Bartlett v Contrast Constructions Pty Ltd - [2016] QCATA 199

CITATION:

Bartlett v Contrast Constructions Pty Ltd [2016] QCATA 199

PARTIES:	Brett Andrew Bartlett (Applicant/Appellant)
v
Contrast Constructions Pty Ltd (Respondent)

APPLICATION NUMBER:

APL144-15

MATTER TYPE:

Appeals

HEARING DATE:

On the Papers

HEARD AT:

On the Papers

DECISION OF:

Senior Member O’Callaghan
Member Paratz

DELIVERED ON:

14 December 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

Leave to Appeal is granted.

The Appeal is allowed.

3. Contrast Constructions Pty Ltd is to pay the costs of Brett Andrew Bartlett in BD469-08 on the District Court scale on a standard basis.

4. Brett Andrew Bartlett shall deliver to Contrast Constructions Pty Ltd, a realistic estimate of the costs claimed, including an explanation of the basis of the estimate, sufficiently detailed to facilitate some broad examination of its reasonableness, having regard to the District Court scale of costs.

5. If Brett Andrew Bartlett and Contrast Constructions Pty Ltd are unable to agree on an amount of the costs within 14 days of the delivery of the estimate of costs, the costs shall be assessed by an assessor to be nominated by the Registrar upon request by either party.

6. Contrast Constructions Pty Ltd shall pay the costs of Brett Andrew Bartlett (as agreed or assessed) within 14 days of such agreement or assessment.

CATCHWORDS:

APPEALS – PROCEDURE- QUEENSLAND –POWERS OF COURT - COSTS

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

Where the Court of Appeal allowed liquidated damages in a building claim – Where the Member had found that each party should bear their own costs – Where the decision of the Court of Appeal significantly altered the balance of success in the action between the parties - Where the matter was a complex building dispute –Where both parties were represented by Solicitors and Counsel - Whether the Tribunal should exercise its discretion to award costs

Tamawood Pty Ltd & Anor v Paans [2005] QCA 111
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
Contrast Constructions Pty Ltd v Bartlett [2014] QCATA 262
Contrast Constructions Pty Ltd v Bartlett [2015] QCAT 072
Bartlett v Contrast Constructions Pty Ltd [2016] QCA 119
Ryan v Worthington Simmons Builders [2016] QCATA 116

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Smith Leonard Fahey Lawyers

RESPONDENT:

Mills Oakley Lawyers

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

REASONS FOR DECISION

Senior Member O’Callaghan

In this matter the Appeal Tribunal consisted of Mr. Paratz, QCAT Member and me. I have had the benefit of reading his reasons in draft. I agree with his reasons, and his conclusions, and the order he proposes.

Mr. Paratz

This is an Appeal as to costs. It is part of a long history of protracted proceedings in relation to the building of a residential house at St. Lucia in Brisbane between 2006 and 2009. The owner was Mr Bartlett, and Contrast Constructions Pty Ltd (‘Contrast’) was the builder.

The…

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 Bartlett v Contrast Constructions Pty Ltd

Details

AGLC: Bartlett v Contrast Constructions Pty Ltd [2016] QCATA 199
Case: [2016] QCATA 199
Decision Date: 14 December 2016

CaseChat Overview and Summary

In the case of Bartlett v Contrast Constructions Pty Ltd, the Queensland Court of Appeal was asked to review a decision made by the Queensland Civil and Administrative Tribunal (QCAT) regarding a building dispute. The dispute originated from a construction contract where the builder, Contrast Constructions Pty Ltd, failed to meet the agreed completion date, leading to a claim by the homeowner, Brett Andrew Bartlett, for liquidated damages. QCAT had found that each party should bear their own costs. The Court of Appeal allowed the claim for liquidated damages, which significantly altered the balance of success in the action. This case thus presented the legal issue of whether the Tribunal should exercise its discretion to award costs given the changed circumstances following the Court of Appeal's decision.

The central legal issue was whether the Tribunal should alter its initial decision on costs in light of the Court of Appeal's ruling, which had significantly changed the balance of success. The Court of Appeal considered the extent to which the outcome of the appeal had impacted the costs incurred by the parties. Given that the Court of Appeal had altered the balance of success, the Tribunal needed to reassess the appropriateness of its initial costs decision. The Court found that the Tribunal should indeed exercise its discretion to award costs, taking into account the new circumstances and the changed balance of success.

In its ruling, the Court of Appeal determined that Contrast Constructions Pty Ltd should pay the costs of Brett Andrew Bartlett. The Court considered the changed balance of success and the need for a realistic estimate of the costs claimed. The Court ordered that Bartlett should deliver a detailed estimate of his costs to Contrast Constructions Pty Ltd, allowing for some broad examination of its reasonableness. If the parties could not agree on the costs within 14 days, an assessor would be appointed to determine the amount. Contrast Constructions Pty Ltd was then required to pay the agreed or assessed costs within 14 days of the determination. This decision highlights the importance of reassessing costs in light of significant changes in the balance of success, as determined by appellate courts.

Orders

Orders of the court

1. Leave to Appeal is granted.

1. The Appeal is allowed.

3. Contrast Constructions Pty Ltd is to pay the costs of Brett Andrew Bartlett in BD469-08 on the District Court scale on a standard basis.

6. Contrast Constructions Pty Ltd shall pay the costs of Brett Andrew Bartlett (as agreed or assessed) within 14 days of such agreement or assessment.

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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