Gedoun Constructions Pty Ltd v Agius - [2021] QCAT 250

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gedoun Constructions Pty Ltd v Agius [2021] QCAT 250

PARTIES: GEDOUN CONSTRUCTIONS PTY LTD

(applicant)

v

MARK ELLIOT AGIUS

(respondent)

APPLICATION NO:

BDL308-18

MATTER TYPE:

Building matters

DELIVERED ON:

29 January 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member McVeigh

ORDER:

The respondent must pay the applicant’s costs thrown away as a consequence of the respondent being granted leave to file a report by a new wind expert, fixed at $42,023.75.

CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS – GENERAL MATTERS - building contract dispute – where respondent granted leave to file a new expert report on third day of hearing – whether applicant entitled to costs thrown away – whether costs should be awarded on an indemnity basis - whether costs should be fixed

Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(h)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 107, s 121(4)

Cassimatis & Anor v Australian Securities and Investment Commission (2016) 334 ALR 350

Cruceru v Medical Board of Australia [2016] QCAT 111
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
Lyons v Dreamstarter Pty Ltd [2012] QCATA 71
TLL Investment Pty Ltd v The Body Corporate for The Grange CTS 30993 (No 2) [2018] QCAT 444

Todrell Pty Ltd v Finch & Anor [2007] QSC 386

REPRESENTATION:

Applicant:

Connolly Suthers

Respondent:

Becker Watt Lawyers

APPEARANCES:

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

REASONS FOR DECISION

Background

On 26 August 2020, the third day of the hearing, I gave the respondent owner leave to file a report by a new wind expert. The parties were directed to file written submissions in respect of costs occasioned as a consequence of granting that indulgence.
The applicant builder’s submissions and a supporting affidavit from William Evans were filed on 8 September 2020. Mr Evans is a partner of the firm Connolly Suthers. He has the conduct of the proceedings for the applicant.
The respondent’s submissions and a supporting affidavit from Michael Campbell were filed on 2 October 2020. Mr Campbell is on the roll of court approved cost assessors. He has had no previous involvement in the proceedings.
The applicant’s submissions in reply were filed on 9 November 2020.
At my request the applicant provided further material on 3 December 2020.
Although I am not obliged to give reasons for a costs decision, including the fixing of costs,[1] I do so given the amount of costs claimed.
[1]As a costs decision is not a final decision under section 121(4) of the QCAT Act.

Relevant legislation

Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides that, subject to an enabling Act, each party must bear its own costs of the proceedings.
The Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) is the relevant enabling Act for these…

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 [2021] QCAT 250
Case: [2021] QCAT 250
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal was called upon to decide a dispute between Gedoun Constructions Pty Ltd (the applicant) and Mark Elliot Agius (the respondent) regarding costs thrown away as a consequence of the respondent being granted leave to file a report by a new wind expert during the course of the proceedings. The tribunal considered the legal issues of whether it was just and reasonable for the respondent to pay the costs thrown away, whether the costs should be awarded on an indemnity basis, and if the costs should be fixed. The tribunal found that it was just and reasonable for the respondent to pay the costs thrown away due to the late substitution of the respondent’s expert on wind issues. The tribunal also found that the costs should be awarded on an indemnity basis, as the respondent's conduct in continuing to rely on an unqualified expert was irresponsible. Lastly, the tribunal fixed the costs thrown away at $42,023.75, based on the evidence provided by the applicant's solicitor and expert witness.
The tribunal's decision was based on the respondent's irresponsible conduct in continuing to rely on an unqualified expert, despite concerns raised by the applicant and the tribunal. The tribunal found that the respondent's conduct exposed the applicant to costs that should be awarded on an indemnity basis. The tribunal also found that the costs thrown away could be fixed based on the evidence provided by the applicant's solicitor and expert witness. The tribunal fixed the costs thrown away at $42,023.75, which the respondent must pay to the applicant. The tribunal noted that the applicant could claim costs not included in this claim if it became entitled to its costs in future.

Orders