Brown v Osterman - [2023] QCAT 314

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Brown v Osterman and Anor [2023] QCAT 314

PARTIES:

MATTHEW BROWN

(applicant)

v

SOREN JOHN OSTERMAN

(respondent)

REBECCAOLSZAK OSTERMAN

(respondent)

APPLICATION NO/S:

BDL302-19

MATTER TYPE:

Building matters

DELIVERED ON:

17 August 2023

HEARING DATE:

11 May 2023

HEARD AT:

Brisbane

DECISION OF:

Member Bertelsen

ORDERS:

Each party bears their own costs of the proceeding.

CATCHWORDS:

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS-COSTS - GENERAL MATTERS- POWER TO AWARD GENERALLY- whether the interests of justice require an order for costs to be made

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 28, S29

Herron v The Attorney General for New South Wales (1987) 8 NSWLR 601

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No2) [2010] QCAT 412
Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364

Cowen v Queensland Building and Construction Commission [2021] QCATA103

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

On 22 March 2023 the Tribunal ordered the Respondents Soren John Osterman and Rebecca Olszak Osterman (the Osterman’s) pay the Applicant Matthew Brown (Mr Brown) the sum of $189,782.47 within twenty-eight days. With both parties requesting to be heard on the issue of costs they were ordered to file and give to the other party submissions on costs within twenty-eight days. Thereafter the Tribunal would determine the question of costs.
The starting point with respect to costs in the Queensland Civil and Administrative Tribunal (QCAT) is spelt out in section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) which says:

Each party usually bears own costs

Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100.

The presumption may be displaced if the Tribunal considers it is in the interests of justice to order a party to pay all or part of the costs of another party.[2]
[2]Ibid 102(1).
The phrase “in the interests of justice “is not defined in the Act but is to be construed according to its ordinary and plain meaning which confers a broad discretionary power on the decision maker.[3]
[3]Herron v The Attorney General for New South Wales (1987) 8 NSWLR 601 at 603 (per Kirby P).
In determining whether it is in the interests of justice to award costs against another party the Tribunal may have regard to whether a party has acted in a way that unnecessarily disadvantages another party, the nature and complexity of the dispute, the relative strengths of the claims made by each of the parties, the financial circumstances of the parties and anything else the Tribunal considers relevant.[4]
[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102(3)
In an often quoted passage from Ralacom Pty Ltd Justice Wilson held…

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 Brown v Osterman

Details

AGLC: Brown v Osterman [2023] QCAT 314
Case: [2023] QCAT 314
Decision Date

CaseChat Overview and Summary

In the matter of Brown v Osterman and Anor, the applicant, Matthew Brown, sought costs from the respondents, Soren John Osterman and Rebecca Olszak Osterman. This application followed a decision in favour of Mr Brown, who was awarded $189,782.47 by the Tribunal. The respondents argued against the costs order, and both parties were ordered to file submissions on the matter. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining whether it was in the interests of justice to order the respondents to pay Mr Brown's costs.

The legal issue at hand was whether the circumstances of the case warranted a departure from the general rule that each party bears their own costs. The QCAT Act provides that costs are generally borne by the party incurring them, but this presumption can be displaced if the interests of justice require it. The Tribunal had to consider factors such as whether a party acted unreasonably, the nature and complexity of the dispute, the relative strengths of the claims, and the financial circumstances of the parties.

The Tribunal found that neither party acted in a way that unreasonably disadvantaged the other. Both parties engaged in detailed arguments and presented extensive evidence, which was a characteristic of building disputes. The complexity of the dispute, while considerable, did not necessarily warrant a costs order. The relative strengths of the claims did not diverge significantly, and there was no substantial disparity in the financial circumstances of the parties. The respondents, being self-represented, reasonably believed they were in the right and did not act imprudently in rejecting Mr Brown's Calderbank offer. Given these considerations, the Tribunal concluded that the interests of justice did not require an order for costs against the respondents.

The Tribunal ordered that each party bear their own costs of the proceeding. This decision reflects the principle that costs should only be awarded when the circumstances compellingly point to such an order, and in this case, the evidence did not meet that threshold.

Orders