Grasso & Anor v CMG Consulting Engineers Pty Ltd (No 2)
[2011] QCATA 326
•23 November 2011
| CITATION: | Grasso & Anor v CMG Consulting Engineers Pty Ltd (No 2) [2011] QCATA 326 |
| PARTIES: | Steven Grasso Diane Grasso (Applicants/Appellants) |
| v | |
| CMG Consulting Engineers Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL264-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 23 November 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Respondent’s solicitors submit a claim for their client’s costs of and incidental to the failed application for leave to appeal, with particulars. 2. The Respondent file and serve submissions on costs and an affidavit with those particulars within 14 days. 3. The Applicants should file any submissions on costs in response within 14 days thereafter. |
| CATCHWORDS: | COSTS – COSTS OF APPEAL – Where the respondent sought an order for costs of, and incidental to, the application and application for leave to appeal – Whether appropriate to address costs here – Where not appropriate to address costs here – Where respondent can make its case in the proceedings when the matter is finally determined Uniform Civil Procedure Rules 1999, r 681(1) Grasso & Anor v CMG Consulting Engineers Pty Ltd [2011] QCAT 306, cited Queensland Building Services Authority v Johnston [2011] QCATA 265, cited Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
This long running building case concerns Mr and Mrs Grasso’s home at Innisfail, constructed in 1999. They commenced proceedings in QCAT’s predecessor, the Commercial and Consumer Tribunal in 2008.
The CCT and, later, QCAT have made numerous directions about evidence including, relevantly and in particular, expert evidence[1]. On 25 May 2011 Mr and Mrs Grasso applied for leave to file an amended Statement of Claim. The changes to it arose from the evidence of a new expert they had engaged, Mr Wright.
[1]Directions orders 18 June 2009, 7 August 2009, 9 September 2009, 23 September 2009, 23 March 2010, 19 May 2010, 25 June 2010, 24 August 2010, 15 September 2010, 28 October 2010, 22 February 2011 and 18 April 2011.
Their application for leave to amend was determined on the papers by a QCAT Member on 5 July 2011. In her published reasons[2] the learned Member concluded that the lengthy history of the proceeding (including the numerous directions already given about expert evidence); the fact that it had been through an expert conclave process in late 2010; and, the fact that it was ready to be listed for hearing were all strong grounds for refusing any amendment, as she did.
[2] Grasso & Anor v CMG Consulting Engineers Pty Ltd [2011] QCAT 306.
Mr and Mrs Grasso sought leave to appeal that decision. That matter was also determined on the papers and I refused leave, with reasons, on 16 September 2011[3].
[3] Grasso & Anor v CMG consulting Engineers Pty Ltd [2011] QCATA 244.
CMG has sought an order for its costs of and incidental to the application determined by Member Stilgoe, and the application for leave to appeal.
No order for costs was made by the learned Member. It is unclear whether they were sought. In any event, her reasons, and her order, are silent. In those circumstances, and because CMG will have the opportunity to make its case for an order for costs in the proceeding itself when the matter is finally determined, it is not appropriate to address those costs here.
As to the costs of and incidental to the application for leave to appeal, it is material that the matter had been commenced before QCAT’s predecessor the CCT and was, when QCAT commenced on 1 December 2009, a ‘pending proceeding’ under s 245 of the QCAT Act. Under s 271, QCAT must deal with the existing proceeding (which includes a pending proceeding), under the QCAT Act and can only make a decision the CCT could have made in relation to the matter under the legislation which governed that Tribunal.
As the Appeal Tribunal has identified in a previous matter[4], s 271 should not be read in a way which results in the application of the costs provisions of the Commercial and Consumer Tribunal Act 2003 but, rather, to mean that while QCAT only has the power in pending proceedings which the CCT had (including the power to award costs), the question whether costs should be awarded must be determined by reference to the QCAT costs provisions.
[4] Queensland Building Services Authority v Johnston [2011] QCATA 265.
Those provisions (Ch 2, Pt 6, Div 6) commence with s 100 which, on its face, indicates a plain intention that costs orders will not be an integral feature of QCAT’s operations: ‘other than as provided under this Act or an Enabling Act, each party to a proceeding must bear the party’s own costs for that proceeding’.
[10] Under s 102, however, the Tribunal may make an order for costs ‘… if the Tribunal considers the interests of justice require it to make the order’: s 102(1). Under s 102(3) in deciding whether to award costs the Tribunal may have regard to certain matters including:
a)Whether a party in a proceeding is acting in a way that unnecessarily disadvantages another party;
b)The nature and complexity of the dispute;
c)The relative strengths of the claims made by each party;
d)…
e)The financial circumstances of the parties;
f)Anything else the Tribunal considers relevant.
[11] As the QCAT Appeal Tribunal has, again, observed about these provisions, the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ points so compellingly to a costs order that they overcome the strong contra-indication against costs orders contained in s 100[5] at para [29].
[5]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412.
[12] The factors material to the discretion here include the long history of the matter including, in particular, the many directions orders previously made about expert evidence; the occurrence of an experts’ conclave in late 2010; the time at which the application for leave to amend was brought – in particular, the fact that it was very late (in the colourful words of the presiding Member who determined the application for leave to amend: ‘it is less of a case of changing horses midstream as changing them when the finishing post is in sight’); the fact that the appeal was brought from an interlocutory order; and, that the costs now sought relate to an attempt to appeal that interlocutory order.
[13] The last factor is, in my view, relevant. While QCAT operates in different statutory costs environment from the civil courts, it has been accepted there that costs in an appeal may be viewed differently from costs in a proceeding – because, if the appellant fails, the respondent has had to face the additional burden and expense of the appeal, in litigation in which he or she has, already, been successful[6]. This is a matter the QCAT Appeal Tribunal is entitled to take into account, under s 102(3)(f) of the QCAT Act.
[6] Uniform Civil Procedure Rules 1999, r 681(1).
[14] In conjunction, these factors point strongly towards an exercise of the discretion in the respondent’s favour. In addition, as Keane JA observed in Tamawood Ltd & Anor v Paans [2005] QCA 111 at [30], the fact that each party was justified in engaging legal representatives may, in some circumstances, be itself a sufficient basis for concluding that the interests of justice warrant the exercise of discretion to award costs in favour of the successful party, at least in the absence of any countervailing consideration. No such consideration arises here.
[15] As to the appropriate measure of costs, s 107(1) of the QCAT Act requires that the Tribunal must fix the costs if possible. In their submissions the respondent’s solicitor made a claim for costs of $11,882 but these included the costs of the original application, and were calculated on an indemnity basis. The history of the matter, the circumstances of the original application, and the fact this was an application for leave to appeal against an interim order mean that costs on an indemnity basis are not inappropriate.
[16] The respondent’s solicitors ought submit a claim for their client’s costs of and incidental to the failed application for leave to appeal, with particulars. It is necessary to observe that the affidavit and particulars which accompanied their previous submissions in support of costs were not, with respect, helpful; it was difficult to see how the costs were calculated, and which items were claimed.
[17] The respondent’s solicitors should file and serve submissions and an affidavit with those particulars within 14 days; the applicants should file their submissions in response within 14 days thereafter. I will then determine if costs can be fixed, and the amount; or, make another order.
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