Pivovarova v Michelsen

[2020] QCATA 148

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Pivovarova v Michelsen  [2020] QCATA 148

PARTIES:

TATIANA PIVOVAROVA

(applicant/appellant)

v

PETER B. MICHELSEN TRADING AS PETER MICHELSEN BUILDING ABN 84003506297

(respondent)

APPLICATION NO/S:

APL337-13

ORIGINATING APPLICATION NO/S:

BDL245-12

MATTER TYPE:

Appeals

DELIVERED ON:

13 October 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

1.   The Application for miscellaneous matters dated 2 November 2017 is dismissed.

2.   Peter B. Michelsen trading as Peter Michelsen Building is to pay Tatiana Pivovarova costs of the Appeal fixed in the amount of $1,329.33 by 4:00pm 27 November 2020.

CATCHWORDS:

COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – GENERALLY – whether alleged errors in substantive decision demonstrate grounds for disqualification

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – where appeal allowed largely due to inadequate reasons and matter remitted for determination – where ultimate decision somewhat but not substantially more favourable

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

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102, s 107, s 115, s 167, s 168, s 169

Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337

Michelsen v Pivovarova [2017] QCAT 235
Pivovarova v Michelsen [2016] QCATA 45
Pivovarova v Michelsen [2019] QCATA 54
Pivovarova v Michelsen [2019] QCA 256

Pivovarova v Michelsen [2020] HCASL 41

REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented
APPEARANCES:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’)

REASONS FOR DECISION

1. This Appeal proceeding (the First Appeal) relates to a dispute between a builder, Mr Michelsen and a homeowner, Ms Pivovarova.  The only substantive issue remaining to be determined in the First Appeal is the question of costs. 

2. Ms Pivovarova seeks an order that Mr Michelsen pays $2,658.66 calculated as follows:

   (a)Appeal Application filing fees $285.00;

   (b)Transcript costs $2,360.16;

   (c)Postage fee to serve transcript $13.50.

3. The Appeal Tribunal in the First Appeal, as originally constituted, consisted of the then President, Justice Thomas and me. Our view was that:[1]

   The factors in favour of an award of costs and against any order for costs are finely balanced.

   [1]Decision 25 February 2016: Pivovarova v Michelsen [2016] QCATA 45, [48].

4. We decided that the question of costs should be adjourned until the final decision of the matters remitted to the Tribunal by order dated 10 June 2015 had been made.[2] 

   [2]Ibid.

5. The learned Member delivered a decision on the matters remitted (the Remitted Decision).[3]  Ms Pivovarova was ordered to pay Mr Michelsen $40,990 together with interest.  The Remitted Decision was on its face more favourable to Ms Pivovarova than the learned Member’s initial decision, which was that she pay Mr Michelsen $47,800 plus interest and costs of $275.

   [3]Decision 10 July 2017: Michelsen v Pivovarova [2017] QCAT 235.

6. Ms Pivovarova appealed the Remitted Decision to the Appeal Tribunal…