Belmed Pty Ltd v Nichols Constructions Pty Ltd - [2012] QCAT 452

CITATION:

Belmed Pty Ltd v Nichols Constructions Pty Ltd [2012] QCAT 452

PARTIES:	Belmed Pty Ltd trading as Belmont Medical Centre (Applicant/Appellant)
v
Nichols Constructions Pty Ltd (Respondent)

APPLICATION NUMBER:

RSL086-11

MATTER TYPE:

Retail shop leases matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Michelle Howard, Acting Senior Member

DELIVERED ON:

13 September 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for costs of Nichols Constructions Pty Ltd is dismissed.

CATCHWORDS:

COSTS APPLICATION – where application by respondent for dismissal or striking out refused – where applicant directed to file amended notice of dispute – where respondent seeks legal costs of dismissal application and previous steps in the proceeding – where leave for legal representation granted at same time application for dismissal refused

Queensland Civil and Administrative Tribunal Act 2009, ss 47, 100, 102

APPEARANCES and REPRESENTATION (if any):

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

On 28 June 2012, I made orders dismissing an application filed by Nichols Constructions Pty Ltd which sought the dismissal or striking out of a notice of dispute filed by Belmont Medical Pty Ltd. I also made orders allowing Belmont Medical Centre to file and serve an amended application. As my reasons for decision discuss, Belmont Medical Centre acknowledged that the actual lessee was an associated company, Belmed Pty Ltd, as disclosed in the documentation filed with their original application. The originally named applicant was the trading entity. Belmed was to be named as the applicant in the amended application.
On the same day, I made orders on another application filed by Nichols Constructions granting leave to both parties to be legally represented. Nichols Constructions is legally represented.
At a directions hearing on 17 July 2012, Nichols Constructions indicated that it wished to make a costs application. I made directions in relation to that application and other matters. The directions of 17 July 2012 provide for the filing of any application for costs and submissions by Nichols Constructions; Belmed’s response to the costs application; the hearing of that application for costs on the papers; for Nichols Constructions to file a response to the amended application of Belmed; for Belmed to file all of the witness statements it relies upon; for Nichols Constructions to file all witness statements it relies upon; for a further directions hearing on 23 October 2012; a further compulsory conference on 8 November 2012; and a two day hearing on 13 and 14 December 2012.
For completeness, I note that a further directions hearing was held on 7 August 2012. No directions were made on that date.
Written submissions have been received from both parties regarding the application for costs. A separate application for costs was not filed.

The parties’ submissions

Nichols Constructions seeks a costs order pursuant to s 47 for its costs of and incidental to the proceedings brought against it by Belmont Medical…

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 452
Decision Date: 13 September 2012

CaseChat Overview and Summary

The case between Belmed Pty Ltd and Nichols Constructions Pty Ltd involved a dispute over costs in a construction project. The respondent, Nichols Constructions, sought to have the application for dismissal or striking out of the dispute refused and also applied for the legal costs associated with the dismissal application and prior steps in the proceeding. The applicant, Belmed Pty Ltd, directed the respondent to file an amended notice of dispute. The legal issues that arose from this application were whether the respondent's application for dismissal or striking out should be dismissed and if the respondent was entitled to the legal costs it sought.

The court considered the application for dismissal or striking out and found that the respondent's application should be dismissed. However, the court found that the respondent was not entitled to the legal costs it sought as it was not satisfied that the application for dismissal or striking out was frivolous or vexatious. The court found that the respondent had not adequately addressed the issues raised by the applicant, and therefore, the application for costs was dismissed. At the same time, the court granted the respondent leave for legal representation.

The court's decision was based on the principle that legal costs should only be awarded in exceptional circumstances, and the respondent had not demonstrated that the application for dismissal or striking out was frivolous or vexatious. The court found that the respondent's application was not without merit and that the issues raised by the applicant were valid. The court also found that the respondent had not acted unreasonably in pursuing the application for dismissal or striking out.

The final order of the court was that the application for costs by the respondent was dismissed. The court also granted the respondent leave for legal representation at the same time it refused the application for dismissal or striking out. The court found that the respondent had not demonstrated that the application for dismissal or striking out was frivolous or vexatious, and therefore, it was not entitled to the legal costs it sought. The court's decision was based on the principle that legal costs should only be awarded in exceptional circumstances, and the respondent had not met that threshold.

Orders

Orders of the court

1. The application for costs of Nichols Constructions Pty Ltd is dismissed.

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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