Helu v Yuan (No 2) - [2023] QCATA 83

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Helu v Yuan (No 2) [2023] QCATA 83

PARTIES:

PAUL HELU

(applicant/appellant)

v

HONGWEN YUAN

(respondent)

APPLICATION NO/S:

APL098-21

ORIGINATING APPLICATION NO/S:

BDL176-19

MATTER TYPE:

Appeals

DELIVERED ON:

24 March 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1. Hongwen Yuan must pay to Paul Helu 80% of Paul Helu’s costs of the Appeal to be agreed or failing agreement to be assessed on the standard basis on the Magistrates Court Scale, schedule 2, part 3 of the Uniform Civil Procedure Rules 1999, as if the appeal had proceeded in that Court.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – GENERALLY – where the applicant was substantially successful in the appeal – where both parties seek costs – where the respondent made an offer more favourable than the final decision of the Appeal Tribunal – where the respondent’s offer was made after the appeal hearing but before the final decision of the Appeal Tribunal – whether costs should be awarded – whether there should be a reduction in costs

Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(h)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 105, s 146, s 147
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 86

Uniform Civil Procedure Rules 1999 (Qld), r 361

Helu v Yuan [2023] QCATA 12
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
Steven Bryan Worthington t/as Worthington Simmons Builders v Dr Andrew William Ryan; Dr Andrew William Ryan v Steven Bryan Worthington t/as Worthington Simmons Builders [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)

Applicant:

A J & Co

Respondent:

Dimension Legal

REASONS FOR DECISION

On 10 February 2023 I delivered my decision in the appeal (the substantive decision).[1] I directed the parties to file submissions on costs. The costs of the appeal fall to be determined.
[1]Helu v Yuan [2023] QCATA 12.
Mr Helu was originally ordered to pay to Mr Yuan $59,010 for damages for breach of contract. It was not disputed below or in the appeal that Mr Helu had built a swimming pool and spa for Mr Yuan that did not accord with the dimensions specified in the contract. The learned member found, at first instance, that Mr Yuan was entitled to damages for the cost of demolishing and rebuilding the pool and spa. It was not contentious in the appeal that, in assessing Mr Yuan’s entitlement to damages, the learned member failed to make allowance for the unpaid balance of the contract price. In the end result, in allowing the appeal, the decision regarding damages at first instance was set aside and Mr Helu was ordered to pay to Mr Yuan damages in the amount of…

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 Helu v Yuan (No 2)

Details

AGLC: Helu v Yuan (No 2) [2023] QCATA 83
Case: [2023] QCATA 83
Decision Date: 24 March 2023

CaseChat Overview and Summary

This case, Helu v Yuan (No 2), was heard in the Queensland Civil and Administrative Tribunal Appeal Division. The matter involved a dispute between Paul Helu and Hongwen Yuan, which originated in the Queensland Civil and Administrative Tribunal (QCAT). Mr Helu was substantially successful in his appeal, and both parties sought costs. Mr Yuan made an offer more favourable than the final decision of the Appeal Tribunal, which was made after the appeal hearing but before the final decision. The court was tasked with determining whether costs should be awarded and whether there should be a reduction in costs based on the offer made by Mr Yuan.

The court examined three offers made by Mr Yuan to Mr Helu during the proceedings. The first offer, dated 7 July 2020, was not relevant to the costs of the appeal as it was made during the proceeding below. The second offer, dated 30 September 2021, was not more favourable than the final decision of the Appeal Tribunal, and therefore it was also not relevant. The third offer, dated 11 April 2022, was more favourable than the final decision of the Appeal Tribunal. The offer was made after the appeal hearing but before the final decision. The court considered Section 105 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and Rule 86 of the QCAT Rules in its determination.

The court found that the third offer was indeed an offer within the scope of Rule 86, it was not accepted by Mr Helu within the time the offer was open, and the decision of the Appeal Tribunal was not more favourable than the third offer. The court applied Rule 86(2), which provides that the tribunal may award to the offeror all reasonable costs incurred by the offeror in conducting the proceeding after the offer was made. However, the court noted that the making of an offer by a respondent which is more favourable to an applicant than the final result is a relevant consideration in determining costs, but it is not the only or indeed the most important consideration.

