M Plus 2 Projects Pty Ltd v Silvetser - [2022] QCAT 218

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

M Plus 2 Projects Pty Ltd v Silvetser [2022] QCAT 218

PARTIES:

M PLUS 2 PROJECTS PTY LTD

(applicant)

v

TRAVIS SILVETSER
COLLEEN SILVETER

(respondent)

APPLICATION NO/S:

BDL085-19

MATTER TYPE:

Building matters

DELIVERED ON:

21 June 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

ORDERS:

1. Application dismissed.

2. Cost of the Application reserved.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS INSTATE AND TERRITORY COURTS –SECURITY FOR COSTS – PROCEDURE –where the Queensland Civil and Administrative Tribunal may make an order for security for costs – where s 109 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) considered – where the Tribunal considers the financial circumstances of the parties – where the Tribunal finds that the claim has reasonable prospects of success – where the Tribunal considers the prospects of success or merits of the proceeding – where the Tribunal considers delay in bringing the application for security for costs – where the Tribunal considers as a relevant matter the
prospects of an order for costs being made pursuant to s 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – where the Tribunal finds that no order for security for costs should be made

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102(3)(b),102(3)(c), s 109(1), s 109(2), s 109(4), s 109(4)(a)

Uniform Civil Procedure Rules 1999 (Qld)

Buckley v Bennell (1974) 1 ACLR 301
Covecorp Constructions Pty Ltd v Indigo Projects Pty Ltd [2007] QSC 262 at 25
Greg Black Constructions Pty Ltd v Brodie and Anor [2011] QCAT 671

Ultimate Property One Management Pty Ltd v. Body Corporate for the Pivotal Point Residential CTS 33550 [2017] QCAT 671

REPRESENTATION:

Applicant:

Romans & Romans Lawyers

Respondent:

McInnes Wilson Lawyers

APPEARANCES

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

In May 2018, the Respondent, M Plus 2 Projects Pty Ltd (‘MP2’) was engaged by the Applicants, Travis and Coleen Silvester (‘Silvesters’) to build a house at Fortitude Valley. A dispute arose and MP2 has sued the Silvesters for monies owing under the contract. There is a counter application by the Silvesters for damages for breach of contract.
In this application, Silvesters have applied to have MP2 pay security for costs of $20,000 for the upcoming hearing.
In deciding whether to make an order the Tribunal may have regard to any of the following:
(a)The financial circumstances of the parties.
(b)The prospects of success or merits of the proceeding or part of the proceedings.
(c)The genuineness of the proceeding or part of the proceedings.
(d)Anything else the tribunal considers relevant.
The Tribunal has a broad discretion to require security which must be exercised judicially.[1]
[1]Ultimate Property One Management Pty Ltd v. Body Corporate for the Pivotal Point Residential CTS 33550 [2017] QCAT 671, [23]
In Gregg Black Constructions Pty Ltd v Brodie and Anor[2] Member Stilgoe…

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 M Plus 2 Projects Pty Ltd v Silvetser

Details

AGLC: M Plus 2 Projects Pty Ltd v Silvetser [2022] QCAT 218
Case: [2022] QCAT 218
Decision Date

CaseChat Overview and Summary

M Plus 2 Projects Pty Ltd (MP2) applied to the Queensland Civil and Administrative Tribunal (QCAT) for an order that the Silvesters provide security for costs of $20,000 in relation to the hearing of a counter application for damages. The Silvesters submitted that MP2 is impecunious and unable to pay costs if the application is unsuccessful. MP2 submitted that it has incurred considerable costs to date and the application should be dismissed. In dismissing the application, Member King-Scott held that the Silvesters had been dilatory in bringing the application and that MP2 had incurred significant costs in progressing the matter. The Silvesters had not provided evidence of their capacity to absorb the costs of the litigation nor evidence of their financial position. The Tribunal is not a court and the comments of Member Stilgoe in Gregg Black Constructions Pty Ltd v Brodie and Anor that the Tribunal is not a court and it has a specific statutory obligation to deal with matters in a way that is accessible, fair, just, economical, informal and quick were borne in mind.

Orders