Mobile Building System International Pty Ltd v Hua
[2014] QCATA 94
•3 April 2014
| CITATION: | Mobile Building System International Pty Ltd v Hua [2014] QCATA 94 |
| PARTIES: | Mobile Building System International Pty Ltd (Applicant/Appellant) |
| v | |
| Koji Hua (Respondent) |
| APPLICATION NUMBER: | APL572 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 3 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Pursuant to direction 1 of directions dated 3 February 2014, the application for miscellaneous matters for security of costs is allowed and Mobile Building System International Pty Ltd will pay into Romans and Romans Trust Account the sum of twenty four thousand, five hundred and twenty six dollars ($24,526.00) by 4:00pm on 1 May 2014. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL –SECURITY FOR COSTS – where builder ordered to pay damages to home owner – where appeal on quantum – where application for security for costs - where builder did not demonstrate capacity to pay costs - whether tribunal should exercise discretion to order security for costs Queensland Civil and Administrative Tribunal Hyperion Technology Pty Ltd v Queensland Motorways Ltd [2013] QSC 20 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
Mobile Building System International Pty Ltd agreed to build a duplex for Mr Hua on a steep site in Kingston. The negotiations for the contract price assumed typical footings for a mid range soil type. In fact, the soil was labelled ‘problematic’.
Mobile Building coped with the different soil conditions by varying the design of the development. Mr Hua did not approve any of the variations. On 27 August 2012, Mr Hua terminated the building contract. On 31 August 2012, Mobile Building filed an application for payment of variations. Mr Hua filed a counterclaim. On 28 November 2013, the tribunal ordered Mobile Building pay Mr Hua $168,149.
Mobile Building filed an application for leave to appeal that decision. It says the learned Member erred in fact and law in calculating the quantum of damages and the interest payable. Mr Hua then applied for security for costs pursuant to s 109 of the QCAT Act.
In considering an application for security for costs, the tribunal may have regard to[1] the financial circumstances of the parties; the prospects of success or merits of the proceeding; the genuineness of the proceeding; and anything else the tribunal considers relevant.
[1]QCAT Act s 109(4).
Despite directions allowing submissions, the tribunal has no material from Mobile Building in relation to this application.
The material before me raises concerns about Mobile Building’s capacity to pay any costs order that may result from this appeal. The affidavits of Mr Launchbury sworn January 2014 and 13 February 2014 show that the company has a paid up capital of $14. It has not responded to a creditor’s statutory demand. It has not responded to Mr Launchbury’s request that it demonstrate a capacity to meet a costs order. Mr Launchbury swears that the company holds no real estate in Queensland and it has not undertaken any residential building work since the 2011/12 financial year.
Mobile Building is appealing quantum only. Therefore, there will still be an order that it pay Mr Hua some money. Its prospects of total success on appeal are, therefore, nil. The prospects of some limited success are difficult to predict on the limited material before me.
I make no comment on the genuineness of the appeal.
I am guided by the reasoning of Daubney J in Hyperion Technology Pty Ltd v Queensland Motorways Ltd[2]: the impecuniosity of the applicant will always be a relevant, and sometimes decisive, factor. Mr Hua has not delayed in bringing this application. The directors of Mobile Building do not offer security. I am not persuaded that the application is oppressive. There is no evidence that Mr Hua caused the company’s impecuniosity. Security for costs is appropriate.
[2][2013] QSC 20 at [12].
Mr Launchbury submitted that I should order security in the sum of $41,686. That assumes a directions hearing and an oral hearing with Counsel. Mr Launchbury may be getting ahead of himself. At this stage, I will not include the cost of those steps in the order for security for costs. Should the appeal get to the point of being listed for a hearing, I will hear further submissions. I order, pursuant to direction 1 of directions dated 3 February 2014, the application for miscellaneous matters for security of costs is allowed and Mobile Building System International Pty Ltd will pay into Romans and Romans Trust Account the sum of twenty four thousand, five hundred and twenty six dollars ($24,526.00) by 4:00pm on 1 May 2014.
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