Ryan v Worthington Simmons Builders

Case [2016] QCATA 116
CITATION:

Ryan v Worthington Simmons Builders [2016] QCATA 116
PARTIES: Andrew William Ryan
(Applicant/Appellant)
v
Steven Bryan Worthington t/as Worthington Simmons Builders
(Respondent)
APPLICATION NUMBER: APL189-13
MATTER TYPE: Appeals
HEARING DATE: On the papers
HEARD AT: Brisbane
DECISION OF: Member Deane
DELIVERED ON: 20 July 2016
DELIVERED AT: Brisbane
ORDERS MADE: 1.    Each party is to bear their own costs of the appeal proceeding.
CATCHWORDS:

APPEALS – COSTS – where both parties partially successful – whether in the interests of justice to award costs – whether an indemnity certificate in accordance with section 15 of the Appeal Costs Fund Act is available

Appeal Costs Fund Act 1973 (Qld) s 15
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 100, 102, 105, 106
Queensland Building and Construction Commission Act 1991 (Qld) s 77
Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 86.

Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
Olindaridge Pty Ltd & Wagner v Tracey [2015] QCATA 175
Pivovarova v Michelsen [2016] QCATA 45
Lyons v Dreamstarter Pty Ltd [2012] QCATA 71
Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364
Fuge v Queensland Building and Construction Commission [2014] QCAT 383
Tamawood Ltd v Paans [2005] 2 Qd R 101
Stuart Homes and Renovations v Denton [2012] QCAT 43
Brown & Anor v Noosa Constructions Pty Ltd [2012] QCATA 194

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).

REPRESENTATIVES:

APPLICANT: Andrew William Ryan represented by Mark Dillman of M&K Lawyers
RESPONDENT: Steven Bryan Worthington t/as Worthington Simmons Builders represented by David Gardiner of Counsel instructed by Eaton Lawyers

REASONS FOR DECISION

  1. On 23 September 2014 the Appeal Tribunal, as it was then constituted, allowed Dr Ryan’s application for leave to appeal or appeal, set aside the orders of the Tribunal dated 3 April 2013 and remitted the matter to the Tribunal for determination according to law.[1] 

  2. Dr Ryan seeks his costs of the appeal proceedings.  Dr Ryan advanced five grounds in his application for leave to appeal or appeal.  He contends that he succeeded on two of the grounds and, in doing so, was substantially successful and should be entitled to his costs.

  3. In the alternative, he submits each party ought to bear their own costs. 

  4. Mr Worthington contends that of the five grounds Dr Ryan succeeded in establishing an error of law in respect of only ground one and was otherwise unsuccessful. He acknowledges that in respect of ground two, the Appeal Tribunal made some observations about the computation of damages. He seeks 80% of his costs of the appeal proceedings on the District Court scale together with an indemnity certificate in accordance with section 15 of the Appeal Costs Fund Act 1973 (Qld) in respect of the one successful ground.

    Background

  5. Both parties enjoyed a measure of success in the appeal.

  6. In relation to Ground 1, we…

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Ryan v Worthington Simmons Builders [2016] QCATA 116
Case
[2016] QCATA 116
Decision Date

CaseChat Overview and Summary

In the case of Ryan v Worthington Simmons Builders, the appeal tribunal was tasked with determining the allocation of costs between Dr Ryan and Mr Worthington following a partial success in the appeal. Both parties had achieved some measure of success, with Dr Ryan succeeding on ground one and Mr Worthington on ground two of the appeal. The tribunal found that Dr Ryan had demonstrated an error of law in the initial tribunal's decision regarding procedural fairness, while Mr Worthington was found to have been awarded damages on an incorrect basis. Despite this partial success, the tribunal held that neither party was entitled to costs as the appeal did not significantly alter the outcome, and the appeal tribunal's power to award costs was limited by the need to consider the overall interests of justice.

