Hill-Douglas v Area Square Pty Ltd
[2012] QCATA 68
•2 May 2012
| CITATION: | Hill-Douglas v Area Square Pty Ltd [2012] QCATA 068 |
| PARTIES: | Sholto Hill-Douglas Louise Hill-Douglas (Applicants/Appellants) |
| v | |
| Area Square Pty Ltd t/as Graceville Builders (Respondent) |
| APPLICATION NUMBER: | APL012-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 2 May 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. That the Applicants pay the Respondent’s costs associated with the application for leave to appeal and the appeal on the standard basis up to 10 May 2010 and on an indemnity basis thereafter, calculated by reference to the scales applying in the District Court of Queensland; 2. That the Respondent lodge, and give to the Applicants, particulars of the costs claimed and the manner of calculation within 28 days; 3. That the Applicants respond, by lodging and giving to the Respondent’s legal representatives, any submissions they wish to make in response within 28 days thereafter; 4. Thereafter the Tribunal will, if possible, fix the Respondent’s costs; and, 5. That the Applicants’ application for costs associated with their application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – APPLICATION FOR COSTS – BUILDING DISPUTE – where the Respondent had been ordered to pay the Applicants a sum of money following a Tribunal hearing – where the Applicants were refused leave to appeal that decision – where the Respondent sought costs of the appeal process – where the Respondent had offered to settle the application for leave to appeal – whether the interests of justice require the imposition of a costs order Queensland Civil and Administrative Tribunal Act 2009, ss 3, 4, 32, 100, 102, 107, 142, Chapter 2 Part 6 Bottoms v Raser [2000] QSC 413 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This appeal concerned a building case arising out of the construction of a home at Toowong for Mr and Mrs Hill-Douglas by Area Square. The proceedings went to a hearing before a Senior Member of this Tribunal on 10 and 11 December 2009. On 20 January 2010 he ordered, with Reasons, that Area Square pay Mr and Mrs Hill-Douglas the sum of $5,944.31.
Mr and Mrs Hill sought leave to appeal. In a decision published on 23 November 2010 the QCAT Appeal Tribunal refused leave.
Area Square seeks its costs of the appeal proceeding. Costs were also sought by both parties in the original building case (BD017-08) and the parties exchanged written submissions. On 24 March 2011 I ordered, in this appeal, that any party file any application in relation to costs, and submissions about them, by 15 July 2011.
So many applications have been filed in this matter by, in particular, Mr and Mrs Hill-Douglas, and so much in the way of written submissions that it is difficult to discern whether they also seek costs in the appeal. In line, however, with ss 3 and 4 of the QCAT Act, with their emphasis on informality and speed, I think it is appropriate to treat the present proceeding as an application by both parties for costs associated with the appeal.
The appeal by Mr and Mrs Hill-Douglas was instituted in QCAT and the cost provisions of the QCAT Act apply: Chapter 2, Part 6. Section 100 of the QCAT Act provides that (other than as provided under the Act itself or an enabling Act), ‘…each party to a proceeding must bear the party’s own costs for the proceeding’. Under s 102 the Tribunal may, however, make an order requiring a party to pay some or all of the costs of another party ‘…if the tribunal considers the interests of justice require it to make the order’. Under s 102(3) the Tribunal, when deciding whether to award costs, may have regard to certain factors including the conduct of the parties; the nature and complexity of the dispute; the relative strengths of each parties claims; and, anything else the Tribunal considers relevant.
This was an application by Mr and Mrs Hill-Douglas for leave to appeal a decision of a Senior Member of QCAT, after a compulsory conference in which a significant number of the issues in dispute in the building case had been resolved by agreement, and the balance went to a hearing before the Senior Member lasting two days. The learned Senior Member’s Reasons, published on 20 January 2010, addressed the remaining issues over twelve pages and involved findings for the builder in connection with a claim for $12,000 about the costs of a driveway; for Mr and Mrs Hill-Douglas in their claim for rectification of a swimming pool in the sum of $17,944.31; and, ultimately, resulted in an order that the builder pay Mr and Mrs Hill-Douglas the difference of $5,944.31.
Area Square succeeded in the appeal, in the sense that Mr and Mrs Hill-Douglas did not pass the preliminary stage of establishing a right to a grant of leave to have the appeal heard and determined.
