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
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…
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- AGLC
- Gedoun Constructions Pty Ltd v Agius [2021] QCAT 250
- Case
- [2021] QCAT 250
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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