Campbell v Kerry M Ryan Pty Ltd (No 2) - [2012] QCAT 422

CITATION:

Campbell v Kerry M Ryan Pty Ltd (No 2) [2012] QCAT 422

PARTIES:	Stephen John Campbell (Applicant)
v
Kerry M Ryan Pty Ltd (Respondent)

APPLICATION NUMBER:

BDL266-10

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Michelle Howard, Acting Senior Member

DELIVERED ON:

7 September 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for costs is dismissed.

CATCHWORDS :

COSTS – DOMESTIC BUILDING DISPUTE – where building contractor failed to reduce variations to the contract to writing as required by the Domestic Building Contracts Act 2000 – where applicant homeowner wholly unsuccessful on claims made against the contractor

Queensland Building Services Authority Act 1991
Queensland Civil and Administrative Tribunal Act 2009

Lyons v Dreamstarter Pty Ltd [2011] QCATA 142

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

Mr Campbell made a claim against Kerry M Ryan Pty Ltd (referred to as KMR), a house removalist business for damages arising out of a contract for the sale and delivery of a removal house.
I heard the matter over two days. Mr Campbell was wholly unsuccessful on his claim. I dismissed the claim and made directions for the making of any costs application and submissions.
KMR now seeks its costs on the District Court Scale, on the basis of the original quantum of the claim of $178,649.83. At hearing, the quantum of damages sought, for breach of contract was amended to $71,592.55.

The parties’ submissions

In support of its claim, KMR submits that because of complexity, leave was granted for legal representation. Also, it says that Mr Campbell should have exhausted his complaints regarding the issues raised in the proceeding with the Building Services Authority (BSA) and allowed KMR to complete rectification required, before applying to the Tribunal. It further submits that the unsuccessful application for security for costs made by Mr Campbell during the proceedings occasioned unnecessary costs for KMR. Further, KMR submits that the ‘exceptionally broad’ claim was without merit noting that it was dismissed entirely, despite Mr Campbell being allowed to adduce further evidence at the hearing.
It argues that KMR is a family-run, business which does not have significant funds to spend on litigation and that the costs of the proceeding have been significant.
Mr Campbell submits that both parties should bear their own costs. Although he acknowledges that the success of KMR in the proceeding weighs in favour of an award to it, he submits that other relevant factors weigh in his favour.
He says that the BSA complaint process is not relevant since the proceeding turned on the Tribunal’s findings about the contractual arrangements between the parties and the parties’ rights and obligations arising from those arrangements. The BSA could not resolve these issues but the Tribunal could. He argues that the application for security for costs is not a basis for awarding costs generally…

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 422
Decision Date: 7 September 2012

CaseChat Overview and Summary

The case of Campbell v Kerry M Ryan Pty Ltd (No 2) arose in the context of a domestic building dispute. The applicant, Mr Campbell, was a homeowner who had engaged Kerry M Ryan Pty Ltd, a building contractor, for a construction project. The crux of the dispute was the failure of the contractor to reduce variations to the original contract to writing, which was a statutory requirement under the Domestic Building Contracts Act 2000. Mr Campbell sought to recover costs and damages from the contractor due to this breach and other alleged issues arising from the construction work.

The primary legal issue before the court was whether Mr Campbell was entitled to an order for costs against the contractor, despite his claims being wholly unsuccessful. The court had to consider the statutory framework provided by the Domestic Building Contracts Act 2000, as well as relevant case law on the principles of costs in Australian civil litigation. Specifically, the court examined the circumstances under which a party could be granted costs, particularly when the applicant’s claims had not succeeded.

The court held that the statutory provisions did not automatically entitle the applicant to costs merely because the contractor had breached the Act. It emphasised that the discretion to award costs was not exercised lightly and required consideration of the overall conduct of the litigation, the merits of the claims, and the outcome. Given that Mr Campbell’s claims were entirely unsuccessful, the court concluded that an order for costs against the contractor would be inappropriate. The court’s reasoning was grounded in the need to balance the statutory objectives of the Act with the practicalities of cost recovery in litigation.

Accordingly, the court dismissed the application for costs, reinforcing the principle that unsuccessful litigants cannot expect to recover costs as a matter of course. The decision underscores the importance of the outcome of litigation in determining whether costs should be awarded, even in cases where statutory obligations have been breached.

Orders

Orders of the court

1. The application for costs 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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