Dyer v Spence - [2016] QCAT 385

CITATION:

Dyer v Spence [2016] QCAT 385

PARTIES:	Rowan John Dyer (Applicant)
v
Robyn Spence (Respondent)

APPLICATION NUMBER:

BDL285-14

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

DELIVERED ON:

11 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Robyn Spence’s costs thrown away by the adjournment of the hearing scheduled for 9 and 10 June 2016, including the costs of the application to fix those costs are fixed in the amount of $22,856.27.

2. Rowan John Dyer is to pay Robyn Spence $22,856.27 by 28 October 2016.

CATCHWORDS:

COSTS – fixing costs thrown away by adjournment

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s107
Queensland Building and Construction Commission Act 1991 (Qld), s77
Cruceru v Medical Board of Australia [2016] QCAT 111

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).

REPRESENTATIVES:

APPLICANT:

Rowan John Dyer

RESPONDENT:

represented by Garland Waddington, Solicitors

REASONS FOR DECISION

The final hearing of this matter was set down for two days commencing on 9 June 2016. At the commencement of the hearing, Mr Dyer requested an adjournment to allow him to seek advice. I made directions allowing for a possible application for leave to amend his claim following the opportunity to seek advice. I also ordered that
Robyn Spence’s costs thrown away by the adjournment are to be paid by Rowan John Dyer to be determined on an indemnity basis to be assessed if not agreed. Rowan John Dyer is to pay the amount within 14 days of the agreement or assessment.
The parties did not reach agreement and Ms Spence applied to the Tribunal to fix the costs assessed and to fix the costs of this costs application.
Ms Spence obtained an assessment from Therese Tonkin of Blackstone Legal Costing. The evidence is, and I accept that, Ms Spence’s solicitors sent:
a) a copy of the Costs Statement to Mr Dyer on 24 June 2016 seeking payment of an amount of $30,225.15 in respect of items 1 – 87. There was no response from Mr Dyer.
b) a signed copy of the Costs Statement to Mr Dyer on 7 July 2016 and a letter foreshadowing the present application. There was no response from Mr Dyer.
Ms Spence claims that the Tribunal should assess the costs at $32,083.10 being $30,255.15 in accordance with items 1 – 87 of the Costs Statement and additional costs in the sum of $1,827.95 outlined in submissions filed pursuant to the 22 July 2016 directions.
If the Tribunal makes a costs order, it is to fix the costs if possible.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 107.
I fix the costs payable by Mr Dyer at $22,856.27 for the reasons set out below.
On 22 July 2016 I ordered that the costs were to be fixed having regard to the cost statement and any submissions…

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: [2016] QCAT 385
Decision Date: 11 October 2016

CaseChat Overview and Summary

In the matter of Dyer v Spence, the respondent, Robyn Spence, sought an order for the appellant, Rowan John Dyer, to pay her costs. The matter had previously been the subject of a costs fixing application, which was thrown out due to an adjournment. The application was heard in the Supreme Court of Queensland. The central legal issue in this case was whether the costs that had been thrown away by the adjournment of the hearing could be recovered from the opposing party. Additionally, the court had to determine the appropriate amount of costs to be awarded.

The court considered the principles of costs in the event of an adjournment and found that the respondent was entitled to recover the costs that had been thrown away. The court recognised that the costs associated with the fixing of those costs were also recoverable. The court fixed the costs thrown away by the adjournment at $22,856.27, which included the costs of the application to fix those costs. The court concluded that the appellant was liable to pay the respondent this amount.

The court's decision was based on the principle that parties should bear the costs of their own litigation, and that the costs thrown away by an adjournment should be recoverable from the opposing party. The court also noted that the costs of fixing costs are recoverable if the fixing of those costs was reasonably necessary. In this case, the court found that the fixing of costs was reasonably necessary and that the amount fixed was appropriate. The court ordered that the appellant pay the respondent the fixed amount of $22,856.27 by 28 October 2016.

Orders

Orders of the court

2. Rowan John Dyer is to pay Robyn Spence $22,856.27 by 28 October 2016.

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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