Ryan v Worthington Simmons Builders
[2016] QCATA 116
•20 July 2016
| 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 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 |
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
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]
[1]Ryan v Worthington [2014] QCATA 277.
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.
In the alternative, he submits each party ought to bear their own costs.
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 MichelsenIn Lyons v Dreamstarter Pty Ltd[13] the then President, Justice Wilson stated at [11]:
The discretion to award costs starts with the proposition that it is just and reasonable that a party who causes another to incur costs should reimburse the other party for them.[14] Otherwise, the factors affecting the discretion will vary in each case.[15]
[13][2012] QCATA 71.
[14]Latoudis v Casey [1990] HCA 59.
[15]Donald Campbell & Co v Pollak (1927) AC 732 at 811-12.
The Appeal Tribunal, in exercising its general discretion to award costs, may consider the factors referred to in s 102(3) of the QCAT Act.
The then Deputy President, Judge Kingham in Ascot v Nursing & Midwifery Board of Australia[16] stated at [9]:
The considerations identified in s 102(3) are not grounds for awarding costs. They are factors that may be taken into account in determining whether, in a particular case, the interests of justice require the tribunal to make a costs order.
[16][2010] QCAT 364.
Those considerations are largely in the nature of what may be regarded as ‘entitling’ or ‘disentitling’ factors.
Should an indemnity certificate under the Appeal Costs Fund Act 1973 (Qld) (ACF Act) be granted?
The ACF Act provides for reimbursement of legal costs under prescribed circumstances from a fund specifically established to meet those costs. The primary purpose of the fund is to ensure that parties are not financially disadvantaged by the illness of a judge or magistrate or by certain judicial errors of law.
I find that there are no grounds to grant an indemnity certificate under s 15 of the ACF Act.
The Appeal Tribunal has recently considered this issue.[17] Section 15 of the ACF Act permits a grant to a respondent where there is a successful appeal on a question of law. It is restricted to certain appeals to the Supreme Court,[18] to the High Court of Australia,[19] or to the District Court.[20]
[17]Pivovarova v Michelsen [2016] QCATA 45.
[18]ACF Act s 15(1)(a).
[19]Ibid s 15(1)(b).
[20]Ibid s 15(2).
Section 15 of the ACF Act does not provide for a grant where there is a successful appeal on a question of law to the Appeal Tribunal.
Is it in the interests of justice to exercise the discretion to award costs?
Dr Ryan contends that whilst not entirely successful he was substantially successful. His submissions do not address the factors in s 102(3) of the QCAT Act.
Whether a party acts in a way that unnecessarily disadvantages another party[21]
[21]QCAT Act s 102(3)(a).
No matters were identified in the submissions, which might give rise to a consideration of this factor. This is not, therefore, a factor which I am able to consider further.
The nature and complexity of the dispute[22]
[22]Ibid s 102(3)(b).
Mr Worthington submits that this has been a relatively complex case in which both parties have been legally represented.
I accept that the appeal proceeding involved complex legal issues, which warranted legal representation.
I accept that this is a factor in favour of an award of costs but it is not determinative.[23]
The relative strengths of the claims[24]
[23]Fuge v Queensland Building and Construction Commission [2014] QCAT 383 at [21].
[24]QCAT Act s 102(3)(c).
I am not satisfied that this is a factor in favour of an award of costs to either party.
Dr Ryan was partially successful in that the learned Member’s decision was set aside and the matter remitted. In this sense, Dr Ryan’s claims were stronger on the matters on which he succeeded. The Appeal Tribunal were also minded to set aside the calculation of loss and damage.
However, Mr Worthington was also partially successful to the extent that he successfully resisted a number of Dr Ryan’s grounds. In this sense, his claims were stronger on the matters on which he succeeded.
As the matter has been remitted for determination, the Appeal Tribunal is not currently in a position to assess whether Dr Ryan’s or Mr Worthington’s ultimate success will be eroded through these costs because the outcome is not yet known.[25] This is a factor in favour of deferring determination.
[25]Tamawood Ltd v Paans [2005] 2 Qd R 101; Stuart Homes and Renovations v Denton [2012] QCAT 43.
The primary ground on which Dr Ryan was successful was establishing an error of law made by the learned Member.
The Appeal Tribunal, constituted by the then President, Justice Wilson and Member Suthers, in an appeal from a building dispute, previously found that no order for costs was appropriate where the appellant was largely unsuccessful but was successful in establishing an error of law as in some respects the reasons were inadequate.[26] The Appeal Tribunal stated at [93] to [95]:
The Browns have been partially successful in the appeal largely because the learned Member at first instance did not give adequate reasons. In the absence of countervailing considerations, the costs of having that omission remedied should not fall upon Noosa Constructions, nor should the cost of pursuing the appeal be seen to have partially robbed the Browns of its efficacy. It is appropriate to consider the application for these costs in light of the overall result of the Appeal, and the conduct of the parties.
The financial circumstances of the parties[27]
[26]Brown & Anor v Noosa Constructions Pty Ltd [2012] QCATA 194.
[27]QCAT Act s 102(3)(e).
Neither party made submissions in relation to this factor.
This is not, therefore, a factor, which I am able to consider further.
Anything else the tribunal considers relevant[28]
[28]Ibid s 102(3)(e).
A factor, which is sometimes relevant, is whether or not either party sought to protect itself through the making of offers to settle.[29] As the ultimate outcome is not yet known, any such offers could not be assessed in my consideration of relevant factors. This is a factor in favour of deferring the determination.
[29]Ibid s 105; Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’) r 86.
Neither party sought for the determination of costs to be deferred.
Both parties enjoyed a measure of success. There was no significant dis-entitling conduct by either party. In these circumstances and weighing all of the factors, I am not satisfied that the interests of justice require that a costs order be made in favour of either party.
[2016] QCATA 45.
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