2491 of 2007
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	6 June 2011
DELIVERED AT:	Brisbane
HEARING DATES:	21 April 2011 12, 16 May 2011
JUDGE:	Atkinson J
ORDERS:	The first defendant in BS2488 of 2007 pay: *(1) the plaintiff the sum of $283,917 as compensation under s 82 of the Trade Practices Act* 1974 (Cth); (2) the plaintiff the sum of $185,471.70 in interest; (3) the plaintiff’s costs of the proceedings to be assessed on the standard basis save that the plaintiff is to pay the first defendant’s costs of the application to amend heard on 16 April 2010, the costs of the hearings on 31 May 2010, 1 June 2010 and 3 June 2010, including the first defendant’s costs of obtaining the further expert report ordered on 16 April 2010. The first defendant in BS2491 of 2007 pay: (1) the plaintiff the sum of $216,483 as compensation under s 82 of the Trade Practices Act 1974 (Cth); (2) the plaintiff the sum of $141,419.75 in interest;** (3) the plaintiff’s costs of the proceedings to be assessed on the standard basis save that the plaintiff is to pay the first defendant’s costs of the application to amend heard on 16 April 2010, the costs of the hearings on 31 May 2010, 1 June 2010 and 3 June 2010, including the first defendant’s costs of obtaining the further expert report ordered on 16 April 2010.
CATCHWORDS:	PROCEDURE – COSTS – RECOVERY OF COSTS – where the plaintiffs were awarded compensation pursuant to s 82 of the Trade Practices Act 1974 (Cth) – whether the first defendant should pay the plaintiffs’ costs of the proceedings PROCEDURE – JUDGMENTS AND ORDERS – INTEREST ON JUDGMENTS – RATE – where the plaintiffs submitted three alternative methods by which the interest calculation could be performed – on what basis interest should be calculated Supreme Court Act 1995 (Qld), s 47(1) Trade Practices Act 1974 (Cth), s 82 Uniform Civil Procedure Rules 1999 (Qld), r 681
COUNSEL:	S Monks for the plaintiff in both matters A Collins for the first defendant in both matters
SOLICITORS:	Boyd Legal for the plaintiff in both matters Holland & Holland for the first defendant in both matters