| 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]
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…
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- AGLC
- Ryan v Worthington Simmons Builders [2016] QCATA 116
- Case
- [2016] QCATA 116
- Decision Date
CaseChat Overview and Summary
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
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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