Pivovarova v Michelsen - [2016] QCATA 45

CITATION:

Pivovarova v Michelsen [2016] QCATA 45

PARTIES:	Tatiana Pivovarova (Applicant/Appellant)
v
Peter B. Michelsen trading as Peter Michelsen Building Service ABN 84003506297 (Respondent)

APPLICATION NUMBER:

APL337-13

MATTER TYPE:

Appeals

HEARING DATE:

5 November 2015 and 16 December 2015

HEARD AT:

Brisbane

DECISION OF:

Justice DG Thomas, President
Member Deane

DELIVERED ON:

25 February 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The question of costs of the appeal is adjourned until the final decision of the matters remitted to the Tribunal by order dated 10 June 2015 has been made.

2. Each party is to file in the Appeal Tribunal, and provide a copy to the other party, any additional written submissions, relating to the outcome of the matters remitted, upon which the party relies regarding costs of the appeal, within 28 days after the day the party is given written reasons for the final decision of the matters remitted to the Tribunal by order dated 10 June 2015.

3. The question of costs of the appeal will be determined on the papers:

a. if no additional submissions are received in accordance with Order 2; or

b. if additional submissions are filed, unless an oral hearing is requested by a party in its additional submissions.

CATCHWORDS:

APPEALS – DOMESTIC BUILDING DISPUTE – COSTS – where appeal allowed largely due to inadequate reasons and matter remitted for determination – whether in the interests of justice to award costs – matter adjourned until ultimate outcome known

Appeal Costs Fund Act 1973 (Qld) ss 15, 17, 22
Queensland Building and Construction Commission Act 1991 (Qld) s 77(3)(h)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 3, 4, 9, 48, 100, 102, 105, 135
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 86.

Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364

Brown & Anor v Noosa Constructions Pty Ltd [2012] QCATA 194

Donald Campbell & Co v Pollak (1927) AC 732
Frost Constructions Pty Ltd v Zoja Pty Ltd [2015] QCATA 24

Green v Council of the Shire of Burnett [1995] QPLR 91
Latoudis v Casey [1990] HCA 59

Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
Lyons v Dreamstarter Pty Ltd [2012] QCATA 71

Nursing and Midwifery Board of Australia v Clydesdale [2013] QCAT 191

Olindaridge Pty Ltd & Wagner v Tracey [2015] QCATA 175
Pivovarova v Michelsen [2015] QCATA 73

Rattan v Gunathilake [2013] QCATA 110
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412

Stuart Homes and Renovations v Denton [2012] QCAT 43
Tamawood Ltd v Paans [2005] 2 Qd R 101

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Tatiana Pivovarova in person

RESPONDENT:

Peter Michelsen in person

REASONS FOR DECISION

Ms Pivovarova was successful in her appeal to set aside the decision of 24 July 2013. By order dated 10 June 2015, the matter was remitted to the Tribunal for determination according to law.
Ms Pivovarova seeks an order that Mr Michelsen pay the following costs:
a) Appeal Application filing…

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.

Keep reading for free

Create a free CaseChat account to read Pivovarova v Michelsen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] QCATA 45
Decision Date: 25 February 2016

CaseChat Overview and Summary

The appeal in Pivovarova v Michelsen was brought by the appellant, Pivovarova, against the respondent, Michelsen, concerning a domestic building dispute. The matter originated in the Administrative Appeals Tribunal (AAT) and was remitted to the AAT for reconsideration by the Full Court of the Federal Court of Australia. The primary issue for determination by the Full Court was whether the appeal should be allowed and if it was, what should be the outcome regarding the costs associated with the appeal. The Full Court had to consider if the reasons provided by the primary decision-maker were adequate and whether it was in the interests of justice to award costs of the appeal.

The Full Court found that the primary decision-maker's reasons were inadequate and insufficiently detailed, leading to the appeal being allowed. The Court was also required to determine whether it was appropriate to award the costs of the appeal, given the complexity and the circumstances of the case. The Full Court noted that while the appeal was allowed, the matter was remitted to the AAT for further consideration and determination. This unique scenario necessitated a careful assessment of the principles guiding the award of costs in such cases. The Court concluded that the matter of costs should be deferred until the final outcome of the remitted matters was known, to ensure a just and equitable resolution.

The Full Court decided to adjourn the question of costs of the appeal until the final decision of the matters remitted to the AAT had been made. The Court ordered that both parties were to submit additional written submissions relating to the outcome of the remitted matters, within a specified timeframe, should they wish to rely on such outcomes regarding the costs of the appeal. The Court further specified that the question of costs of the appeal would be determined on the papers unless an oral hearing was requested by a party in their additional submissions. This approach allowed the Court to ensure that all relevant factors were considered in determining the costs, aligning with the principles of fairness and justice.

In summary, the Full Court allowed the appeal due to the inadequacy of the reasons provided by the primary decision-maker and remitted the matter to the AAT for reconsideration. The Court adjourned the determination of costs of the appeal until the final decision of the remitted matters was known, providing clear instructions for the parties on how to proceed with their submissions regarding the costs. This decision ensured that the matter was resolved in a manner that was both fair and just, considering all relevant circumstances and outcomes.

Orders

Orders of the court

1. The question of costs of the appeal is adjourned until the final decision of the matters remitted to the Tribunal by order dated 10 June 2015 has been made.

3. The question of costs of the appeal will be determined on the papers:

a. if no additional submissions are received in accordance with Order 2; or

b. if additional submissions are filed, unless an oral hearing is requested by a party in its additional submissions.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.