Kernohan Construction Pty Ltd v Gillham - [2023] QCAT 231

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Kernohan Construction Pty Ltd v Gillham [2023] QCAT 231

PARTIES:

KERNOHAN CONSTRUCTION PTY LTD T/AS KERNOHAN CONSTRUCTION

(applicant)

v

AUSTIN GILLHAM

(respondent)

APPLICATION NO/S:

BDL116-15

MATTER TYPE:

Building matters

DELIVERED ON:

23 June 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

1. The applications for costs are dismissed.

2. Each party must bear their own costs of and incidental to the application and counter-application.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – where contractor partly successful against homeowner – where homeowner partly successful against contractor – where small net amount payable to contractor - where settlement offers made

Queensland Building and Construction Commission Act 1991 (Qld), s 77

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48, s 100, s 102, s 105

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 86

Campbell v Queensland Building and Construction Commission [2021] QCATA 34

Gillham v Kernohan Construction Pty Ltd [2022] QCATA 19
Gillham v Kernohan Construction Pty Ltd [2023] QCATA 64
Kernohan Construction Pty Ltd v Gillham [2019] QCAT 165

Lyons v Dreamstarter Pty Ltd [2011] QCATA 142

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) (QCAT Act)

REASONS FOR DECISION

By decision delivered 14 June 2019 I ordered Mr Gillham to pay Kernohan Construction Pty Ltd t/as Kernohan Construction (the Builder) the amount of $12,747.56 (the Decision) and invited submissions on the question of costs to allow it to be determined on the papers.[1]
[1]Kernohan Construction Pty Ltd v Gillham [2019] QCAT 165.
Submissions were received.[2] Mr Gillham sought to appeal the Decision.[3] In those circumstances I directed that the question of costs was adjourned until the final decision of the matters in APL191-19 is made.[4]
[2]The Builder’s submissions were filed 24 July 2019; Mr Gillham’s submissions were filed 22 July 2019 and 12 August 2019.
[3]APL191-19.
[4]Direction 10 September 2019.
The Appeal Tribunal delivered the appeal decision on 14 January 2022 (Appeal Decision).[5] The Appeal Tribunal varied the Decision. The Appeal Decision is that Mr Gillham pay the Builder $1,934.78. The Appeal Tribunal substantially confirmed the Decision other than in respect of the Builder’s entitlement to be paid for Variation 1. The Appeal Tribunal recently delivered a further decision on 31 May 2023 which dismissed an application for re-opening, correction, renewal or amendment.[6]
[5]Gillham v Kernohan Construction Pty Ltd [2022] QCATA 19.
[6]Gillham v Kernohan Construction Pty Ltd [2023] QCATA 64.
At the hearing before me, the Builder claimed payment of $78,588.32 from Mr Gillham for monies owing under the contract. Mr Gillham counterclaimed in the sum of $252,185.97 for breach of contract and breach of the provisions the Domestic Building Contracts Act 2000 (Qld).
The Builder submits that it ought to be awarded…

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 Kernohan Construction Pty Ltd v Gillham

Details

AGLC: Kernohan Construction Pty Ltd v Gillham [2023] QCAT 231
Case: [2023] QCAT 231
Decision Date

CaseChat Overview and Summary

In the matter of Kernohan Construction Pty Ltd v Gillham, the Queensland Civil and Administrative Tribunal (QCAT) addressed an application for costs brought by Kernohan Construction Pty Ltd against Austin Gillham. The dispute originated from a building contract where Kernohan Construction Pty Ltd, a contractor, was engaged by Gillham for construction work on his property. Following a decision in favour of Kernohan Construction Pty Ltd, both parties filed applications for costs. Kernohan Construction Pty Ltd claimed costs amounting to approximately $117,838.48, while Gillham claimed approximately $360,193.89. The tribunal considered several factors in deciding whether to award costs to either party, including the nature and complexity of the dispute, the success of each party's claims, the relative strength of those claims, and the financial circumstances of the parties. The tribunal also examined the settlement offers made by both parties during the dispute. Ultimately, the tribunal found that neither party acted in a manner that caused unnecessary disadvantage to the other, and the costs incurred by both parties significantly reduced the financial benefit of their successful claims. The tribunal concluded that neither party was unreasonable in not accepting the settlement offers and determined that the applications for costs should be dismissed, with each party bearing their own costs.

Orders