The imposition of a requirement that leave be obtained, as in the QCAT legislation, generally suggests a concern on the part of the legislature to constrain appeals. The grounds upon which Mr and Mrs Hill-Douglas sought leave were wide-ranging but included, in particular, a claim that new evidence should be considered by the Appeal Tribunal, and attacks upon credit findings made by the Senior Member who heard and determined the matter.
The original findings that were the subject of attacks were:
(a) That the original decision was wrong, in connection with a variation to the contract, in the findings the Senior Member made and the legal conclusions he reached;
(b) That he was also wrong in his findings about the driveway which, it was again said, were against the evidence and the weight of evidence; and,
(c) That the Senior Member was also wrong in determining that no loss had been suffered in connection with a dispute about cornices.
In each instance the Appeal Tribunal was not persuaded that the conclusions of the learned Senior Member were against the evidence, or the weight of evidence, or involved any mistake of law. The Appeal Tribunal concluded that Mr and Mrs Hill-Douglas were unable to show that any error in the original decision required interference with it.
It is also relevant that, on 10 May 2010, Area Square offered to settle Mr and Mrs Hill-Douglas’ application for leave to appeal on the basis that it was withdrawn but, also, that Area Square would pay Mr and Mrs Hill-Douglas’ costs associated with it.
Under QCAT Rule 86 a written offer to settle can be made and if, in the opinion of the Tribunal, the decision in the proceeding is not more favourable to the other party than the offer, the Tribunal may award ‘all reasonable costs’ incurred in conducting the proceeding after the offer was made. The phrase ‘all reasonable costs’ has, in other legislation, been construed to mean costs on an indemnity basis.[1]
[1]Colgate Palm-Olive Co v Cussens Pty Ltd (1992) 118 ALR 248; Bottoms v Raser [2000] QSC 413; Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412.
Rule 86 is promulgated under s 105 of the QCAT Act, which provides that the rules may authorise the Tribunal to award costs in other circumstances including (in particular) if an offer to settle has been made, but not accepted.
The requirement in s 142(3)(b) of the QCAT Act that an appeal to the Appeal Tribunal on a question of fact or a question of mixed law and fact can only be made with leave places an obligation upon an applicant for leave to demonstrate not only that the Tribunal has erred but also that the question is one of general importance, or something which the public interest requires, should be the subject of the further argument and the decision of an appeal body.
As the Reasons of the Appeal Tribunal show, Mr and Mrs Hill-Douglas were unable to meet those criteria and, indeed, made little attempt to do so.
Under s 102(3)(c) of the QCAT Act ,one of the factors the Appeal Tribunal may consider when deciding whether or not the interests of justice require the imposition of a costs order is the relative strength of the claims made by each party. The fact their application for leave was refused suggests, with some force, that their case on appeal was not a strong one.
Further Area Square’s offer to settle was, as the result shows, a generous one. Mr and Mrs Hill-Douglas could have avoided the expense and delay associated with the subsequent failure of their application for leave and, in fact, recovered the costs they had incurred up to that time in that application, and their appeal. It is compelling that, in these circumstances, Area Square ought to have its costs on an indemnity basis.
As to the costs associated with the application for leave to appeal prior to that time, the fact that the legislation turns its face against excessive or unwarranted appeals also points to the conclusion of Mr and Mrs Hill-Douglas ought to pay Area Square’s costs associated with the application for leave to appeal, before the offer was made, on the standard basis.
Under s 107 of the QCAT Act, the Tribunal, if it makes a costs order, must fix the costs if that is possible. If it is not possible, the Tribunal may make an order requiring costs to be assessed, and in a way which relates to scales under rules of court.
Area Square should have its costs of and incidental to the application for leave to appeal and the appeal on the standard basis up to 10 May 2010, and on an indemnity basis thereafter. Because of the terms in which Mr and Mrs Hill-Douglas’s application for leave to appeal were couched, it was necessary for Area Square and its legal advisors to prepare lengthy and detailed submissions addressing their claims which, if successful, involved sums which were within the monetary jurisdiction of the District Court of Queensland at the relevant times. The costs should, then, be assessed with reference to the scales applying in that Court.
It is appropriate, in light of s 107, to also direct that Area Square lodge, and give to Mr and Mrs Hill-Douglas, particulars of the costs they claim and the manner of calculation within 28 days; and, that Mr and Mrs Hill-Douglas be able to respond, by lodging and giving to Area Square’s legal representatives, any submissions they wish to make in response within 28 days thereafter.
It will be apparent, in light of these conclusions, that any application by Mr and Mrs Hill-Douglas for their costs associated with their application for leave to appeal must fail.
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