Nazzari v Gray (No 2) - [2023] QCAT 327

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Nazzari & Anor v Gray (No 2) [2023] QCAT 327

PARTIES:

GRAHAM NAZZARI AND RACHAEL COSSENS

(applicants)

v

JOHN GRAY

(respondent)

APPLICATION NO/S:

BDL 001-20

MATTER TYPE:

Building matters

DELIVERED ON:

30 August 2023

HEARING DATE:

Written submissions on costs

HEARD AT:

Cairns

DECISION OF:

Member Taylor

ORDERS:

1. The respondent is to pay to the applicants their costs of this proceeding fixed in the amount of $82,179.45

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – building contract dispute – where applicants sought their costs of the proceeding – identification of the relevant statutory starting point for determination of costs – whether costs should be fixed or assessed

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS – GENERAL RULE : COSTS FOLLOW THE EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION - building contract dispute – where applicants were mostly successful in pressing their claim against the respondent – where applicants sought their costs of the proceeding – where the respondent did not make any submissions on costs – whether the question of interests of justice should be determined before the question of whether costs should follow the event

Queensland Building and Construction Commission Act 1991 (Qld), s 77

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100,s 102,s 107, s145

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 87

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REPRESENTATION:

Applicant:

Cohen Legal

Respondent:

No submissions were filed

APPEARANCES:

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

REASONS FOR DECISION

Overview

On 11 May 2023 I delivered my decision in this proceeding.[1] I ordered the respondent to pay the applicants $197,681.24 in damages for breach of contract. That was against a claim pressed of $219,681.24 being what the applicants asserted was the cost to them in being left to rectify substantially defective work constructed by the respondent. The applicants also sought orders that the respondent provide them…

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 Nazzari v Gray (No 2)

Details

AGLC: Nazzari v Gray (No 2) [2023] QCAT 327
Case: [2023] QCAT 327
Decision Date

CaseChat Overview and Summary

This case involved an application by Graham Nazzari and Rachael Cossens (the applicants) seeking an order for their costs of the proceeding against John Gray (the respondent). The applicants had sought their costs of the proceeding following a successful claim against the respondent for damages in the sum of $197,681.24, which was against a claim for $219,681.24. The applicants sought their costs fixed at $82,179.45, alternatively assessed on a standard basis against the District Court Scale. The respondent did not file any submissions on costs. The Tribunal was required to consider the statutory provisions and legal principles relevant to costs in a building dispute, including the starting point for determining whether costs should be awarded, the relevant criteria for exercising the discretion to award costs, and whether the costs should be fixed or assessed. The Tribunal found that the applicants were entitled to their costs of the proceeding as they were the successful party and it would be unjust for them to bear their own costs incurred in achieving their success. The Tribunal also found that there was no basis for departing from the general rule that costs follow the event and the applicants should be awarded their costs fixed at the amount they sought. The Tribunal ordered that the respondent pay the applicants their costs of the proceeding fixed in the amount of $82,179.45.

Orders