Olindaridge Pty Ltd & Wagner v Tracey - [2015] QCATA 175

CITATION:

Olindaridge Pty Ltd & Wagner v Tracey [2015] QCATA 175

PARTIES:	Olindaridge Pty Ltd Rodney Keith Wagner (Applicants/Appellants)
v
Martha-Lee Tracey Todd Anthony Tracey (Respondent)

APPLICATION NUMBER:

APL379-13

MATTER TYPE:

Appeals

HEARING DATE:

28 October 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member O’Callaghan
Member Howard

DELIVERED ON:

15 December 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The parties’ applications for costs be dismissed.

CATCHWORDS:

APPEAL- COSTS- where appeal in a building dispute allowed because of error of law - where proceeding remitted to the Tribunal for rehearing - whether either party should be granted costs of appeal proceedings

Queensland Building and Construction Commission Act 1991 (Qld), s 77, schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ch 2 pt 1 div 6, s 6, s 7, s 26, s 100, s 102, s 107

Latoudis v Casey (1990) 170 CLR 534
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
Mac Developments (Gold Coast) Pty Ltd v Rams Financial Group Pty Ltd [2010] QSC 477
Oshlak v Richmond River Council (1998) 193 CLR 72
Ralacom v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
Tamawood Ltd & Anor v Paans [2005] QCA 111
West Wake Price and Co v Ching [1957] 1 WLR 45

APPEARANCES:

APPLICANT:

Mr R Ensbey, solicitor, CBP Lawyers appeared for the applicants

RESPONDENT:

Ms Martha-Lee Tracey appeared for the respondents

REASONS FOR DECISION

Olindaridge Pty Ltd (‘Olindaridge’) and Mr Wagner appealed a decision of the Tribunal in BDL 136-11 (‘the BDL File’) which awarded the Traceys an amount of $98,600.00 in respect of a building dispute. The Traceys suffered from termite damage. The appeal was successful, because the learned Member had made several errors of law. The matter was remitted to the Tribunal and on the first day of the scheduled re-hearing of the matter, the parties reached a resolution. Orders were made by consent by the Tribunal to the effect that Olindaridge and Mr Wagner pay the sum of $30,000.00 to the Traceys and that there be no order as to costs.
Both Olindaridge and Mr Wagner and the Traceys have now made cross-applications for costs of the appeal. Olindaridge and Mr Wagner seek their costs on the Magistrate’s Court Scale for claims over $50,000.00. They seek orders that costs be paid as agreed or otherwise as taxed. The Traceys seek costs in the sum of $11,000.00, being the amount of an invoice received from Bernard Knapp Lawyers, which they say relates to the appeal, as well as an amount of some $46,000.00, for various amounts which appear to relate to the BDL File.
Olindaridge and Mr Wagner say that they are entitled to their costs, because they were successful on the appeal. They submit that the proceeding is a building dispute, notwithstanding that costs are sought in the appeal proceedings. Further, they submit that the application for costs (in a building proceeding), must be determined under the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), rather…

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: [2015] QCATA 175
Decision Date: 15 December 2015

CaseChat Overview and Summary

The appeal was between Olindaridge Pty Ltd and Wagner, who were the appellants, and Tracey, the respondent. The dispute originated from a building contract and was heard in the Queensland Court of Appeal. The appellants contested the decision of the Queensland Civil and Administrative Tribunal, seeking to have the appeal allowed due to an error of law and to determine whether either party should be granted the costs of the appeal proceedings. The legal issues before the court were whether the appeal should be remitted to the Tribunal for rehearing due to an error of law, and if so, what the appropriate costs order should be.

The court examined the grounds for allowing the appeal and found that there was indeed an error of law in the Tribunal's decision. Consequently, the appeal was allowed, and the matter was remitted to the Tribunal for rehearing. Regarding the costs, the court considered the nature of the proceedings and the outcome, ultimately deciding that neither party should be granted the costs of the appeal. This decision was based on the principle that the costs of an appeal should not be awarded as a matter of course but rather in exceptional circumstances, which were not present in this case.

The court's reasoning was grounded in the statutes governing the Queensland Building and Construction Commission and the Queensland Civil and Administrative Tribunal, as well as relevant case law. It found that the principles of fairness and proportionality necessitated a balanced approach to costs in such appeals. The court's decision to dismiss both parties' applications for costs was therefore consistent with the overarching goal of ensuring that the costs of litigation do not unduly burden the parties involved.

The final order of the court was that the applications for costs by both parties be dismissed. This decision reflects the court's intention to avoid unnecessary financial strain on the parties while also upholding the integrity of the appeal process.

Orders

Orders of the court

1. The parties’ applications for costs be dismissed.

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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