Golding v Lusping Pty Ltd No 3 - [2021] QCATA 4

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Golding v Lusping Pty Ltd No 3 [2021] QCATA 4

PARTIES:

PAUL HENRY GOLDING

(applicant)

v

LUSPING PTY LTD

(respondent)

APPLICATION NO:

APL340-19

ORIGINATING APPLICATION NO:

OCL075-18

MATTER TYPE:

Appeal

DELIVERED ON:

12 January 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard
Member Lumb

ORDERS:

1. Each of the parties must bear the party’s own costs of the Application for Leave to Appeal and Appeal.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY - where appellant partly successful on appeal – where partial relief granted to appellant –whether an order for costs should be made in favour of appellant for his filing fees- whether an order for costs should be made in favour of the legally represented respondent – whether in the interests of justice to make a costs order

District Court of Queensland Act 1967 (Qld), s 118(3)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 and s 107.

Challen v Golder Associates Pty Ltd [2012] QCA 307
Challen v Golder Associates Pty Ltd [2012] QCA 339
Chandra v Queensland Building and Construction Commission [2016] QCATA 53
Colagrande & Ors v D A Radic Pty Ltd trading as David Radic Prestige Homes [2020] QCATA 86
Nichols v Earth Spirit Homes Pty Ltd [2014] QCATA 260

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Butler McDermott Lawyers

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

Introduction

In this matter:
(a)by a decision dated 10 September 2020 (‘the primary appeal decision’),[1] the Appeal Tribunal granted leave to appeal to the applicant (‘Mr Golding’), directed the filing of written submissions, and reserved the question of costs; and
(b)by a decision dated 30 October 2020,[2] the Appeal Tribunal allowed the appeal of Mr Golding, made a declaration as to the proper construction of the Residence Contract between the parties, made an order as to the basis upon which future charges payable by Mr Golding under the Residence Contract would be calculated, ordered that the respondent (‘the Operator’) pay to Mr Golding the sum of $227.40 within 14 days of the date of delivery of the reasons, and directed that the parties file written submissions in relation to the question of costs.
[1]Golding v Lusping Pty Ltd [2020] QCATA 134.
[2]Golding v Lusping Pty Ltd No 2 [2020] QCATA 150.
Mr Golding’s success on the appeal can be described as a partial success. He secured orders in his favour but not the full relief sought which primarily involved an order that the Residence Contract be set aside.
Both parties seek a costs order against the other.
Mr Golding, who was self-represented, seeks the filing fee for both the Original Application and the Application for Leave to Appeal and Appeal (‘the appeal proceeding’).
Although it…

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: [2021] QCATA 4
Decision Date: 12 January 2021

CaseChat Overview and Summary

In Golding v Lusping Pty Ltd No 3, the appeal centred around the issue of costs in civil proceedings. The appellant, Golding, was partly successful in their appeal against Lusping Pty Ltd, a company legally represented in the case. The dispute arose from the refusal of the Queensland Civil and Administrative Tribunal (QCAT) to award costs to either party despite Golding's partial success. The primary legal issues before the court were whether the appellant should receive an order for costs in relation to the filing fees, and if it was just to make an order for costs in favour of the legally represented respondent.

The court examined the statutory framework under which costs may be awarded, particularly section 102 of the QCAT Act, which requires a demonstration that it is in the interests of justice to do so. Neither party presented a compelling argument for such a demonstration. The respondent did not quantify its costs or provide an assessment on the standard or indemnity basis, nor did it argue that it was not possible for the Appeal Tribunal to fix costs. Consequently, the court held that neither party had shown that it was in the interests of justice to award costs to them.

Given the lack of a demonstration that it was just to award costs, the court determined that each party should bear its own costs of the application for leave to appeal and the appeal itself. This decision was made pursuant to section 100 of the QCAT Act. The court concluded that neither party had met the threshold required for a costs order under the statutory provisions considered.

In accordance with the court's findings, it was ordered that each party must bear its own costs of the application for leave to appeal and the appeal. This outcome ensures that the financial burden of the proceedings is borne by the parties themselves, as neither was able to satisfy the conditions necessary for a costs order.

Orders

Orders of the court

1. Each of the parties must bear the party’s own costs of the Application for Leave to Appeal and Appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Operator did not attempt to quantify its costs and provide a reasonable assessment of its costs on the respective standard and indemnity bases of assessment. Nor did the Operator submit that it was not possible for the Appeal Tribunal to fix costs. Conclusions and orders For the above reasons, we find that:(a)neither party has demonstrated that it is in the interests of justice under s 102 of the QCAT Act that there be an award of costs in favour of that party; and(b)pursuant to s 100, each of the parties must bear the party’s own costs of the application for leave to appeal and appeal. We make orders accordingly.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Golding v Lusping Pty Ltd No 3 [2021] QCATA 4
PARTIES:	PAUL HENRY GOLDING (applicant)
v
LUSPING PTY LTD (respondent)
APPLICATION NO:	APL340-19
ORIGINATING APPLICATION NO:	OCL075-18
MATTER TYPE:	Appeal
DELIVERED ON:	12 January 2021
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Howard Member Lumb
ORDERS:	1. Each of the parties must bear the party’s own costs of the Application for Leave to Appeal and Appeal.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY - where appellant partly successful on appeal – where partial relief granted to appellant –whether an order for costs should be made in favour of appellant for his filing fees- whether an order for costs should be made in favour of the legally represented respondent – whether in the interests of justice to make a costs order District Court of Queensland Act 1967 (Qld), s 118(3) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 and s 107. Challen v Golder Associates Pty Ltd [2012] QCA 307 Challen v Golder Associates Pty Ltd [2012] QCA 339 Chandra v Queensland Building and Construction Commission [2016] QCATA 53 Colagrande & Ors v D A Radic Pty Ltd trading as David Radic Prestige Homes [2020] QCATA 86 Nichols v Earth Spirit Homes Pty Ltd [2014] QCATA 260
REPRESENTATION:
Applicant:	Self-represented
Respondent:	Butler McDermott Lawyers
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).