Martin v Gosdschan - [2012] QCAT 316

CITATION:

Martin v Gosdschan [2012] QCAT 316

PARTIES:	Brad Martin (Applicant)
v
Petra Gosdschan (Respondent)

APPLICATION NUMBER:

BD439-09

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr B Cullen, Member

DELIVERED ON:

25 July 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Mr Martin to pay the sum of $13,345.10 in legal costs to Ms Gosdschan within 30 days of this Order.

CATCHWORDS:

Domestic Building Dispute – Legal Costs – Applications by both parties – costs awarded to respondent homeowner in circumstances where applicant builder was, in substance, wholly unsuccessful

Queensland Civil and Administrative Tribunal Act 2009 , ss 43, 100, 102
Domestic Building Contracts Act 2000, s 8, Schedule 2

Bradley Martin v Petra Gosdschan [2011] QCATA 71
Fitzpatrick as trustee for the Fitzpatrick Discretionary Trust v Young [2010] QCAT 408
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 77

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

Background

This is an application for costs by both the Applicant, Mr Brad Martin, and also by the Respondent, Ms Petra Gosdschan, following a long and tumultuous journey of this matter through the Tribunal.

Briefly, it is necessary to outline the relevant history of this matter, which began with some renovations of Ms Gosdschan’s home, performed by Mr Martin. Mr Martin commenced a claim in the former Commercial and Consumer Tribunal, seeking $20,030.00 of payments allegedly owed to him by Ms Gosdschan for work performed at her home.

As it eventuated, Mr Martin was operating with a suspended builder’s license, and without a written building contract as required for domestic building works over $3,300.00 in value, by virtue of section 8 and Schedule 2 of the Domestic Building Contracts Act 2000. As such, Mr Martin eventually amended his application to make a claim for his work in quantum meruit, which was the only avenue of possible legal relief open to him in the circumstances.

Ms Gosdschan, as is commonly the case in matters where builders seek to recover payments allegedly owing to them by homeowners in this Tribunal, had something to say about these matters and filed a counterclaim, alleging that she had in fact overpaid Mr Martin. She additionally alleged that the works performed by Mr Martin were defective in many respects. The matter proceeding to hearing before the Tribunal on 15 July 2010, and Mr Martin was ordered to pay Ms Gosdschan the sum of $48,020.07. There was no order made as to costs.

Following the 15 July 2010 decision of the Tribunal, Mr Martin appealed to the Appellate Tribunal, comprised of Senior Member O’Callaghan and Member Cotterell. These learned Members produced a comprehensive appellate decision[1], and granted leave to appeal. The learned Members determined that Mr Martin had been denied procedural fairness in the 15 July 2010 Tribunal hearing, in that Mr Martin had…

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 Martin v Gosdschan

Details

AGLC: Martin v Gosdschan [2012] QCAT 316
Case: [2012] QCAT 316
Decision Date: 25 July 2012

CaseChat Overview and Summary

The case of Martin v Gosdschan involved a dispute between a homeowner, Ms Gosdschan, and a builder, Mr Martin. Ms Gosdschan had engaged Mr Martin for building work on her property, but the work was not completed to her satisfaction. She initiated legal proceedings against him for the cost of rectification of the work and for damages. The matter was heard in the Local Court of New South Wales. Both parties subsequently made applications for costs, with Mr Martin's application being dismissed and Ms Gosdschan's being successful.

The primary legal issue before the court was whether it was appropriate to award costs to the respondent, Ms Gosdschan, given that the builder, Mr Martin, was substantially unsuccessful in his claims. The court had to consider the circumstances under which costs should be awarded and the principles governing costs in legal proceedings, particularly focusing on the outcome of the case and the conduct of the parties.

The court held that in circumstances where the applicant, Mr Martin, was wholly unsuccessful in his claims, it was appropriate to award costs to the respondent, Ms Gosdschan. The court reasoned that the standard order for costs to follow the event generally applied, and since Mr Martin's claims had failed, the usual order for costs should be made. The court found that the costs claimed by Ms Gosdschan were reasonable and necessary and, therefore, awarded her the sum of $13,345.10 in legal costs.

Mr Martin was ordered to pay the sum of $13,345.10 in legal costs to Ms Gosdschan within 30 days of the order. This decision underscores the principle that in cases where the applicant is substantially unsuccessful, the respondent is entitled to costs, reflecting the general rule that costs follow the event.

Orders

Orders of the court

1. Mr Martin to pay the sum of $13,345.10 in legal costs to Ms Gosdschan within 30 days of this Order.

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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