Civic Steel Homes v Mitra - [2006] QDC 322

DISTRICT COURT OF QUEENSLAND

CITATION:

Civic Steel Homes Pty Ltd v Mitra [2006] QDC 322

PARTIES:

CIVIC STEEL HOMES PTY LTD

Appellant/Respondent

and

MITRA, ALEX & MITRA, HELEN

Respondents/Applicants

FILE NO/S:

No BD4778 of 2005

DIVISION:

Appellate

PROCEEDING:

Application for leave to appeal

ORIGINATING COURT:

Commercial and Consumer Tribunal

DELIVERED ON:

18 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

13 July – written submissions to 1 August 2006

JUDGE:

Robin QC DCJ

ORDER:

Leave to appeal refused

CATCHWORDS:

Refusal of leave to appeal from tribunal decision denying costs to a successful party which had properly engaged legal representation – leave available only for error of law – tribunal members said to have failed to consider Court of Appeal ruling that such a party should have costs in the absence of countervailing considerations – whether tribunal member’s “opinion” that the outcome before him was less favourable to the “unsuccessful” parties than an offer which they rejected was vitiated by denial of natural justice – whether tribunal member should have invited further submissions as to the monetary value to be ascribed to the component of the offer releasing a builder from not only claims made in the proceeding or foreshadowed, but any future claims whatever – Commercial and Consumer Tribunal Act 2003, s 70, s 71, s 100, s 142.

COUNSEL:

Mr Codd for the appellant/respondent

Mr Daubney SC for the respondents/applicants

SOLICITORS:

Hopgood Ganim for the appellant/respondent

Stubbs Barbeler for the respondents/applicants

There are two independent bases put up for the granting of leave to appeal under s 100(1) of the Commercial and Consumer Tribunal Act 2003 (CACTA) against the Tribunal’s decision of 25 November 2005 refusing to award the applicant (Civic Steel) any costs against the Mitras, who had been applicants before the Tribunal. They had proceeded in the Tribunal because of dissatisfaction with Civic Steel’s performance of a contract to construct a new home for them. On the issues presented to the Tribunal for decision they were wholly unsuccessful, with the minor exception of establishing that liquidated damages for late completion covered a few additional days beyond the number conceded. On those issues, Civic Steel was thus wholly successful: the lion’s share of moneys in trust (in excess of $30,000) went to Civic Steel – indeed all of it, less $1,004.65.

Mediation in the Tribunal was effective to reduce the Mitras’ claim and/or amounts in issue from approaching $200,000 to around the limit of the jurisdiction of the Magistrates Court; establishment of the $31,295.60 fund was an outcome of the mediation; it resulted in a consent order that the Mitras pay Civic Steel $41,547. It was subsequently that substantial costs were incurred. Mr Codd, for Civic Steel, estimated the costs sought at nearly $52,000.

Under s 100 of CACTA, this court may consider granting leave to appeal only for “error of law”. This is not a situation of “excess, or want of jurisdiction” in the Tribunal. The first error of law pointed to relates to the general approach to…

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: [2006] QDC 322
Decision Date: 18 August 2006

CaseChat Overview and Summary

Civic Steel Homes sought leave to appeal a decision of the Commercial and Consumer Tribunal which had denied their application for costs in a proceeding in which they were successful. The tribunal had concluded that the costs incurred by Civic Steel Homes were not “reasonable” in the absence of countervailing considerations. In the court of appeal, it was submitted that the tribunal had failed to consider a Court of Appeal ruling that a successful party who had properly engaged legal representation should have costs in the absence of countervailing considerations. It was further submitted that a tribunal member’s opinion that the outcome before him was less favourable to the “unsuccessful” parties than an offer which they had rejected was vitiation by denial of natural justice. It was also submitted that the tribunal member should have invited further submissions as to the monetary value to be ascribed to the component of the offer releasing a builder from not only claims made in the proceeding or foreshadowed, but any future claims whatever.

The court observed that the tribunal was not bound to follow the Court of Appeal ruling, and it was only if there was an error of law that leave to appeal would be granted. The court held that the tribunal had not made an error of law, and that the tribunal was entitled to consider the relative merits of the offer and the outcome before it. The court further held that the tribunal was not required to invite further submissions as to the monetary value of any component of the offer. The court concluded that the tribunal’s decision was not vitiation by natural justice, and that leave to appeal should be refused.

The court dismissed the application for leave to appeal. The tribunal’s decision to deny costs to Civic Steel Homes was upheld. The court made no order as to costs.

Orders

Orders of the court

Leave to appeal refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Civic Steel Homes Pty Ltd v Mitra [2006] QDC 322
PARTIES:	CIVIC STEEL HOMES PTY LTD Appellant/Respondent and MITRA, ALEX & MITRA, HELEN Respondents/Applicants
FILE NO/S:	No BD4778 of 2005
DIVISION:	Appellate
PROCEEDING:	Application for leave to appeal
ORIGINATING COURT:	Commercial and Consumer Tribunal
DELIVERED ON:	18 August 2006
DELIVERED AT:	Brisbane
HEARING DATE:	13 July – written submissions to 1 August 2006
JUDGE:	Robin QC DCJ
ORDER:	Leave to appeal refused
CATCHWORDS:	Refusal of leave to appeal from tribunal decision denying costs to a successful party which had properly engaged legal representation – leave available only for error of law – tribunal members said to have failed to consider Court of Appeal ruling that such a party should have costs in the absence of countervailing considerations – whether tribunal member’s “opinion” that the outcome before him was less favourable to the “unsuccessful” parties than an offer which they rejected was vitiated by denial of natural justice – whether tribunal member should have invited further submissions as to the monetary value to be ascribed to the component of the offer releasing a builder from not only claims made in the proceeding or foreshadowed, but any future claims whatever – Commercial and Consumer Tribunal Act 2003, s 70, s 71, s 100, s 142.
COUNSEL:	Mr Codd for the appellant/respondent Mr Daubney SC for the respondents/applicants
SOLICITORS:	Hopgood Ganim for the appellant/respondent Stubbs Barbeler for the respondents/applicants