Jones v Rutch Constructions Pty Ltd No 2 - [2022] QCAT 213

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Jones and Anor v Rutch Constructions Pty Ltd No 2 [2022] QCAT 213

PARTIES:

ERIC JONES AND LORRAINE ANN JOHNSTON

(applicant)

RUTCH CONSTRUCTIONS PTY LIMITED

(respondent)

APPLICATION NO/S:

BDL256-19

MATTER TYPE:

Building matters

DELIVERED ON:

8 June 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

ORDERS:

The Tribunal orders:

The Respondent pay the Applicants’ costs of and incidental to the application on the District Court scale on a standard basis and failing agreement;

(a) The Applicants must file in the Tribunal and give to the Respondent a short form assessment of costs prepared by an approved Costs Assessor together with any submissions in support of the costs sought to be paid by 15 July 2022;

(b) If within 14 days of the receipt of the assessment by the Respondent the parties have not agreed costs, the costs should be assessed by Hickey and Garrett, Legal Costs Assessors, level 15, 141 Queen Street Brisbane 4000;

(c) The Respondent to pay the Cost Assessors costs of the assessment.

CATCHWORDS:

COSTS – Calderbank offer – where offer to settle not more favourable – where costs ordered on a standard basis

Queensland Building and Construction Commission Act 1991

Queensland Civil and Administrative Tribunal Act 2009

Lyons v Dreamstarter Pty Ltd [2012] QCATA 71

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)

REASONS FOR DECISION

This matter was heard at Caloundra over 2 days in December 2021. On 3 March 2022 the following orders were made:
The respondent pay the applicants the sum of $162,370.27 in respect of their claim by 4:00 pm 31 March 2022;
The parties were invited to make written submissions on costs.
The Tribunal has powers to award costs pursuant to s77(3) of the Queensland Building and Construction Commission Act 1991 displacing the usual no costs provision in Tribunal matters as provided by s100 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).
Where there is a discretion to award costs the usual rule is that costs follow the event.
Under s102 of the QCAT Act relevantly provides:
(1) The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.
...
(3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
(a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g)[1];
(b) the nature and complexity of the dispute the subject of the proceeding;
(c) the relative strengths of the claims made by each of the parties to the proceeding;
(d) ...
(e) the financial circumstances of the…

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: [2022] QCAT 213
Decision Date

CaseChat Overview and Summary

The case of Jones and Johnston v Rutch Constructions Pty Ltd No 2 was determined by the Queensland Civil and Administrative Tribunal (QCAT). The applicants, Eric Jones and Lorraine Ann Johnston, sought rectification of defects in a building constructed by the respondent, Rutch Constructions Pty Ltd. The dispute involved claims under the Queensland Building and Construction Commission Act 1991, specifically regarding statutory warranties and rectification works. The Tribunal was tasked with determining the appropriate costs to be awarded to the applicants.

The primary legal issue before the Tribunal was whether the costs incurred by the applicants should be awarded on an indemnity basis or a standard basis, and if the standard basis, whether they should be assessed on the District Court scale. The applicants argued for an indemnity basis due to the respondent's resistance to their claims, while the respondent contended that the applicants' offer to settle, which was conditional and uncertain in its costs, did not warrant indemnity costs. The Tribunal also needed to consider the financial circumstances of the parties and the nature of the dispute.

The Tribunal concluded that while the applicants had been successful in their claim, the offer to settle was not more favourable to the respondent due to its conditional nature and the uncertainty regarding additional rectification costs. The Tribunal found that the respondent's defence was not superficial but rather complex, involving competing expert opinions. Therefore, the costs should be awarded on a standard basis. Given that the amount claimed and recovered exceeded the monetary jurisdiction of the Magistrates Court, the costs should be assessed on the District Court scale. The Tribunal ordered that if the parties could not agree on the amount of costs, an approved costs assessor should assess the costs.

The Tribunal made specific orders regarding the assessment of costs. The applicants were required to file a short form assessment of costs prepared by an approved costs assessor by a specified date. If the parties could not agree on the costs within 14 days of the assessment, the costs would be assessed by Hickey and Garrett, Legal Costs Assessors. The respondent was to bear the costs of the assessment. The respondent was also ordered to pay the applicants' assessed costs within 14 days of receiving the assessment.

Orders