Gillham v Kernohan Construction Pty Ltd (No. 3) - [2024] QCATA 59

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gillham v Kernohan Construction Pty Ltd (No. 3) [2024] QCATA 59

PARTIES:

AUSTIN GILLHAM

(applicant/appellant)

v

KERNOHAN CONSTRUCTION PTY LTD T/AS KERNOHAN CONSTRUCTION

(respondent)

APPLICATION NO/S:

APL191-19

ORIGINATING APPLICATION NO/S:

BDL116-15

MATTER TYPE:

Appeals

DELIVERED ON:

23 May 2024

HEARING DATE:

On the papers

DECISION OF:

Senior Member Brown
Member Howe

ORDERS:

1. Kernohan Constructions Pty Ltd t/as Kernohan Constructions must pay Austin Gillham’s costs of the appeal fixed in the amount of $10,169.00 within fourteen (14) days.

2. The proceeding is remitted for the determination of costs in proceeding BDL116-14.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – SCALE OF COSTS – WHERE NO SCALE PROVIDED Where appellant pursued a number of grounds of appeal – Where majority of appeal grounds were unsuccessful but appellant ultimately succeeded on appeal – Whether costs should be awarded to the appellant – Whether costs should be limited based on the extent of the appellant’s success on appeal – Fixing costs – Appropriate basis upon which to fix costs

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

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

s 102, s 107

Australian Conservation Foundation Inc v Forestry Commission of Tasmania (1988) 81 ALR 166
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304.

Cretazzo v Lombardi (1975) 13 SASR 4

Gillham v Kernohan Construction Pty Ltd [2022] QCATA 19

Lyons v Dreamstarter Pty Ltd [2012] QCATA 71.

Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15
Partington v Urquhart (No. 4) [2019] QCATA 96.
Short v Crawley (No 40) [2008] NSWSC 1302
Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256

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)

Applicant:

Queensland Legal

Respondent:

Bathersby Legal

REASONS FOR DECISION

Mr Gillham was successful in appealing the decision of the Tribunal in a proceeding for a building dispute.[1] The costs of the appeal fall to be determined.
[1]Gillham v Kernohan Construction Pty Ltd [2022] QCATA 19.
The tribunal may award costs in a proceeding for a building dispute.[2] This power extends to appeal proceedings.[3] The power to award costs requires the exercise of a broad general discretion not upon irrelevant or extraneous considerations but upon facts connected with or leading up to the litigation.[4]
[2]Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(h).
[3]Partington v Urquhart (No. 4) [2019] QCATA 96.
[4]Lyons v Dreamstarter Pty Ltd [2012] QCATA 71.
The parties’ submissions
Mr Gillham says that the costs of the proceeding below have not been determined, the tribunal ordering that the question of costs be adjourned pending the determination of the appeal. Mr Gillham says that the submissions on costs in the proceeding below are relevant to the determination…

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: [2024] QCATA 59
Decision Date: 23 May 2024

CaseChat Overview and Summary

The appeal in Gillham v Kernohan Construction Pty Ltd (No. 3) before the New South Wales Court of Appeal involved the appellant, Austin Gillham, and the respondent, Kernohan Constructions Pty Ltd t/as Kernohan Constructions. The primary dispute centred around the costs incurred during the appeal, particularly the extent to which the appellant was entitled to recover costs given that he was only partially successful in his appeal. The matter was remitted to the lower court for the determination of costs in the proceeding BDL116-14.

The court was tasked with determining whether the costs incurred by the appellant during the appeal should be awarded to him in full, given that he was successful on the main appeal. A secondary issue was whether the costs should be proportionately reduced to reflect the extent of the appellant’s success on the appeal. The court needed to establish the appropriate basis for fixing the costs, particularly in light of the appellant's partial success.

In resolving these issues, the court found that despite the appellant's partial success, he was entitled to full costs of the appeal. The reasoning was grounded in the principle that the successful party in an appeal is generally entitled to costs unless there are exceptional circumstances. The court highlighted that the appellant had succeeded on the main ground of appeal, which was significant enough to warrant the award of full costs. The court further noted that the partial nature of the success did not negate the appellant's entitlement to full costs, as the principle of costs following the event applied.

The final orders of the court mandated that Kernohan Constructions Pty Ltd t/as Kernohan Constructions pay the appellant's costs of the appeal, fixed at $10,169.00, within fourteen days. Additionally, the proceeding was remitted to the lower court for the determination of costs in the proceeding BDL116-14, reflecting the court's approach to comprehensively address all cost-related matters.

Orders

Orders of the court

1. Kernohan Constructions Pty Ltd t/as Kernohan Constructions must pay Austin Gillham’s costs of the appeal fixed in the amount of $10,169.00 within fourteen (14) days.

2. The proceeding is remitted for the determination of costs in proceeding BDL116-14.

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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