Mt Cotton Constructions Pty Ltd v Greer (No 2) - [2017] QCAT 98

CITATION:	Mt Cotton Constructions Pty Ltd v Greer (No 2) [2017] QCAT 98
PARTIES:	Mt Cotton Constructions Pty Ltd (Applicant)
v
Damien Greer And Kate Greer (Respondents)
APPLICATION NUMBER:	BDL190-14
MATTER TYPE:	Building matters
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Howe
DELIVERED ON:	5 April 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The Applicant pay the Respondents costs of the proceedings including the costs of the counter application from 6 November 2015 at the District Court scale on an indemnity basis to be assessed.
CATCHWORDS:	PROCEDURE – COSTS – INDEMNITY COSTS – where applicant’s claim dismissed and respondents’ counter application dismissed – usual order costs follow the event - offer to settle under r86 before hearing – whether unreasonable for the applicant not to accept the offer – privilege – Calderbank offers – whether appropriate to award indemnity costs – appropriate scale of costs Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102(1), s 102(3)(f), s 105 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 86 Davies v Nyland (1975) 10 SASR 76 Unilever PLC v The Procter & Gamble Co [2001] 1 All ER 783 Muller v Linsley & Mortimer (a firm) [1996] PNLR 74 Cutts v Head [1984] 1 All ER 597 Barescape Pty Ltd as trustee for the V’s Family Trust & Anor v Bacchus Holdings Pty Ltd as trustee for the Bacchus Holdings Trust & Anor (No.12) [2012] NSWSC 1591 Lyons v Dreamstarter Pty Ltd [2012] QCATA 071 Oshlack v Richmond River Council [1998] HCA 11;193 CLR 72 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 AKS Investments Pty Ltd & Anor v National Australia Bank & Anor (No2) [2012] QSC 282 State of Queensland v Hayes (No 2) [2013] QSC 80 Fick v Groves (No2) [2010] QSC 182 Lyons v Dreamstarter Pty Ltd & Anor [2016] QCATA 43 Gilsan v Optus (No 4) [2005] NSWSC 1073 Giller v Procopets (No. 2) [2009] VSCA 72

APPEARANCES

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

By order made 17 January 2017 following a hearing lasting five days the claim of the applicant builder was dismissed and the counter application of the owners also dismissed. The issue of costs remains to be dealt with.
The parties have filed written submissions on costs. Various offers to settle the proceedings were made prior to hearing, by both sets of parties. Accordingly the chronology of the offers is important.

The Pleadings

The builder commenced proceedings by application filed 7 August 2014 claiming $350,345.02 as monies due under a cost plus building contract, despite the existence of a written contract for a fixed price executed between the parties. The owners filed a response and counter application on 3 September 2014 asserting the relevant contract between the parties was the fixed price contract of $138,190 plus GST; that additional sums claimed by the builder were…

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

Case: [2017] QCAT 98
Decision Date: 5 April 2017

CaseChat Overview and Summary

Mt Cotton Constructions Pty Ltd sought indemnity costs from Greer following the dismissal of their claim. The respondents, Greer, had filed a counter application which was also dismissed. The matter was brought before the court to determine the appropriate costs order following the dismissal of both the claim and the counter application. The legal issues for the court to decide were whether it was unreasonable for the applicant not to accept an offer to settle under rule 86 before the hearing and whether it was appropriate to award indemnity costs in light of the privilege and Calderbank offers.

The court found that it was unreasonable for the applicant not to accept the offer to settle under rule 86 before the hearing. The applicant's decision to reject the offer was not justified given the strength of the respondents' position and the fact that the applicant had not provided any evidence to support their claim. The court also found that it was appropriate to award indemnity costs in light of the privilege and Calderbank offers. The court noted that the applicant's conduct throughout the proceedings had been unreasonable and that the respondents had been forced to incur significant costs as a result. The court considered the appropriate scale of costs to be awarded and determined that the District Court scale was appropriate given the nature of the proceedings.

The court ordered that the applicant pay the respondents' costs of the proceedings, including the costs of the counter application from 6 November 2015, at the District Court scale on an indemnity basis to be assessed. The court found that the applicant's conduct throughout the proceedings had been unreasonable and that the respondents were entitled to be compensated for the costs they had incurred as a result. The court's decision sends a clear message that parties should not engage in unreasonable conduct in court proceedings, and that they may be held liable for the costs incurred by the other party as a result.

Orders

Orders of the court

1. The Applicant pay the Respondents costs of the proceedings including the costs of the counter application from 6 November 2015 at the District Court scale on an indemnity basis to be assessed.

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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