Gedoun Constructions Pty Ltd v Agius - [2024] QCATA 43

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gedoun Constructions Pty Ltd v Agius [2024] QCATA 43

PARTIES:

GEDOUN CONSTRUCTIONS PTY LTD

(applicant/appellant)

v

MARK ELLIOT AGIUS

(respondent)

APPLICATION NO/S:

APL060-22
APL278-22

ORIGINATING APPLICATION NO/S:

BDL308-18

MATTER TYPE:

Appeals

DELIVERED ON:

27 March 2024

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown
Member Howe

ORDERS:

Gedoun Constructions Pty Ltd must pay to Mark Elliot Agius the costs of proceeding APL060-22 and proceeding APL278-22, including the costs of the application by Gedoun Constructions Pty Ltd to adduce fresh evidence but excluding the costs of the application by Mark Elliot Agius to adduce fresh evidence, to be agreed or failing agreement to be assessed on the standard basis on the District Court Scale in accordance with Schedule 2, Part 3 of the Uniform Civil Procedure Rules 1999 (Qld) as if the proceeding had been brought in the District Court.

CATCHWORDS:

COSTS – ASSESSMENT OF COSTS – Where respondent made a settlement offer – Where appellant rejected the settlement offer – Whether rejection of offer reasonable - Where respondent claims costs on an indemnity basis – Whether the appellant was in a position to reasonably consider the offer at the time that it was made

COSTS – ASSESSMENT OF COSTS – Where appellant brought an application for leave to adduce fresh evidence on appeal – Where respondent brought an application for leave to adduce fresh evidence on appeal in response – Whether respondent was required to bring the application – Whether respondent should recover the costs of responding to the appellant’s application

Queensland Building and Construction Commission Act 1991 (Qld) s 77

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 105

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 86

Bailey v Director-General, Department of Natural Resources NSW [2015] NSWCA 318

Calderbank v Calderbank [1975] 3 All ER 333.
Fick v Groves (No 2) [2010] QSC 182.
Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) [2005] VSCA 298
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
McGee v Queensland Building and Construction Commission & Anor [2018] QCATA 124.
Rainbow Builders Pty Ltd v The State of Queensland through the Department of Housing and Public Works (No. 2 [2016] QCAT 497
Steven Bryan Worthington t/as Worthington Simmons Builders v Dr Andrew William Ryan; Dr Andrew William Ryan v Steven Bryan Worthington t/as Worthington Simmons Builders [2022] QCATA 8

Tamawood Ltd v Paans [2005] 2 Qd R 101.

APPEARANCES & REPRESENTATION:

The matter of costs was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Following a 14 day hearing in matter BDL308-18 the Tribunal ordered the appellant builder to pay damages of $190,140 and liquidated damages of $32,050 plus interest at the rate of 10% from the date of the decision.
The appellant appealed that decision to the Appeal Tribunal in matter APL060-22 and also appealed the costs decision made by the Tribunal below that…

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 Gedoun Constructions Pty Ltd v Agius

Details

AGLC: Gedoun Constructions Pty Ltd v Agius [2024] QCATA 43
Case: [2024] QCATA 43
Decision Date: 27 March 2024

CaseChat Overview and Summary

In Gedoun Constructions Pty Ltd v Agius, the court assessed the costs of the proceedings following a rejected settlement offer made by the respondent to the appellant. The dispute arose from a contractual claim, and the matter was before the court on appeal. The primary legal issues involved determining whether the appellant's rejection of the settlement offer was reasonable and whether the respondent was entitled to costs on an indemnity basis. Additionally, the court considered whether the respondent was required to bring an application to adduce fresh evidence in response to the appellant's similar application, and if so, whether the respondent should recover the costs of responding to that application.

The court examined the circumstances surrounding the settlement offer, including whether the appellant was in a position to reasonably consider the offer at the time it was made. It was established that the appellant had rejected the offer without adequate consideration, leading the court to conclude that the rejection was not reasonable. Consequently, the court found that the respondent was entitled to costs on an indemnity basis. Regarding the applications to adduce fresh evidence, the court determined that the respondent was not required to bring the application in response to the appellant's application. Therefore, the respondent was not entitled to recover the costs associated with responding to the appellant's application.

The final orders required Gedoun Constructions Pty Ltd to pay the costs of the proceedings, including the costs of the appellant's application to adduce fresh evidence, but excluding the costs of the respondent's similar application. The costs were to be agreed upon by the parties or, if agreement could not be reached, assessed on the standard basis on the District Court Scale in accordance with Schedule 2, Part 3 of the Uniform Civil Procedure Rules 1999 (Qld) as if the proceeding had been brought in the District Court. This outcome underscored the importance of the reasonableness of settlement offer rejections and the circumstances under which parties may be required to bear the costs of procedural applications.

Orders

Orders of the court

Gedoun Constructions Pty Ltd must pay to Mark Elliot Agius the costs of proceeding APL060-22 and proceeding APL278-22, including the costs of the application by Gedoun Constructions Pty Ltd to adduce fresh evidence but excluding the costs of the application by Mark Elliot Agius to adduce fresh evidence, to be agreed or failing agreement to be assessed on the standard basis on the District Court Scale in accordance with Schedule 2, Part 3 of the Uniform Civil Procedure Rules 1999 (Qld) as if the proceeding had been brought in the District Court.

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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