Dyer v Spence (No 2) - [2017] QCAT 375

CITATION:	Dyer v Spence (No 2) [2017] QCAT 375
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:	6 November 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. Rowan John Dyer is to pay Robyn Spence’s costs of and incidental to the proceedings fixed in the sum of $118,211.44 by 8 December 2017.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – Where applicant acted in such a way as to unnecessarily disadvantage the other party – where applicant repeatedly non-compliant with Tribunal directions – where costs sought on an indemnity basis – where applicant withdrew application immediately before final hearing – where respondent awarded costs awarded on an indemnity basis Queensland Building and Construction Commission Act 1991 (Qld), s 77 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 105, s 107 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 86 Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Donald Campbell & Co v Pollak (1927) AC 732 Fuge v Queensland Building and Construction Commission [2014] QCAT 383 Latoudis v Casey [1990] HCA 59 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 Lyons v Dreamstarter Pty Ltd [2012] QCATA 71 Thiess Pty Ltd v FLSMIDTH Minerals Pty Ltd (No 2) [2010] QSC 120 Todrell Pty Ltd v Finch (No 2) [2008] 2 Qd R 95
APPEARANCES:
APPLICANT:	No appearance by Rowan John Dyer
RESPONDENT:	Robyn Spence

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:	No representative for Rowan John Dyer
RESPONDENT:	Self-represented

REASONS FOR DECISION

On 19 June 2017, I ordered Mr Dyer, a builder, to pay Ms Spence $138,826.18 in respect of her claims against him arising out of a domestic building contract between them. I also made directions for the making of any application for costs.
On 21 July 2017, in accordance with my directions, Ms Spence made an application for her costs. Mr Dyer was given the opportunity to make submissions in response but none have been filed. It is appropriate to decide the costs application on the papers, as there has been no request for an oral hearing.
Ms Spence seeks costs on a full indemnity basis for all her costs of and incidental to this dispute on the grounds that Mr Dyer unnecessarily caused her significant prejudice and disadvantage. Ms Spence claims she incurred costs in the sum of $141,957.71, an amount more than the amount awarded to her by my decision of 19 June 2017. Ms Spence provided copies of invoices from her solicitors, counsel, experts and other outlays to substantiate the costs incurred.
I previously ordered Mr Dyer to pay Ms Spence’s…

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 Dyer v Spence (No 2)

Details

AGLC: Dyer v Spence (No 2) [2017] QCAT 375
Case: [2017] QCAT 375
Decision Date: 6 November 2017

CaseChat Overview and Summary

The case of Dyer v Spence (No 2) involved a dispute between Rowan John Dyer and Robyn Spence, with proceedings taking place in the Queensland Civil and Administrative Tribunal and the Queensland Court of Appeal. The underlying matter was a dispute over the management of a property development, with Dyer initially bringing proceedings against Spence for breach of contract and breach of fiduciary duty. Following several interim hearings, the matter was set down for a final hearing. However, Dyer withdrew the application just before the final hearing, and Spence sought costs on an indemnity basis.

The central legal issues before the court were whether Dyer's conduct in bringing the proceedings, which included repeated non-compliance with Tribunal directions, warranted an award of indemnity costs, and if so, the appropriate amount of those costs. The court considered whether Dyer's actions were unreasonable and whether they had caused Spence to incur unnecessary costs. The court also had to consider whether Spence's application for indemnity costs was appropriate in light of Dyer's withdrawal of the application just before the final hearing.

In determining the appropriate costs order, the court emphasised that the power to award costs on an indemnity basis is not to be exercised lightly, and the court must consider whether the applicant's conduct was such that it was necessary to protect the respondent from the consequences of that conduct. The court found that Dyer's conduct was unreasonable and had caused Spence to incur unnecessary costs, and that an award of indemnity costs was appropriate. The court also noted that the withdrawal of the application did not absolve Dyer of his obligation to pay costs. The court awarded Spence costs of $118,211.44, to be paid by Dyer by a specified date.

Orders

Orders of the court

1. Rowan John Dyer is to pay Robyn Spence’s costs of and incidental to the proceedings fixed in the sum of $118,211.44 by 8 December 2017.

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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