The central legal issue before the tribunal was whether an award of costs was justified under the circumstances, given that both parties had experienced some level of success. The tribunal noted that the Queensland Building and Construction Commission Act 1991 conferred a broader discretion to award costs in building disputes than the Queensland Civil and Administrative Tribunal Act 2009. However, the tribunal also considered that the discretion to award costs in this context was still guided by the overarching principle of ensuring justice in the proceedings. The tribunal concluded that, in light of the partial success and the limited alteration to the outcome, it was not in the interests of justice to award costs to either party.

The tribunal reasoned that the broad discretion to award costs under the QBCC Act did not necessarily translate to a mandatory award of costs in every case. The tribunal highlighted the need to balance the principle of each party bearing their own costs against the broader interests of justice. Given that both parties had achieved some measure of success, the tribunal found that neither party warranted a costs order. The tribunal also considered the practical implications of awarding costs and the potential for disproportionately affecting the losing party, despite their partial success. As such, the tribunal concluded that neither party was entitled to costs from the other.

The tribunal's final order was that each party was to bear their own costs of the appeal proceeding. This decision reflects the tribunal's careful consideration of the partial success achieved by both parties, the limited alteration to the outcome, and the overarching principle of ensuring justice in the proceedings.

Orders

Orders of the court

1. Each party is to bear their own costs of the appeal proceeding.

Background

Background to the litigation

Mr Worthington contends that of the five grounds Dr Ryan succeeded in establishing an error of law in respect of only ground one and was otherwise unsuccessful. He acknowledges that in respect of ground two, the Appeal Tribunal made some observations about the computation of damages. He seeks 80% of his costs of the appeal proceedings on the District Court scale together with an indemnity certificate in accordance with section 15 of the Appeal Costs Fund Act 1973 (Qld) in respect of the one successful ground.Background Both parties enjoyed a measure of success in the appeal. In relation to Ground 1, we were satisfied that Dr Ryan had demonstrated an error of law in that the learned Member had denied Dr Ryan procedural fairness by awarding damages on a different basis to that claimed, pleaded and argued.[2][2]Ryan v Worthington [2014] QCATA 277 at [6]. In relation to Ground 2, we were satisfied that the learned Member erred in her calculation of loss and damage but for reasons other than those advanced by Dr Ryan and considered that the damages awarded to Mr Worthington ought to be reduced.[3] The Appeal Tribunal stated:Subject to our finding in respect of Ground 1 we would set aside the learned Member’s decision as to the loss and damage suffered as a result of Dr Ryan’s breach of contract and its consequential termination and substitute our own decision.[4][3]Ibid at [24].[4]Ibid at [38]. In relation to Ground 3, we were not: satisfied that an error had been demonstrated except to the extent identified in respect of Ground 2 and more generally Ground 1.[5][5]Ibid at [44]. In relation to Grounds 4 and 5, we were not satisfied that there was a demonstrated error.[6][6]Ibid at [48], [57]. Brief written submissions have been received.Law The Tribunal may award costs after the proceeding has ended.[7][7]QCAT Act s 106. The QCAT Act provides, ‘other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceedings.’[8] [8]Ibid s 100. The Tribunal’s discretion to award costs in a building dispute[9] is a broader and more general discretion than the one conferred by the QCAT Act[10] because there is an express power to award costs conferred by the Queensland Building and Construction Commission Act 1991 (Qld)[11] (‘QBCC Act’), the relevant enabling Act. Unlike in the QCAT Act, there is no strong contra-indication in s 77 of the QBCC Act against a costs order. [9]QBCC Act s 77(3)(h); Lyons v Dreamstarter Pty Ltd [2011] QCATA 142.[10]QCAT Act ss 100, 102.[11]QBCC Act s 77. This appeal arises from a building dispute. The Appeal Tribunal has previously expressly considered whether the power to award costs conferred by the QBCC Act extends to an appeal or whether it is confined to the originating proceeding.[12] I agree that the Appeal Tribunal’s power to award costs arises under s77 of the QBCC Act. It remains necessary to consider whether an award of costs is justified in the circumstances.[12] Olindaridge Pty Ltd & Wagner v Tracey [2015] QCATA 175; Pivovarova v Michelsen

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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