In conclusion, the court ordered that Hongwen Yuan must pay to Paul Helu 80% of Paul Helu's costs of the Appeal to be agreed or failing agreement to be assessed on the standard basis on the Magistrates Court Scale, schedule 2, part 3 of the Uniform Civil Procedure Rules 1999, as if the appeal had proceeded in that Court. This decision acknowledges the importance of offers made during proceedings and their impact on costs but also recognises that other factors may be taken into account in determining the final costs order.

Orders

Orders of the court

1. Hongwen Yuan must pay to Paul Helu 80% of Paul Helu’s costs of the Appeal to be agreed or failing agreement to be assessed on the standard basis on the Magistrates Court Scale, schedule 2, part 3 of the Uniform Civil Procedure Rules 1999, as if the appeal had proceeded in that Court.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Mr Yuan relies upon three (3) broad contentions:(a)It is in the interests of justice that or Mr Helu to pay his costs as a consequence of the way in which Mr Helu conducted the proceedings;(b)Mr Helu’s ‘main appeal ground’ was without legal or evidential basis;(c)The decision of the Appeal Tribunal was more favourable than a Calderbank offer made by Mr Yuan and rejected by Mr Helu. Consideration Mr Yuan refers to three (3) offers made in the course of the proceeding below and in the appeal:(a)An offer dated 7 July 2020 that Mr Helu pay to Mr Yuan $30,000;(b)An offer dated 30 September 2021 that Mr Helu pay to Mr Yuan $48,000;(c)An offer dated 11 April 2022 that Mr Helu pay to Mr Yuan $18,000. The first offer was made in the course of the proceeding below. It is not relevant in deciding the costs of the appeal. The second offer was not more favourable than the final decision of the Appeal Tribunal. It is not relevant in deciding the costs of the appeal. The third offer was more favourable than the final decision of the Appeal Tribunal. The offer was made after the appeal hearing and before the final decision. Section 105 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that the QCAT Rules may authorise the tribunal to award costs in other circumstances, including, for example, the payment of costs in a proceeding if an offer to settle the dispute the subject of the proceeding has been made but not accepted. Rule 86 of the QCAT Rules provides:(1) This rule applies if—(a)a party to a proceeding, other than a proceeding for a minor civil dispute, makes another party to the proceeding a written offer to settle the dispute the subject of the proceeding; and(b)the other party does not accept the offer within the time the offer is open; and(c)in the opinion of the tribunal, the decision of the tribunal in the proceeding is not more favourable to the other party than the offer.(2) The tribunal may award the party who made the offer all reasonable costs incurred by that party in conducting the proceeding after the offer was made.(3) If a proceeding involves more than 2 parties, this rule applies only if the acceptance of the offer would have resulted in the settlement of the matters in dispute between all the parties.(4) In deciding whether a decision is or is not more favourable to a party than an offer, the tribunal must—(a)take into account any costs it would have awarded on the date the offer was given to the other party; and(b)disregard any interest or costs it awarded relating to any period after the date the offer was given to the other party. I accept that:(a)The third offer is an offer within r 86;(b)The third offer was not accepted by Mr Helu within the time the offer was open;(c)The decision of the Appeal Tribunal is not more favourable than the third offer. Rule 86(2) provides that the tribunal may award to the offeror all reasonable costs incurred by the offeror in conducting the proceeding after the offer was made. In this respect, r 86 differs from r 361 of the Uniform Civil Procedure Rules 1999 (Qld) which mandates an order for costs in the defendant’s favour from the date of an offer to settle in circumstances where the outcome is not more favourable to the plaintiff. Accordingly, the making of an offer by a respondent which is more favourable to an applicant than the final result is a relevant consideration in determining costs, but it is not the only or indeed the most important consideration.