| 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 Latoudis v Casey (1990) 170 CLR 534 |
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…
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- Case
- [2015] QCATA 175
- Decision Date
CaseChat Overview and Summary
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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