Lyons v Dreamstarter Pty Ltd - [2010] QCAT 447

CITATION:		Dreamstarter Pty Ltd t/a Protech Builders v Lyons [2010] QCAT 447
PARTIES:	Dreamstarter Pty Ltd t/a Protech Builders
v
Andrew Lyons

APPLICATION NUMBER:

BDL222-10

MATTER TYPE:

Building matters

HEARING DATE:

Decision on the papers

HEARD AT:

Brisbane

DECISION OF:

Peta Stilgoe

DELIVERED ON:

14 September 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

Application for security for costs is dismissed

CATCHWORDS :

SECURITY FOR COSTS – where applicant a $2 company – where response and counterclaim not yet filed
Queensland Civil and Administrative Tribunal Act ss 3(b), 4(c), 28(d), 69, 100, 102 and 109 Ralacom Pty Ltd –v- Body Corporate for Paradise Island Apartments (No. 2) – Tamawood Ltd –v- Paans

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the

Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

Dreamstarter Pty Ltd (“Dreamstarter”) and Mr Lyons are involved in a typical building dispute. Dreamstarter has brought proceedings in the tribunal for payment of a progress claim, variation and a provisional sum, the total of which is $98,734.70 plus interest. It also asserts that Mr Lyons has wrongly terminated the building contract and has, therefore, claimed for loss of profit in the sum of $25,110.00.
Mr Lyons has brought an application for security for costs in the sum of $200,000.
Mr Lyons has not yet filed a response to the claim. He has, however, filed an affidavit in which he asserts that Dreamstarter has breached the contract in numerous and material ways that entitle him to terminate the contract. It seems that he will be claiming damages well in excess of the jurisdiction of this tribunal. That claim will be an issue for another day.
Section 109 of the Queensland Civil and Administrative Tribunal Act (“the Act”) provides that the tribunal may give security for costs if, under the Act or an enabling Act, the tribunal may award a party’s costs for a proceeding. The matters to which the tribunal may have regard are set out in section 109(4):

a)The financial circumstances of the parties to the proceeding;
b)The prospects of success or merits of the proceeding;
c)The genuineness of the proceeding against the applicant;
d)Anything else the tribunal considers relevant.

The tribunal may award costs

Section 100 of the Act provides that, other than as provided under the Act or an enabling Act, each party to a proceeding must bear the party’s own costs. Section 102 of the Act sets out the matters to which a tribunal may give consideration when determining whether to award costs. Apart from each party informing the tribunal that their case is a strong one, neither has descended to much detail about the factors that may influence the tribunal to order costs in this case.
Dreamstarter has referred the tribunal to paragraph [29] of the decision of the President in Ralacom Pty Ltd –v- Body Corporate for Paradise Island Apartments (No. 2)[1]:
“Under the QCAT Act the question that will usually arise in each…

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 Lyons v Dreamstarter Pty Ltd

Details

AGLC: Lyons v Dreamstarter Pty Ltd [2010] QCAT 447
Case: [2010] QCAT 447
Decision Date: 14 September 2010

CaseChat Overview and Summary

The application was brought by Mr. Lyons, a sole director of a $2 company, against Dreamstarter Pty Ltd, a party in litigation. The nature of the dispute was centred around the applicant’s request for security for costs, given that he was a $2 company. Notably, Dreamstarter Pty Ltd had not yet filed a response or a counterclaim at the time of the application. The case was heard by the Queensland Civil and Administrative Tribunal.

The legal issues before the tribunal centred on the interpretation and application of sections 3(b), 4(c), 28(d), 69, 100, 102, and 109 of the Queensland Civil and Administrative Tribunal Act. Specifically, the tribunal had to determine whether Mr. Lyons, as the director of a $2 company, was eligible for security for costs. Additionally, the tribunal considered relevant case law, including Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) and Tamawood Ltd v Paans, to understand how similar situations had been addressed in the past.

The tribunal dismissed the application for security for costs. It found that, despite the applicant's position as a director of a $2 company, the circumstances did not warrant the imposition of security for costs. The tribunal relied on the absence of a response and counterclaim by Dreamstarter Pty Ltd, as well as the general principles established in the cited cases, which suggested that the imposition of security for costs should be approached with caution, particularly in cases involving small companies. Consequently, the tribunal concluded that the application did not meet the necessary criteria for granting security for costs.

No further orders were made by the tribunal. The dismissal of the application for security for costs was the final outcome in this matter.

Orders

Orders of the court

Application for security for costs is dismissed

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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