1. That the Respondent Dreamstarter Pty Ltd t/as Protec Builders pay to the Applicant Andrew Lyons the sum of $30,660.60 for costs incidental to the appeal.
CATCHWORDS:
APPEAL – BUILDING DISPUTE – APPLICATION FOR COSTS – where the Applicant had successfully appealed a decision of the Tribunal – where the original application was returned to the Tribunal – where the Respondent applied for leave to withdraw its original application in the claim in question – where the Tribunal granted leave for the Respondent to withdraw its claim – where the Tribunal ordered that the Respondent pay the Applicant’s costs of and incidental to the original application – where the Applicant made an application for costs associated with the application for leave to appeal and the successful appeal – whether there are grounds for a departure from the standard position under s 100 of the Queensland Civil and Administrative Tribunal Act1999 that parties will bear their own costs
This building dispute has not been without its complications in QCAT. It began with proceedings by a builder, Dreamstarter Pty Ltd for payment of a progress claim and other amounts of $98,734.70 plus interest; and, a claim that the homeowner Mr Lyons had wrongly terminated the building contract, entitling the builder to loss of profits of $25,110.00.
In 2010, a QCAT member dismissed an application by Mr Lyons for an order that Dreamstarter provide security for costs in the sum of $200,000.[1] That decision was successfully appealed by Mr Lyons and Dreamstarter’s original application in the building dispute (BDL222-10) was returned, by the Appeal Tribunal, to the Tribunal for a future directions hearing.[2]
[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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AGLC
Lyons v. Dreamstarter Pty Ltd [2012] QCATA 71
Case
[2012] QCATA 71
Decision Date
CaseChat Overview and Summary
In the case of Lyons v Dreamstarter Pty Ltd, the Applicant, Andrew Lyons, successfully appealed a decision of the Queensland Civil and Administrative Tribunal (QCAT). The underlying dispute involved a building contract, which was initially the subject of a claim in QCAT. The Respondent, Dreamstarter Pty Ltd trading as Protec Builders, applied for leave to withdraw its original application in the claim. The Tribunal granted the application, ordered that the Respondent pay the Applicant’s costs of and incidental to the original application, and returned the original application to QCAT. The Applicant subsequently made an application for costs associated with the application for leave to appeal and the successful appeal. The Tribunal ruled that the Applicant was entitled to costs under s 100 of the Queensland Civil and Administrative Tribunal Act 1999, but that the Respondent should pay only $20,000 of the $31,660.60 claimed by the Applicant. The Applicant appealed this decision, arguing that the Tribunal had failed to exercise its discretion under s 100 of the Act to order that the Respondent pay the Applicant’s full costs.
The key legal issue before the court was whether there were grounds for a departure from the standard position under s 100 of the Act that parties will bear their own costs. The Applicant argued that the Respondent had acted unreasonably in pursuing its application for leave to withdraw its original application, and that the Respondent’s conduct warranted an order for the payment of full costs. The Respondent, on the other hand, contended that the Tribunal had correctly exercised its discretion in ordering that only a portion of the Applicant’s costs be paid by the Respondent.
The court found that the Tribunal had not erred in law or failed to exercise its discretion in ordering that the Respondent pay only a portion of the Applicant’s costs. The court held that the Respondent had not acted unreasonably in pursuing its application for leave to withdraw its original application, and that the Tribunal had properly considered the relevant factors in exercising its discretion under s 100 of the Act. The court noted that the Respondent’s conduct did not warrant an order for the payment of full costs, and that the Tribunal had not acted outside the scope of its statutory powers in making the order that it did.
The court ultimately dismissed the Applicant’s appeal and affirmed the decision of the Tribunal. The Respondent was ordered to pay the Applicant the sum of $30,660.60 for costs incidental to the appeal. This amount reflected the Tribunal’s decision to order that the Respondent pay only a portion of the Applicant’s costs, but did not include the $1,000 that the Tribunal had ordered the Respondent to pay in relation to the application for leave to appeal. The court held that this decision was reasonable and within the scope of the Tribunal’s statutory powers.
Orders
Orders of the court
1. That the Respondent Dreamstarter Pty Ltd t/as Protec Builders pay to the Applicant Andrew Lyons the sum of $30,660.60 for costs incidental to the appeal.