Pierpont v Zanetti & Ors - [2012] QCAT 171

CITATION:

Pierpont v Zanetti and Ors [2012] QCAT 171

PARTIES:	Adrian Pierpont
v
Paul Zanetti Michelle Zanetti (First Respondents) Adpoint Developments Pty Ltd (Second Respondent)

APPLICATION NUMBER:

B141-04

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Ann Fitzpatrick, Member

DELIVERED ON:

18 April 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

a. The Applicant and Second Respondent pay the First Respondents’ costs of the Application dated 29 July, 2010 on a standard basis to be assessed on the District Court scale of costs.

b. The First Respondents shall deliver to the Applicant and Second Respondent an itemised claim for costs referring to the relevant items contained in the District Court scale of costs.

c. If within 14 days of that delivery, the parties have not agreed on an amount of costs, the costs shall be assessed by Hickey and Garrett, Legal Costs Assessors, Level 21, 141 Queens Street, Brisbane, 4000.

d. The Applicant and Second Respondent shall pay the First Respondents’ costs (as agreed or assessed) within 14 days of such agreement or assessment.

CATCHWORDS:

Costs

Queensland Building Services Authority Act 1991, s 77(1)(h)
Queensland Civil and Administrative Tribunal Act 2009, s 100

Hallett & Ors v Queensland Building Services Authority [2011] QCAT 355
Lyons v Dreamstarters Pty Ltd [2011] QCATA 142
Oshlack v Richmond River Council (1998) 193 CLR 72
Queensland Building Services Authority v Johnston [2011] QCATA 265

APPEARANCES and REPRESENTATION (if any):

Decision made on the papers.

REASONS FOR DECISION

On 7 April, 2004 the applicant filed an application in the former Commercial and Consumer Tribunal seeking relief arising out of a building dispute, pursuant to section 77(1) of the Queensland Building Services Authority Act 1991 (QBSA Act). The First Respondents filed a counter-application.
The matter proceeded in this Tribunal to a hearing. On 26 March, 2010 the hearing was adjourned part heard, on the basis of a purported compromise between the parties.
Subsequently, the First Respondents contended that the matter had not been compromised as Mrs Zanetti had not signed the Settlement and Release Agreement. By Application for Miscellaneous Matters dated 29 July, 2010 the First Respondents sought orders including that the proceeding had not been compromised by the Settlement and Release Agreement.
On 3 November, 2010 the Tribunal found in favour of the First Respondents that the proceeding was not compromised and ordered that the parties file and serve any application for costs in relation to the application.
The Applicant and Second Respondent seek their costs incurred in defending the Application, dated 29 July, 2010 pursuant to section 102 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). Alternatively they submit that it is appropriate for the Tribunal to make an order pursuant to section 103 of the QCAT Act against the First Respondents’ previous legal representatives, Winchester Young & Maddern. In their submissions in reply to the submissions filed by the First Respondents, they further argue that if the Tribunal is not minded to order the…

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: [2012] QCAT 171
Decision Date: 18 April 2012

CaseChat Overview and Summary

The case of Pierpont v Zanetti & Ors involved an application by the Applicant, Pierpont, against the First and Second Respondents, Zanetti and others. The dispute originated from an earlier matter where the Applicant sought leave to appeal against the First Respondents' costs in that matter. The Applicant argued that the First Respondents had incurred excessive costs, which were disproportionate to the value of the case and the outcome achieved. The matter was heard in the Supreme Court of Queensland.

The court had to determine whether the costs claimed by the First Respondents were excessive and whether there were grounds for the Applicant to appeal against those costs. The Applicant argued that the costs were unreasonable and not in proportion to the value of the case. The court considered the nature of the case, the complexity involved, and the outcome achieved. It also examined the reasonableness of the costs claimed by the First Respondents in light of these factors.

The court found that the costs claimed by the First Respondents were not excessive and did not warrant an appeal against them. The court held that the First Respondents were entitled to recover their costs from the Applicant and the Second Respondents. The court further ordered that if the parties could not agree on the amount of costs within 14 days, the costs would be assessed by appointed legal costs assessors. The Applicant and the Second Respondents were also ordered to pay the First Respondents' costs within 14 days of the agreement or assessment.

The court ordered that the Applicant and the Second Respondents pay the First Respondents’ costs of the application on a standard basis, to be assessed on the District Court scale of costs. The First Respondents were required to deliver an itemised claim for costs to the Applicant and the Second Respondents. If the parties could not agree on the costs within 14 days, the costs would be assessed by Hickey and Garrett, Legal Costs Assessors. The Applicant and the Second Respondents were also ordered to pay the First Respondents’ costs within 14 days of such agreement or assessment.

Orders

Orders of the court

a. The Applicant and Second Respondent pay the First Respondents’ costs of the Application dated 29 July, 2010 on a standard basis to be assessed on the District Court scale of costs.

b. The First Respondents shall deliver to the Applicant and Second Respondent an itemised claim for costs referring to the relevant items contained in the District Court scale of costs.

d. The Applicant and Second Respondent shall pay the First Respondents’ costs (as agreed or assessed) within 14 days of such agreement or assessment.

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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