Lewis Constructions Pty Ltd v Pollock - [2012] QCAT 398

CITATION:

Lewis Constructions Pty Ltd v Pollock and Anor (No 2) [2012] QCAT 398

PARTIES:	Lewis Constructions Pty Ltd
v
Andrew Pollock Belinda Pollock

APPLICATION NUMBER:

BD429-09

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Ann Fitzpatrick, Member

DELIVERED ON:

3 September, 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

[1] Lewis Constructions Pty Ltd’s application for costs is allowed.

[2] Andrew Pollock and Belinda Pollock’s application for costs is dismissed apart from the order made below.

[3] Andrew and Belinda Pollock are to pay Lewis Constructions Pty Ltd’s costs of and incidental to the proceeding on the standard basis of assessment in accordance with the District Court Sale of Costs.

[4] If the amount of Lewis Constructions Pty Ltd’s costs is not agreed between Andrew and Belinda Pollock and Lewis Constructions Pty Ltd within 14 days, the costs are to be assessed by Hickey & Garrett, Legal Costs Consultants, Level 21, 141 Queen Street, Brisbane at the cost of Andrew and Belinda Pollock.

[5] Andrew and Belinda Pollock are to pay Lewis Constructions Pty Ltd’s costs (as agreed or assessed) within 14 days of such agreement or assessment.

[6] Lewis Constructions Pty Ltd is to pay to Andrew and Belinda Pollock the cost of the reports prepared by Mr Van de Hoef of NJA Consulting dated 17 March, 2011, 1 August, 2011 and 4 August, 2011 and the cost of the appearance of Mr Vrbancic at the hearing, within 14 days of presentation to it of the tax invoices relating to these items of cost.

CATCHWORDS:

Costs of claim and counter-application – exercise of discretion as to costs in the Tribunal

Queensland Building Services Authority Act 1991, s 77(1)(h)
Queensland Civil and Administrative Tribunal Act 2009, ss 3, 100

Hallett & Ors v Queensland Building Services Authority [2011] QCAT 355
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
Oshlak v Richmond River Council (1998) 193 CLR 72
Queensland Building Services Authority v Johnston [2011] QCATA 265
Smith v Madden (1946) 73 CLR 129

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

On 13 June, 2012 a decision in this matter was handed down. The applicant was successful in obtaining an order for a substantial sum although less than the sum claimed. The respondents’ counter-application was successful with respect to part of their counter-application in an amount of $2,083.00 for damages for the cost of remedial works to 23 columns and $5,435.00 for the cost of other rectification work. The amounts were significantly less than the amount claimed in the counter-application.
Both parties were legally represented during the hearing. Both parties have sought costs.

Considerations applicable to the awarding of costs

This proceeding was commenced in the former Commercial and Consumer Tribunal. The functions of that Tribunal are now largely performed by the Queensland Civil and Administrative Tribunal. More recently…

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 Lewis Constructions Pty Ltd v Pollock

Details

AGLC: Lewis Constructions Pty Ltd v Pollock and Anor (No 2) [2012] QCAT 398
Case: [2012] QCAT 398
Decision Date: 3 September, 2012

CaseChat Overview and Summary

Lewis Constructions Pty Ltd brought an application against Andrew and Belinda Pollock regarding a building contract dispute. The court was tasked with deciding the costs associated with the claim and the counter-application filed by the Pollocks. The primary legal issue revolved around the exercise of discretion as to costs in the tribunal. The court needed to determine whether the costs incurred by Lewis Constructions were reasonable and necessary, and if so, who should bear the responsibility for those costs.

In deciding the matter, the court examined the principles of costs in legal proceedings, particularly focusing on the standard basis of assessment. It also considered the conduct of the parties during the proceedings, the complexity of the issues, and the outcome of the case. The court found that Lewis Constructions’ application for costs was justified and that the Pollocks' counter-application for costs was not. The reasoning was based on the fact that Lewis Constructions had succeeded on the merits of the case, and the Pollocks' claims did not warrant an award of costs.

Consequently, the court ordered that Lewis Constructions Pty Ltd was to be awarded its costs of and incidental to the proceeding on the standard basis. The Pollocks were required to pay these costs within a specified timeframe, with the possibility of assessment by a costs consultant if an agreement could not be reached. Additionally, Lewis Constructions was to reimburse the Pollocks for specific items of cost related to expert reports and an appearance at the hearing. This decision aimed to ensure that the prevailing party was compensated for their reasonable costs while also maintaining fairness in the proceedings.

Orders

Orders of the court

[1] Lewis Constructions Pty Ltd’s application for costs is allowed.

[2] Andrew Pollock and Belinda Pollock’s application for costs is dismissed apart from the order made below.

[3] Andrew and Belinda Pollock are to pay Lewis Constructions Pty Ltd’s costs of and incidental to the proceeding on the standard basis of assessment in accordance with the District Court Sale of Costs.

[5] Andrew and Belinda Pollock are to pay Lewis Constructions Pty Ltd’s costs (as agreed or assessed) within 14 days of such agreement or assessment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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