Nortask Pty Ltd v Rodriguez

DISTRICT COURT OF QUEENSLAND

CITATION:

Nortask Pty Ltd v Rodriguez [2009] QDC 318

PARTIES:

Nortask Pty Ltd (ACN 077 690 852)

Applicant/Appellant

V

Manuel Rodriguez

Respondent

FILE NO/S:

Appeal 915 of 2009

DIVISION:

Appellate

PROCEEDING:

Appeal from Commercial and Consumer Tribunal

ORIGINATING COURT:

Commercial and Consumer Tribunal

DELIVERED ON:

14 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

31 August 2009

JUDGE:

Alan Wilson SC, DCJ

ORDER:

1.   Leave to appeal is granted

2.   The appeal is allowed

3.   The order contained in paragraph 23 of the Reasons of the learned tribunal member of 6 March 2009 is set aside

4.   Order, in lieu, that each party is to bear their own costs of and incidental to the proceedings before the Commercial and Consumer Tribunal

5.   Further submissions regarding the costs of this appeal are to be provided by the parties by 5pm on 15 October 2009

CATCHWORDS:

APPEAL – COMMERCIAL AND CONSUMER TRIBUNAL – QUEENSLAND – BUILDING CONTRACT – where claim brought in tribunal for money owing for building work – where counter-claim brought in tribunal for damages for defective building work – where offer of settlement was made by appellant – where tribunal member allowed claim and counter-claim in identical amounts – where director of the Appellant company seeks be joined as a party to the application and appeal – whether a proper party to the appeal – whether error of law was made by tribunal in exercise of the discretion to award costs

Commercial and Consumer Tribunal Act 2003 s 70, s 71,
s 100(1), s 100 (6), s 126(2)(b), s 142(1)(b), s 142(3)
Domestic Building Contracts Act 2000
Queensland Building Services Authority Act 1991 s 42(3), s42(4)
Uniform Civil Procedure Rules r 750, r 785

Cases Considered:
House v The King (1936) 55 CLR 499
Tamawood Limited v Paans [2005] 2 Qd R 101

COUNSEL:

S J Armitage for appellant Nortask Pty Ltd, and Hermes Speziali
M A Jonsson for respondent Manuel Rodriguez

SOLICITORS:

Clifford Gouldson Lawyers for appellant, and Hermes Speziali
Miller Harris Lawyers for respondent

1. Nortask Pty Ltd entered into a building contract with Mr Rodriguez in 2004 which, unfortunately, ended up before the Commercial and Consumer Tribunal in 2008.  Nortask claimed $31,427.75 allegedly owed to them for building work, and interest, and Mr Rodriguez counter-claimed for damages for defective work.  The Tribunal member heard the matter on 6, 7 and 8 August 2008 and on 28 November 2008 delivered a judgment allowing Nortask’s claim in the amount of $25,838.55 – but, also, allowing Mr Rodriguez’s counter-claim in an identical amount.  The proceedings were then, in effect, a tie.

1. The parties were subsequently invited to deliver written submissions about costs, and did so.  On 6 March 2009 the Tribunal member ordered that Nortask and one of its directors, Mr Speziali, pay Mr Rodriguez’s costs of the proceedings, assessed on the standard basis and using the District Court scales relating to applications of less than $50,000.  That order was made despite the fact that Nortask had,…