Benn v Myles

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CITATION: Benn v Myles & Anor [2012] QCAT 399
PARTIES: Jason Benn
(Applicant)
v
Anthony Myles
AJ Myles & Co Pty Ltd ACN 111 244 823
(Respondents)
APPLICATION NUMBER:   BD492-09
MATTER TYPE: Building matters
HEARING DATE: On the papers
HEARD AT: Brisbane
DECISION OF: Joanne Browne, Member
DELIVERED ON: 3 September 2012
DELIVERED AT: Brisbane

ORDERS MADE:     

1.     That the Respondent, Mr Anthony Myles pay the Applicant’s, Mr Jason Benn costs of and incidental to the proceedings, including reserved costs, on a standard basis to be assessed on the District Court scale of costs.

2.     The Applicant, Mr Jason Benn shall deliver to the Respondent, Mr Anthony Myles an itemised claim for costs referring to the relevant items contained in the District Court scale of costs.

3.     If the Applicant and Respondent are unable to agree on an amount of the Applicant’s costs within 14 days of the delivery of an itemised claim for costs, the costs shall be assessed by Hickey & Garrett, Legal Costs Assessors, Level 21, 141 Queen Street, Brisbane 4000.

4.     The Respondent, Mr Anthony Myles shall pay the Applicant’s, Mr Jason Benn costs (as agreed or assessed) within 14 days of such agreement or assessment.

CATCHWORDS:

COSTS – where party successful – whether discretion to award costs – assessment of costs

Queensland Civil and Administrative Tribunal Act 2009, s 100

Grasso & Anor v CMG Consulting Engineers Pty Ltd (No 2) [2011] QCATA 326 cited
Oshlack v Richmond River Council (1998) 193 CLR 72 cited
Paradise Island Apartments (No 2) [2010] QCAT 412 cited
Queensland Building Services Authority v Johnston [2011] QCATA 265 applied
Ralacom Pty Ltd v Body Corporate for
Tamawood Ltd & Anor v Paans [2005] QCA 111 cited

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

  1. This building dispute relates to proceedings commenced in November 2009 by Mr Benn in the former Commercial and Consumer Tribunal (CCT) against Mr Myles and AJ Myles & Co Pty Ltd (the Respondents).

  2. The former CCT was abolished with the introduction of QCAT on 1 December 2009.

  1. The dispute proceeded to hearing before QCAT (in Cairns) and final orders were made by the Tribunal on 18 November 2011 – Mr Myles was ordered to pay Mr Benn the amount of $140,340.72. 

  1. Mr Benn now seeks orders from QCAT that the Respondents pay his costs of and incidental to the application (building dispute) to be agreed or if not agreed as assessed by a duly accredited costs assessor appointed by the Tribunal.

  1. Mr Benn’s legal representatives have filed (on his behalf) written submissions in relation to the application for costs.  Mr Myles has not filed written submissions notwithstanding directions being made on 20 December 2011 and 26 April 2012 in relation to the filing and exchange of written submissions in response to the application for costs.[1]  The Tribunal is satisfied that Mr…

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Details
Case
[2012] QCAT 399
Decision Date

CaseChat Overview and Summary

The matter before the Court involved Mr Jason Benn, the applicant, and Mr Anthony Myles, the respondent. The applicant sought an order for the costs of the proceedings, as well as reserved costs, against the respondent. The case was heard in the Queensland District Court.

The primary legal issue for the Court to determine was whether it had the discretion to award costs to the successful party, in this case, the applicant. Additionally, the Court had to assess the costs of the proceedings according to the District Court scale of costs.

In determining the matter, the Court found that it had the discretion to award costs to the successful party, in this case, the applicant. The Court held that the costs of the proceedings, as well as reserved costs, should be awarded to the applicant on a standard basis and assessed according to the District Court scale of costs. The Court further ordered that the applicant deliver an itemised claim for costs to the respondent and that if the parties could not agree on the amount of costs within 14 days, the costs would be assessed by Hickey & Garrett, Legal Costs Assessors.

The Court's final orders were that the respondent pay the applicant's costs of and incidental to the proceedings, including reserved costs, on a standard basis to be assessed on the District Court scale of costs. The applicant was also ordered to deliver an itemised claim for costs to the respondent, and if the parties could not agree on the amount of costs within 14 days, the costs would be assessed by Hickey & Garrett, Legal Costs Assessors. The respondent was further ordered to pay the applicant's costs (as agreed or assessed) within 14 days of such agreement or assessment.

Orders

Orders of the court

1. That the Respondent, Mr Anthony Myles pay the Applicant’s, Mr Jason Benn costs of and incidental to the proceedings, including reserved costs, on a standard basis to be assessed on the District Court scale of costs.

2. The Applicant, Mr Jason Benn shall deliver to the Respondent, Mr Anthony Myles an itemised claim for costs referring to the relevant items contained in the District Court scale of costs.

3. If the Applicant and Respondent are unable to agree on an amount of the Applicant’s costs within 14 days of the delivery of an itemised claim for costs, the costs shall be assessed by Hickey & Garrett, Legal Costs Assessors, Level 21, 141 Queen Street, Brisbane 4000.

4. The Respondent, Mr Anthony Myles shall pay the Applicant’s, Mr Jason Benn costs (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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