Greg Black Constructions Pty Ltd v Brodie
[2012] QCATA 165
•6 September 2012
| CITATION: | Greg Black Constructions Pty Ltd v Brodie and Anor [2012] QCATA 165 |
| PARTIES: | Greg Black Constructions Pty Ltd t/a Greg Black Constructions (Appellant) |
| v | |
| Miles Brodie Suzanne Holt (Respondents) |
| APPLICATION NUMBER: | APL018-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Jeremy Gordon, Member |
| DELIVERED ON: | 6 September 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Both parties’ applications for costs of the appeal are dismissed. |
| CATCHWORDS: | APPLICATION FOR COSTS – appeal against Member’s refusal to direct further and better particulars be served – subsequent QCAT order effectively directing such particulars, and therefore rendering appeal nugatory – appeal discontinued – whether appellant is entitled to costs Queensland Civil and Administrative Tribunal Act 2009, ss 4, 28, 29 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Richard Oliver, Senior Member
In this matter the Appeal Tribunal consisted of Mr Gordon, QCAT Member and me, I have had the benefit of reading his reasons in draft. I agree with his reasons, and his conclusions, and the order he proposes.
Jeremy Gordon, Member
The parties are agreed that this appeal should be discontinued. The parties have not agreed the question of costs of the appeal. The parties are both legally represented and each is now asking for their costs of the appeal to be paid by the other.
Background to the decision appealed against
On 31 August 2011 Greg Black Constructions Pty Ltd (GBC) filed a domestic building dispute claim against Mr Brodie and Ms Holt (B&H). On 19 September 2011 B&H filed a response and counter-application against GBC. On 6 October 2011 GBC filed a response to B&H’s counter-application. On 31 October 2011 directions were given in the proceedings including the listing of a compulsory conference in Toowoomba on 6 February 2012.
On 22 November 2011 B&H applied to QCAT seeking an order for 14 particulars requested in respect of GBC’s claim and 16 particulars requested in respect of GBC’s response to B&H’s counter-application. The reason for seeking the particulars was stated in the application to be that without them B&H were “left to guess at the case it is that they have to meet”.
On 21 December 2011 the application for particulars was considered by a Member who refused it on the grounds that:
(a)it was an overly technical approach to dispute resolution given the Tribunal’s emphasis on ADR and quick and accessible justice; and
(b)that the application was premature because the parties would have the opportunity to identify the issues, and the questions of fact and law that need the Tribunal’s attention, at the compulsory conference in February; and
(c)the particulars were not needed prior to that compulsory conference because it was likely that the conference would identify the issues.
The learned Member also pointed out that from the material filed to date it was apparent that B&H did understand the nature (if not the detail) of the assertions made against them and the legal implications of those assertions, being matters which the Tribunal should ensure they understood[1]. Having reviewed the file relating to the domestic building dispute for the purpose of this appeal we agree with this conclusion.
[1] By s 29(1)(a)(ii) of the QCAT Act.
The Member conducting the conference on 6 February 2012, directed (amongst other things) that GBC’s amended claim had to be filed by 27 February 2012 and that it had to provide the particulars sought by B&H. Affidavit evidence filed by GBC’s solicitors for other purposes explains that it was GBC’s plan to ask at the compulsory conference for such leave and that B&H were aware of this[2]. The exhibited correspondence shows that GBC had indicated back on 14 October 2011 that they wished to amend the domestic building dispute claim, and that such an amendment would include all the particulars requested by B&H. In subsequent correspondence between the respective solicitors there was disagreement about the precise scope of any amendment and this is why the amendment was not completed by consent between the parties. If there had been agreement about the scope of the amendment, the amendment would have been made much earlier and B&H would have received the particulars they requested in that manner.
[2] Affidavit of David Andrew Shaw sworn on 23 March 2012.
The approach taken by the learned Member in refusing the application for particulars was consistent with the QCAT Act. In particular, it was consistent with QCAT’s statutory obligations to encourage the early and economical resolution of disputes before it[3], to ensure proceedings are conducted in an informal way that minimises costs to the parties[4], and to act with as little formality and technicality as an enabling Act or the rules and a proper consideration of the case permit[5]. It was also consistent with QCAT not being bound by practice and procedure applying to courts of record[6].
[3] Section 4(b).
[4] Section 4(c).
[5] Section 28(3)(d).
[6] Section 28(3)(b).
In any case, it would have been pointless to order particulars of the domestic building dispute claim filed on 31 August 2011 bearing in mind GBC wished to amend the claim, and had indicated that the amended claim would contain the particulars requested. It would also have been potentially time and cost wasting to have made any order relating to particulars prior to the compulsory conference.
Should GBC be ordered to pay B&H’s costs of the appeal?
[10] In the circumstances set out above, had the appeal against the learned Member’s decision proceeded, it is unlikely that it would have succeeded.
[11] It follows that B&H are not entitled to their costs in the appeal.
Should B&H be ordered to pay GBC’s costs of the appeal?
[12] The appeal was brought on 20 January 2012. It was supported by an affidavit sworn on 1 February 2012. On 6 February 2012 it was rendered nugatory by the order made in the compulsory conference. It does not appear from the appeal file that GBC had incurred any significant costs in dealing with the appeal up to 6 February 2012.
[13] B&H however, did not leave the matter there. They sought their costs in the appeal and directions were made for submissions to be lodged by both parties. Hence GBC incurred costs in dealing with B&H’s application for costs in the appeal.
[14] In section 100 of the QCAT Act there is a strong indication that in QCAT each side should bear their own costs. However this rule is prefaced by the words “other than as provided .. in an enabling Act”. It was held in Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 that QCAT’s jurisdiction in building disputes derives from an enabling Act, the Queensland Building Services Authority Act1991, and in section 77(2) of that Act QCAT is given the power to award costs. Therefore this gives QCAT a broad general power to award costs and the usual rule in QCAT is displaced[7].
[7] Paragraphs [33] and [34].
[15] On the face of it, GBC might be entitled to its costs in the appeal. However the evidence filed by the solicitors for B&H[8] indicates that the wrong version of the original application was lodged by GBC’s solicitors on 31 August 2011 by mistake, and it contained a lot of errors. It would appear that this is why the claim was unclear to B&H, and at least part of the reason why they required particulars of it, and it explains why directions were made permitting its amendment.
[8] Affidavit of Benjamin James Gouldson sworn on 13 March 2012.
[16] This evidence has not been refuted by GBC, and in those circumstances it would not be just to order B&H to pay GBC’s costs of the appeal. This is because if the correct claim properly particularised had been lodged in the first place, there would have been no need for particulars and there would have been no appeal against the Tribunal’s refusal to order the particulars.
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