Lupton Scott v Ryan Stewart

Case [2022] QCATA 130

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Lupton Scott v Ryan Stewart  [2022] QCATA 130

PARTIES:
lupton scott t/as fantasy pools brisbane

(applicant/appellant)

v
ryan stewart  

(respondent)

APPLICATION NO/S:

APL187-20

ORIGINATING APPLICATION NO/S:

BDL275-18

MATTER TYPE:

Appeals

DELIVERED ON:

31 August 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Traves
Member Howe

ORDERS:

1.     Leave to appeal is granted.

2.     The appeal is allowed.

3.     Ryan Stewart shall pay Lupton Scott’s costs of and incidental to the proceeding at first instance to be agreed, or if not agreed to be assessed on the standard basis in accordance with the District Court Scale.

4.     The parties must make any submissions in relation to the costs of the appeal (APL187-20) by 4:00pm on 28 September 2022.

5.     Any application for costs of the appeal (APL187-20) will be determined by the Tribunal on the papers after 28 September 2022.

CATCHWORDS:

APPEAL AND NEW TRAIL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where costs refused – where leave to appeal sought – whether leave to appeal should be given – whether error in failure to take into account relevant considerations – whether error in failure to take into account irrelevant considerations - whether costs should be awarded

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

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 142(3)

Barnett v Pirrone [2019] QCATA 166

House v R (1936) 55 CLR 499
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Tamawood Ltd v Paans [2005] QCA 111

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:

Mr Tom Adames of All Building Law Pty Ltd

Respondent:

Self-represented

REASONS FOR DECISION

  1. This is an application for leave to appeal and, if successful, appeal of a decision not to award costs.

  2. The matter involved a dispute about a concrete-shell swimming pool built by Mr Scott for Mr Stewart. The matter was commenced by Mr Scott as a minor civil dispute claim for payment of money owed under a building contract for the construction of the pool. This claim was dismissed for lack of jurisdiction. Mr Stewart then commenced a claim for damages as a minor civil dispute to which Mr Stewart filed a counterclaim for payment of unpaid invoices. This claim and counterclaim were transferred to the building list.

  3. The final hearing was held over two days and a decision was made in favour of Mr Scott.  Mr Stewart was ordered to pay to Mr Scott the amount of unpaid invoices (excluding the ‘variation invoice’ and the practical completion invoice), together with interest. Mr Stewart’s counterclaim was largely unsuccessful. Of a claim which developed during the course of the litigation from $24, 000 to eventually exceed   $500, 000, only $1, 518 in damages was awarded in his favour.

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Details
AGLC
Lupton Scott v Ryan Stewart [2022] QCATA 130
Case
[2022] QCATA 130
Decision Date

CaseChat Overview and Summary

In Lupton Scott v Ryan Stewart, Mr Scott sought leave to appeal or appeal in relation to a costs decision, specifically the refusal to award him costs following his successful resolution of a building dispute. The Queensland Civil and Administrative Tribunal (QCAT) had initially found in favour of Mr Scott but did not award him costs, a decision from which he now sought recourse.

The primary legal issues before the court were whether the Tribunal had erred in its decision not to award costs and whether Mr Scott had demonstrated a reasonably arguable case of error that warranted leave to appeal. Mr Scott argued that the Tribunal had failed to take into account relevant considerations and had possibly considered irrelevant ones, thereby causing a substantial injustice. He also posited that the Tribunal's decision raised a question of general importance regarding the right to recover legal costs in building disputes. Conversely, Mr Stewart contended that the appeal did not present a reasonably arguable case of error and did not raise a question of general or public importance.

The Appeal Tribunal granted leave to appeal and allowed the appeal. The Tribunal found that the Tribunal's discretion to award costs in building disputes is broader and more general than that conferred by the QCAT Act. The Tribunal concluded that Mr Scott had demonstrated a reasonably arguable case of error and that there was a reasonable prospect of obtaining substantive relief. The Appeal Tribunal also found that the Tribunal's failure to award costs had caused a substantial injustice to Mr Scott.

Accordingly, the Appeal Tribunal ordered that leave to appeal be granted, the appeal be allowed, and Mr Stewart pay Mr Scott's costs of and incidental to the proceeding at first instance. The parties were required to make submissions in relation to the costs of the appeal by a specified date, after which the Tribunal would determine any application for costs of the appeal.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is allowed.

3. Ryan Stewart shall pay Lupton Scott’s costs of and incidental to the proceeding at first instance to be agreed, or if not agreed to be assessed on the standard basis in accordance with the District Court Scale.

4. The parties must make any submissions in relation to the costs of the appeal (APL187-20) by 4:00pm on 28 September 2022.

5. Any application for costs of the appeal (APL187-20) will be determined by the Tribunal on the papers after 28 September 2022.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 6 July 2020 Mr Scott filed an application for leave to appeal or appeal in relation to the costs decision.Appeals against costs decisions An appeal against a costs order may only be made with the leave of the appeal tribunal.[1] The relevant principles to be applied in determining whether to grant leave to appeal are well established: is there a reasonably arguable case of error in the primary decision; is there a reasonable prospect that the applicant will obtain substantive relief; is leave necessary to correct a substantial injustice to the applicant caused by some error; is there a question of general importance upon which further argument, and a decision of the appellate court or Tribunal, would be to the public advantage.[2][1]QCAT Act, s 142(3)(a)(iii).[2]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Cachia v Grech [2009] NSWCA 232; Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580. Mr Scott submits that leave to appeal should be granted because he has demonstrated a reasonably arguable case of error in the primary decision and that he has a reasonable prospect, based on case law, of obtaining substantive relief. Further, Mr Scott submits that the Tribunal has caused a substantial injustice to Mr Scott in that his success in the primary decision has been severely eroded by the decision not to award costs. Mr Scott submits that the following question of general importance is raised in the appeal, namely:Whether the granting of leave by the Tribunal for parties to be legally represented in a building dispute establishes a prima facie right for the successful party to recover its legal costs from the unsuccessful party? The right being similar to the position in the courts where “costs follow the event” absent any disentitling conduct on the part of the successful party. Mr Stewart submits that leave to appeal ought be refused in circumstances where the appeal raises no question of general or public importance and where there is no reasonably arguable case that the tribunal member erred. Further, to succeed on appeal, Mr Scott needed to demonstrate an error in the exercise of the “broad general discretion” to award costs conferred by s 77 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) which, it was submitted, he had no prospects of establishing. Relevant principles The QCAT Act provides that, other than as provided for under the QCAT Act or an enabling Act, each party must bear their own costs.[3] On the other hand, s 77(3)(h) of the QBCC Act provides that the Tribunal may exercise the power to award costs in a building dispute. The section does not provide further guidance or prescription about the occasions for or conditions of exercise of that power.[3]QCAT Act, s 100. The Appeal Tribunal has held that the Tribunal’s discretion to award costs in a building dispute pursuant to s 77(3)(h) of the QBCC Act is a broader and more general discretion than the one conferred by the QCAT Act pursuant to s 100 of the QCAT Act.[4] The QBCC Act confers an express and otherwise unfettered discretion to award costs.[4]Pivovarova v Michelsen [2016] QCATA 45 at [24].

Ratio Decidendi

Legal Principle Established

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