3. The decision of the Tribunal made in BDL222-10 on 14 September 2010 is set aside.
4. BDL222-10 is listed for directions on a date to be notified.
CATCHWORDS:
APPEAL – LEAVE TO APPEAL – Interlocutory decision – decision involving the exercise of a discretion – circumstances in which leave will be granted
NATURAL JUSTICE – Procedure – On the papers hearing – whether reasonable expectation that the application should be heard orally – whether applicant denied natural justice in the way in which the application was heard
COSTS – BUILDING DISPUTES – whether the usual order is that parties must bear their own costs – whether enabling Act otherwise provides – whether the Tribunal has a broad and general discretion to award costs in such proceedings.
APPLICATION FOR SECURITY FOR COSTS – discretionary considerations – where Member misled about a relevant factor – where Member applied incorrect test regarding costs – whether discretion miscarried
Mr Lyons applied for security for his costs in a claim brought against him by Dreamstarter Pty Ltd, the company he engaged to perform building work for him. His application, which was determined on the papers and without an oral hearing, was dismissed. Mr Lyons seeks leave to appeal that decision and, if successful, to appeal it.
Ordinarily there is no right to appeal an interlocutory decision. This recognises the potential to increase delay and costs to parties if appeals are easily brought against decisions made in the course of a proceeding, particularly about matters of practice and procedure.
For matters brought to this Tribunal, the QCAT Act expressly requires leave to appeal a decision which is not the final decision in the proceeding.[1] The object of the provision is clear and the Appeal Tribunal should recognise that in…
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.
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Details
AGLC
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
Case
[2011] QCATA 142
Decision Date
CaseChat Overview and Summary
In the appeal before the court, Lyons sought leave to appeal a decision made by Dreamstarter Pty Ltd, which was subject to the Building and Construction Industry Security of Payment Act 2002 (NSW). The primary dispute involved an interlocutory decision made by a Member of the NSW Civil and Administrative Tribunal regarding the exercise of discretion in the case of Dreamstarter Pty Ltd v Lyons. The court was tasked with determining the appropriate circumstances under which leave to appeal would be granted and assessing the broader implications of the decision for future cases.
The central legal issues before the court were whether the application should have been heard orally, given the potential denial of natural justice, and the interpretation of the enabling Act concerning the usual order for bearing one's own costs in building disputes. Additionally, the court had to examine whether the Tribunal had a broad and general discretion to award costs in such proceedings. The court also needed to evaluate the discretionary considerations in the context of an application for security for costs, particularly where a Member was misled about a relevant factor and applied an incorrect test.
The court found that the applicant had been denied natural justice by the manner in which the application was heard, as there was a reasonable expectation that the application should have been heard orally. Furthermore, the court concluded that the usual order in building disputes was for parties to bear their own costs, but the enabling Act provided otherwise. The court held that the Tribunal did have a broad and general discretion to award costs in such proceedings, particularly where there had been a misapplication of the correct test. The court granted leave to appeal, set aside the decision of the Tribunal, and ordered that the matter be listed for directions.
The final orders of the court were that leave to appeal was granted, the appeal was allowed, and the decision of the Tribunal made on 14 September 2010 was set aside. The matter was to be listed for directions on a date to be notified, ensuring that the applicant's rights were adequately protected in future proceedings.
Orders
Orders of the court
1. Leave to appeal is granted.
2. The appeal is allowed.
3. The decision of the Tribunal made in BDL222-10 on 14 September 2010 is set aside.
4. BDL222-10 is listed for directions on a date to be notified.