CITATION: | Mt Cotton Constructions Pty Ltd v Greer (No 2) [2017] QCAT 98 |
PARTIES: | Mt Cotton Constructions Pty Ltd |
| v | |
| Damien Greer | |
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 Davies v Nyland (1975) 10 SASR 76 |
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…
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- Case
- [2017] QCAT 98
- Decision Date
CaseChat Overview and Summary
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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