Lyons v Dreamstarter Pty Ltd
[2017] QCATA 33
•31 March 2017
CITATION: | Lyons v Dreamstarter Pty Ltd [2017] QCATA 33 |
PARTIES: | Andrew Lyons |
| v | |
| Dreamstarter Pty Ltd (Respondent) | |
APPLICATION NUMBER: | APL086-12 |
MATTER TYPE: | Appeals |
HEARING DATE: | 17 February 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Justice DG Thomas, President |
DELIVERED ON: | 31 March 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Within 10 days from the date of this order, QBCC must indicate to the Tribunal, and to Mr Lyons: a. Which, if any, of the panel nominated by Mr Lyons have not (either individually or through his or her firm) acted for or been retained by either QBCC or QBSA; and b. In the event that at least one of the panel members has not acted for or been retained by either QBCC or QBSA, the person from the panel nominated by Mr Lyons who QBCC would submit should be appointed as assessor pursuant to r 87 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld). |
CATCHWORDS: | COSTS – ASSESSMENT OF COSTS – where Tribunal awarded Applicant’s reasonable costs be paid on indemnity basis – where agreement on costs not likely to be reached due to party history – where parties agree on methodology of assessment – whether Tribunal should proceed on an agreement for costs or by an assessment of costs Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32 |
APPEARANCES: | |
APPLICANT: | MP Amerena of Burns & Associates solicitors for the Applicant |
RESPONDENT: | N Andreatidis for the Queensland Building and Construction Commission |
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
The Tribunal ordered that the QBCC pay the reasonable costs of the applicant assessed on an indemnity basis.
Each of the parties have made submissions as to the methodology for agreement or assessment of costs.
As to agreement, QBCC submits that Mr Lyons should provide a short form assessment specifying the sum for costs which Mr Lyons is prepared to accept in satisfaction of the order, which offer will be responded to by QBCC.
In response, Mr Lyons submits that the prospects of agreement are so low that the time and cost of preparation of such an assessment is likely to be wasted. In that context, Mr Lyons submits it is foreseeable that a costs assessor, appointed to assess the costs, will require Mr Lyons to cause a costs statement to be prepared which will serve a similar purpose as an assessment in that QBCC can respond to Mr Lyons in response to receipt of the costs statement.
Given the history of the disputes between the parties, and given the likelihood that a costs statement would be prepared in the context of any assessment of costs by a person appointed by the Tribunal, I do not believe it warranted to order, at this stage, that a short form assessment be prepared. The preferable course is to proceed to the assessment of the costs.
Rule 87 of the Queensland Civil and Administrative Rules provides that costs are to be assessed by an assessor appointed by the Tribunal.
Rule 87 further provides that the assessor must decide the procedure to be followed on the assessment of costs and may decide to do any or all of the following:
a)Hear the assessment in private;
b)Carry out the assessment on the papers without an oral hearing;
c)Not be bound by the laws of evidence or procedure applying to a proceeding in the Tribunal;
d)Be informed of the facts in anyway the assessor considers appropriate;
e)Not make a record of the evidence given.
As to the methodology, QBCC has suggested that:
a)The Appeal Tribunal nominate a costs assessor to assess the costs awarded to Mr Lyons “the appointed costs assessor”;
b)The appointed costs assessor is not to be Mr Hartwell or Ms Tokin or otherwise not an assessor who has acted for or been retained by either party;
c)The costs to be assessed on the District Court scale; and
d)The appointed costs assessor is to decide the procedure to be followed on the assessment.
In his submissions, Mr Lyons has agreed with sub-paragraphs 4(a) & (d).
As to paragraph 4(b), it seems each side agree that the person appointed should have no connection with either party. Mr Lyons suggests that “either party” should, in the case of QBCC, include QBSA.
Mr Lyons submits that 4(c) is outside the scope of submissions regarding methodology and points to the fact that the order made by the Tribunal dealt with the basis of assessment namely that QBCC pay Mr Lyons reasonable costs assessed on an indemnity basis.
Mr Lyons put forward the names of three individuals who have not acted for, or been retained by Mr Lyons. These names are:
· Adam Bloom of QICS
· James McLellan
· Ruth Chowdhury
Mr Lyons submits that QBCC nominate one of the three names, having satisfied itself, and informed Mr Lyons’ solicitors, that the person nominated (including the firm of the person nominated), has not acted for or been retained by QBCC or QBSA.
In accordance with Rule 87, the Appeal Tribunal will appoint an assessor to assess the costs payable pursuant to the order of the Tribunal that “the QBCC pay Mr Lyons reasonable costs assessed on an indemnity basis”.
The Appeal Tribunal notes that each of the three nominated persons have a current appointment under the Uniform Civil Procedure Rules and so have competence and experience to undertake the assessment.
For that purpose, the Appeal Tribunal orders that within the next 10 days the QBCC indicate to the Tribunal, and to Mr Lyons:
a)Which, if any, of the panel nominated by Mr Lyons have not (either individually or through his or her firm) acted for or been retained by either QBCC or QBSA;
b)In the event that at least one of the panel members has not acted for or been retained by either QBCC or QBSA, the person, from the three names nominated by Mr Lyons, who QBCC would submit should be appointed as assessor pursuant to Rule 87.
After QBCC has complied with the order in [16], the Appeal Tribunal will nominate an assessor to assess the costs payable pursuant to the order made that “QBCC pay Mr Lyons reasonable costs assessed on an indemnity basis”.
In accordance with the Rules, the assessor appointed will decide the procedure to be followed in relation to the assessment of costs.
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