Gedoun Constructions Pty Ltd v Agius (no. 2) - [2022] QCAT 318

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gedoun Constructions Pty Ltd v Agius (no. 2) 2022 [QCAT] 318

PARTIES:

GEDOUN CONSTRUCTIONS PTY LTD

(applicant)

v

Mark Elliot Agius

(respondent)

APPLICATION NO:

BDL308-18

MATTER TYPE:

Building matters

DELIVERED ON:

31 August 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member McVeigh

ORDERS:

1.     The applicant must pay the respondent’s costs on the standard basis assessed on the District Court scale.

2.     If the parties cannot agree the amount of costs to be paid by the applicant to the respondent:

(a)     the respondent must file an assessment of his costs on the standard basis on the District Court scale by 7 November 2022; and

(b)     the applicant must file its itemised reasons why the costs have not been properly claimed or assessed by 5 December 2022.

3.     The costs will be determined on the papers.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – building contract dispute – costs

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

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 105, s 107

Allen & Anor v Contrast Constructions Pty Ltd (No 3) [2021] QCATA 143

Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 531
Cruceru v Medical Board of Australia [2016] QCAT 111
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
Mt Cotton Constructions Pty Ltd v Greer & Anor (No 2) [2016] QCAT 387
Rainbow Builders Pty Ltd v The State of Queensland through the Department of Housing and Public Works (No. 2) [2016] QCAT 497
Terera & Bohler v Clifford [2016] QCATA 25
W A Gilbey v Continental Liquers Pty Ltd [1964] NSWLR 527
Worthington v Ryan [2022] QCATA 8

APPEARANCES & REPRESENTATION:

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 to this decision regarding costs

In my decision dated 29 January 2022 I set out the background of the dispute between Gedoun Constructions Pty Ltd (builder) and Mark Agius (owner).
The hearing commenced on 24 August 2020. On the third day of the hearing, in response to the builder’s objection to the expertise of the person the owner intended to call to give evidence about the wind classification of the site, the owner sought and was granted leave to file a report from an alternative expert. In order not to waste allocated hearing time, the hearing continued to deal with evidence going to issues other than wind classification.
The builder claimed costs thrown away by the late substitution of the owner’s expert on wind issues, on an indemnity basis. In my decision regarding costs thrown away made 29 January 2021 I ordered the owner to pay the builder costs thrown away as a consequence of granting the indulgence to the respondent. I found that, based on relevant facts set out in that decision,…

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 (no. 2)

Details

AGLC: Gedoun Constructions Pty Ltd v Agius (no. 2) [2022] QCAT 318
Case: [2022] QCAT 318
Decision Date: 31 August 2022

CaseChat Overview and Summary

Gedoun Constructions Pty Ltd sought a review of an order made by a Deputy Registrar of the Supreme Court, which found the applicant liable for the respondent’s costs on the standard basis assessed on the District Court scale. The applicant opposed the order and sought a costs order in its favour. The respondent cross-applied for the costs order to be made on the party and party basis assessed on the Supreme Court scale. The court had to decide whether the applicant’s application was frivolous or vexatious, and whether the costs should be awarded on the standard or party and party basis, and on the District or Supreme Court scale. The court held that the application was not frivolous or vexatious, and that the costs should be assessed on the standard basis on the District Court scale. The court found that the application was not an abuse of process and did not involve an attempt to undermine the Deputy Registrar’s decision. The court also found that the standard basis was appropriate in this case, as the applicant’s conduct did not warrant the higher costs associated with the party and party basis. The court ordered that the applicant must pay the respondent’s costs on the standard basis assessed on the District Court scale.

Orders

Orders of the court

1. The applicant must pay the respondent’s costs on the standard basis assessed on the District Court scale.

2. If the parties cannot agree the amount of costs to be paid by the applicant to the respondent:

(a) the respondent must file an assessment of his costs on the standard basis on the District Court scale by 7 November 2022; and

(b) the applicant must file its itemised reasons why the costs have not been properly claimed or assessed by 5 December 2022.

3. The costs will be determined on the papers.

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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