Mt Cotton Constructions Pty Ltd v Greer (No 2) - [2016] QCAT 387

CITATION:

Mt Cotton Constructions Pty Ltd v Greer & Anor (No 2) [2016] QCAT 387

PARTIES:	Mount Cotton Constructions Pty Ltd (Applicant)
v
Damian Greer and Kate Greer (Respondents)

APPLICATION NUMBER:

BDL190-14

MATTER TYPE:	Building matters
HEARING DATE:	On the papers

HEARD AT:

Brisbane

DECISION OF:	Senior Member Brown
DELIVERED ON:	24 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

Mt Cotton Constructions Pty Limited must pay to Damian Greer and Kate Greer the costs of and incidental to the application for miscellaneous matters filed 25 July 2016 fixed in the amount of $11,485.50 within fourteen (14) days.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – INDEMNITY COSTS – RELEVANT CONSIDERATIONS GENERALLY - where application by applicant to rely on further evidence refused – whether “special or unusual feature” justifying award of indemnity costs – fixing costs

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 6, 7, 100, 106, 107(1)
Queensland Building and Construction Commission Act 1991 (Qld) ss 77(3)(h)
Uniform Civil Procedure Rules 1999 (Qld) rr 690, 702, Schedule 2

Mt Cotton Constructions P/L v Greer [2016] QCAT 281
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
In The Will of Bruce George Gillespie Deceased (No 2) [2012] QSC 369
Lewis v Hillhouse & Anor [2005] QSC 78
LPD Holdings (Aust) Pty Ltd v Phillips, Hickey and Toigo [2013] QCA 305
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 531
Feyen v Charlton & Ors (No 2) [2016] QSC 138 at [16]
Cruceru v Medical Board of Australia [2016] QCAT 111

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

On 4 August 2016 I refused an application for miscellaneous matters filed on 25 July 2016 by Mount Cotton Constructions Pty Limited (MCC) to rely upon further expert evidence. The application was opposed by the Greers who now seek their costs of the application.
I will not restate at length the background to the application for miscellaneous matters and my reasons for refusing the application. Suffice it to say my reasons make clear the grounds for such refusal.[1]
[1]Mt Cotton Constructions P/L v Greer [2016] QCAT 281.
Other than as provided for under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.[2]
[2]QCAT Act s 100.
The Queensland Building and Construction Commission Act 1991 (Qld) is the relevant enabling Act in respect of this proceeding. Section 77(3)(h) of the QBCC Act gives the Tribunal the power to award costs. A jurisdiction given in general terms allows the Tribunal to make an order as to costs that is justified in the circumstances. It is a broad general discretion which must be exercised…

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: [2016] QCAT 387
Decision Date: 24 October 2016

CaseChat Overview and Summary

Mt Cotton Constructions Pty Ltd v Greer (No 2) involved an application by the applicant, Mt Cotton Constructions Pty Ltd, to rely on further evidence in support of its quantum meruit claim. The respondent, Damian Greer, opposed the application on the basis that it was an abuse of process and should be dismissed. The case was heard by the Queensland Civil and Administrative Tribunal (QCAT). The central legal issue was whether the Tribunal should exercise its discretion to allow the late evidence and, if not, whether the conduct of the applicant warranted an order for indemnity costs. The Tribunal found that the application was not hopeless and dismissed it based on the exercise of its discretion. However, the Tribunal also found that the applicant's conduct in pursuing the application was not sufficiently unusual or special to warrant indemnity costs.

The Tribunal noted that the application was brought after a lengthy delay and that the applicant's explanations for the delay and change in position regarding the evidence were unconvincing. Despite this, the Tribunal found that the application was not doomed to fail and that any award of costs should be on a standard basis or in a fixed sum reflective of such basis. The Tribunal referred to the principles in Colgate-Palmolive Company and observed that an order for indemnity costs should not be seen as too readily available. The Tribunal ultimately found that the circumstances of the application did not fall within the categories of cases identified by Sheppard J in Colgate-Palmolive Company that warrant indemnity costs. The Tribunal fixed the costs of the application in the amount of $11,485.50 to be paid by the applicant within fourteen days.

Orders

Orders of the court

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

MCC says that although the application was refused it was supported by detailed submissions by reference to the relevant authorities. It says that the application was not doomed to fail and that any award of costs should be on a standard basis or in a fixed sum reflective of such basis. Consideration In dismissing the application for miscellaneous matters I made a number of findings regarding the conduct of MCC:a) The application was brought after a lengthy delay by MCC[12];b) The explanation for the delay proffered by MCC was unconvincing[13];c) The explanation by MCC for its change in position regarding the evidence upon which it sought to rely was less than satisfactory[14];d) MCC made a decision in April 2016 not to pursue expert evidence in relation to the quantum meruit claim[15]; e) The delay by MCC in bringing the application for miscellaneous matters was significant[16].[12]Mt Cotton Constructions Pty Limited v Greer & Anor [2016] QCAT 281 at [32].[13]Ibid at [36].[14]Ibid at [37].[15]Ibid at [43].[16]Ibid at [44]. MCC’s solicitor said that after having received further expert evidence from the Greers in July 2016, he reviewed the evidence and formed the view that there were insufficient timesheets or supplier invoices in respect of the contract works to allow substantial or full recovery on a quantum meruit basis. Mr Scroope, the director of MCC, said that he did not consider that the further expert evidence was necessary at the time of the April 2016 application but that he subsequently reviewed the evidence in July 2016 which led him to form the view that expert evidence to support the quantum meruit claim was required. The conduct of MCC in first pursuing an application to rely upon further expert evidence to support the quantum meruit claim, then abandoning the application in April 2016 and then bringing essentially the same application in July 2016 can be readily criticised as my reasons for refusing the application make clear. In my view however there is not the necessary special or unusual feature of the application and the conduct of MCC and the circumstances in which the application was brought to warrant an order that MCC pay the Greers’ costs of the application on an indemnity basis. The application was not hopeless or otherwise bound to fail. The outcome of the application for miscellaneous matters turned upon the exercise by the Tribunal of the discretion to allow, or not allow, late evidence. The explanation offered by MCC for the change in tactics and delay in addressing the issues relating to the evidence was found to be less than satisfactory. That explanation, and the explanation offered by MCC’s solicitor, could not be entirely reconciled. In the event, the discretion to allow the late evidence was not exercised in favour of MCC. Notwithstanding this, the circumstances of the application do not fall within the (non-exhaustive) categories of cases identified by Sheppard J in Colgate-Palmolive Company. As McMeekin J observed, an order for indemnity costs should not be seen as too readily available.