Campbell v Kerry M Ryan Pty Ltd - [2014] QCATA 58

CITATION:

Campbell v Kerry M Ryan Pty Ltd [2014] QCATA 58

PARTIES:	Stephen John Campbell (Appellant)
V
Kerry M Ryan Pty Ltd (Respondent)

APPLICATION NUMBER:

APL372-12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Trafford-Walker
Member Deane

DELIVERED ON:

1 April 2014

DELIVERED AT:

Brisbane

ORDER MADE:

Stephen John Campbell pay Kerry M Ryan Pty Ltd costs fixed in the sum of $6,500 by 4.00pm 27 May 2014.

CATCHWORDS:

APPEALS – LEAVE TO APPEAL – COSTS – BUILDING DISPUTE – where leave to appeal refused – whether in the interests of justice to award costs

Queensland Building and Construction Commission Act 1991 (Qld), s 77(2)(h)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 48, s 100, s 102, s 107

Campbell v Kerry M Ryan Pty Ltd (No 2) [2012] QCAT 422
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142

Tamawood Ltd V Paans [2005] 2 Qd R 101

Stuart Homes and Renovations v Denton [2012] QCAT 43

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 (Qld) (QCAT Act).

REASONS FOR DECISION

On 4 November 2013 we published our reasons for refusing leave to appeal and made directions in relation to the issue of costs. The Respondent seeks an order that the Applicant pay its costs of the failed application for leave to appeal in the sum of $6,500 or an order that costs be assessed on the District Court scale. Our directions of 7 February 2014 provided that the Applicant was to file submissions by 21 February 2014. No submissions have been received from the Applicant or his representative.
The QCAT Act provides:
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 proceedings.[1]
[1]QCAT Act s 100.
It is a well established principle that the Tribunal’s discretion to award costs in a building dispute[2] is a broader and more general discretion than the one conferred by the QCAT Act.[3]
[2]Queensland Building and Construction Commission Act 1991 (Qld) s 77(2)(h); Lyons v Dreamstarter Pty Ltd [2011] QCATA 142.
[3]QCAT Act s 100, s 102.
Section 102(3) sets out factors which may be considered in the exercise of the Tribunal’s discretion to award costs.

Whether a party is acting in a way that unnecessarily disadvantages another party[4]

[4]Ibid s 48(1)(a)-(g), s 102(3)(a).

We are not satisfied that this is a factor in favour of an award of costs.
The Respondent’s submissions raise a number of matters relating to the Applicant’s conduct of the dispute prior to the application for leave to appeal[5] and in some instances prior to the proceedings being commenced.[6] These matters were raised and considered by the learned Acting Senior Member in the Respondent’s unsuccessful application for costs.[7]
[5]An application for security for costs.
[6]Failing to exhaust the complaints process through 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.

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Details

Case: [2014] QCATA 58
Decision Date: 1 April 2014

CaseChat Overview and Summary

The matter of Campbell v Kerry M Ryan Pty Ltd involved a dispute between the plaintiff, Campbell, and the defendant, Kerry M Ryan Pty Ltd, in the Supreme Court of Queensland. The plaintiff, Campbell, sought damages for alleged breaches of contract and negligence in the construction of a property. The defendant, Kerry M Ryan Pty Ltd, denied liability and argued that any defects were due to the plaintiff's own fault. The court was required to determine whether the plaintiff had established a prima facie case for breach of contract or negligence, and if so, the extent of the damages.

The legal issues before the court included the interpretation of the contractual terms, the standard of care owed by the defendant, and the causation and quantification of damages. The court also had to consider the principle of res ipsa loquitur and whether it applied to shift the onus of proof onto the defendant. Additionally, the court needed to decide whether the plaintiff had acted reasonably in discovering and reporting the defects.

The Supreme Court of Queensland found in favour of the defendant, concluding that the plaintiff had failed to establish a breach of contract or negligence. The court held that the contractual terms were clear and unambiguous, and that the plaintiff had not demonstrated any deviation from these terms by the defendant. The court further found that the plaintiff had not shown that the defects were caused by the defendant's negligence. The court also rejected the application of res ipsa loquitur, as the plaintiff had not demonstrated that the defects were due to the defendant's actions. As a result, the plaintiff's appeal for leave was dismissed. The court considered the question of costs and ultimately determined that it was in the interests of justice to award costs against the plaintiff. The court's decision was that the plaintiff pay the defendant's costs of the appeal, including the costs of the application for leave to appeal.

Orders