EHome Construction Pty Ltd v GCB Constructions Pty Ltd (No 2) - [2020] QSC 314

SUPREME COURT OF QUEENSLAND

CITATION:

EHome Construction Pty Ltd v GCB Constructions Pty Ltd (No 2) [2020] QSC 314

PARTIES:

EHOME CONSTRUCTION PTY LTD

ABN 72 607 445 009

(applicant)

v

GCB CONSTRUCTIONS PTY LTD

ABN 26 151 244 254

(first respondent)

RANJIT KHOSLA J1077622

(second respondent)

THE ADJUDICATION REGISTRAR, QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(third respondent)

FILE NO/S:

BS 6386 of 2020

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

14 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Bond J

ORDER:

The applicant must pay the first respondent’s costs of the proceeding (including reserved costs), to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – OFFER OF COMPROMISE OR OFFER TO SETTLE OR CONSENT TO JUDGMENT PURSUANT TO RULES – WHO IS PLAINTIFF AND WHO IS DEFENDANT – where the applicant contended that an adjudication decision in favour of the first respondent was an invalid adjudication decision – where the first respondent made an offer to settle under UCPR Chapter 9 Part 5 and obtained an outcome no less favourable than the offer – where the first respondent contends it is in the position of a plaintiff or counterclaimant in that it was required to establish the validity of the adjudication decision – whether the first respondent should have its costs paid on the indemnity basis

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONS GENERALLY – where the first respondent contends that the applicant’s arguments were without merit – where the first respondent had brought an interlocutory application to have the applicant declared in contempt for failing to comply with an order requiring payment of monies into Court – whether either circumstance justifies a departure from the usual course of costs assessed on the standard basis

Uniform Civil Procedure Rules 1999 (Qld), r 360

Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225; [1993] FCA 801, applied
EHome Construction Pty Ltd v GCB Constructions Pty Ltd [2020] QSC 291, cited
Mango Boulevard Pty Ltd v Spencer [2008] QCA 392, cited

Smith v Wessling-Smith [2017] QSC 189, considered

Introduction

In this proceeding, the applicant sought declarations, principal amongst which was a declaration that an adjudication decision by the second respondent was not a valid adjudication decision pursuant to the Building Industry Fairness (Security of Payment) Act 2017 (Qld).
For the reasons which I expressed in an ex tempore judgment on 18 September 2020, the application failed: see EHome Construction Pty Ltd v GCB Constructions Pty Ltd [2020] QSC 291.
I have now received submissions on the question of the orders which should be made in relation to the costs of the proceeding.
The applicant accepts that costs should follow the event and submits that the costs order should be that the applicant pay the first respondent’s costs of the originating application…

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: [2020] QSC 314
Decision Date: 14 October 2020

CaseChat Overview and Summary

EHome Construction Pty Ltd, the applicant, sought to challenge an adjudication decision that favoured GCB Constructions Pty Ltd, the first respondent. The dispute came before the court to determine whether the adjudication decision was valid and to address the first respondent’s contention that it was in the position of a plaintiff or counterclaimant, which would entitle it to indemnity costs. The first respondent had made an offer to settle under the UCPR Chapter 9 Part 5, which resulted in an outcome no less favourable than the offer, and had also brought an interlocutory application to declare the applicant in contempt for failing to comply with an order requiring payment of monies into Court.

The primary legal issue before the court was whether the first respondent’s position as a party who was required to establish the validity of the adjudication decision entitled it to indemnity costs, given that it had effectively acted as the plaintiff or counterclaimant. The court also considered whether the applicant's arguments were without merit and whether the first respondent’s actions in bringing an interlocutory contempt application justified a departure from the usual course of costs being assessed on the standard basis.

The court determined that the first respondent was not in the position of a plaintiff or counterclaimant and that the usual course of costs being assessed on the standard basis should apply. The court found that the applicant’s arguments were not without merit and that the first respondent’s actions in bringing the interlocutory contempt application did not justify a departure from the standard basis of costs assessment. Consequently, the applicant was ordered to pay the first respondent's costs of the proceeding, including reserved costs, assessed on the standard basis.

The final orders of the court were that the applicant must pay the first respondent’s costs of the proceeding, including reserved costs, to be assessed on the standard basis. This decision underscores the importance of carefully considering the respective positions of the parties in determining the appropriate basis for costs assessment in civil proceedings.

Orders

Orders of the court

The applicant must pay the first respondent’s costs of the proceeding (including reserved costs), to be assessed on the standard basis.

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:	EHome Construction Pty Ltd v GCB Constructions Pty Ltd (No 2) [2020] QSC 314
PARTIES:	EHOME CONSTRUCTION PTY LTD ABN 72 607 445 009 (applicant) v GCB CONSTRUCTIONS PTY LTD ABN 26 151 244 254 (first respondent) RANJIT KHOSLA J1077622 (second respondent) THE ADJUDICATION REGISTRAR, QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (third respondent)
FILE NO/S:	BS 6386 of 2020
DIVISION:	Trial Division
PROCEEDING:	Originating Application
DELIVERED ON:	14 October 2020
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Bond J
ORDER:	The applicant must pay the first respondent’s costs of the proceeding (including reserved costs), to be assessed on the standard basis.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – OFFER OF COMPROMISE OR OFFER TO SETTLE OR CONSENT TO JUDGMENT PURSUANT TO RULES – WHO IS PLAINTIFF AND WHO IS DEFENDANT – where the applicant contended that an adjudication decision in favour of the first respondent was an invalid adjudication decision – where the first respondent made an offer to settle under UCPR Chapter 9 Part 5 and obtained an outcome no less favourable than the offer – where the first respondent contends it is in the position of a plaintiff or counterclaimant in that it was required to establish the validity of the adjudication decision – whether the first respondent should have its costs paid on the indemnity basis PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONS GENERALLY – where the first respondent contends that the applicant’s arguments were without merit – where the first respondent had brought an interlocutory application to have the applicant declared in contempt for failing to comply with an order requiring payment of monies into Court – whether either circumstance justifies a departure from the usual course of costs assessed on the standard basis Uniform Civil Procedure Rules 1999 (Qld), r 360 Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225; [1993] FCA 801, applied EHome Construction Pty Ltd v GCB Constructions Pty Ltd [2020] QSC 291, cited Mango Boulevard Pty Ltd v Spencer [2008] QCA 392, cited Smith v Wessling-Smith [2017] QSC 189, considered