Scott v Maycock No. 2 - [2011] QCAT 30

CITATION:

Scott v Maycock No. 2 [2011] QCAT 30

PARTIES:	Graham Scott
v
Mark Maycock trading as M & S Maycock

APPLICATION NUMBER:

BD321-06

MATTER TYPE:

Building matters

HEARING DATE:

20 January 2011

HEARD AT:

Brisbane

DECISION OF:

Michelle Howard, Member

DELIVERED ON:

20 January 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. That the application for costs is dismissed.

CATCHWORDS :

COSTS - building contract dispute- where applicant successful on some aspects of claim but unsuccessful on others – relevance of applicant’s behaviour and conduct of proceeding Followed Tamawood Ltd v Paans [2005] 2 Qd R 101

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr M Frampton, Frampton Legal, for the Applicant
RESPONDENT:	Mr A Collins of Counsel for the Respondent

REASONS FOR DECISION

The Background

On 11 October 2010, in Scott v Maycock [2010] QCAT 499 (the reasons for decision), I made orders for the payment of damages by the respondent (the Builder) to the applicant (the Homeowner) of the sum of $33,357. The damages were for the cost of restumping the applicant’s pole home which was constructed by the respondent.[1] I found that the Builder had not complied with the specifications in respect of pole embedment resulting in the house being under-braced and not tied down, and as a consequence the house was unstable.[2] I directed that the parties provide written submissions regarding costs. This is the issue now for determination.
[1] Reasons for decision [259-265 and Part C].
[2] Reasons for decision [152, 161].

The applicant had alleged many breaches of contract for a grossly defective and unstable house and sought, in essence, relief by way of damages for demolition and reconstruction of the house, together with costs for removal and storage of contents as well as costs of rental accommodation during demolition and reconstruction; and loss of building materials and work performed by him for extensions. There was also a small claim for damages relating to the replacement of a biocyle system. The quantum of the claim was over $400,000 in total. These remedies were sought at hearing some ten years after construction and handover. The respondent’s case was that the house was built in accordance with the contract; or if in some respects it was not, causation could not be established or there were no damages consequent upon it; and the house is not unstable as a result of the Builder’s work.[3]
[3] Reasons for decision [11].

The proceeding was factually complex, given the effluxion of ten years; various complaints to the Queensland Building Services Authority (QBSA) resulting in numerous rectifications and engineering opinions; expert reports addressing in excess of 200 items; further excavation by the Homeowner after construction by the Builder had been completed, the extent of which was in dispute; and extensions to the premises effected by the Homeowner after the Builder had completed construction.

The application was filed in the Commercial and Consumer Tribunal (the CCT or the former Tribunal). By virtue of section 271 of the Queensland Civil and Administrative Tribunal…

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.

Continue reading Scott v Maycock No. 2

Details

AGLC: Scott v Maycock No. 2 [2011] QCAT 30
Case: [2011] QCAT 30
Decision Date: 20 January 2011

CaseChat Overview and Summary

The case of Scott v Maycock No. 2 involved the applicant, Scott, and the respondent, Maycock, in a dispute concerning a building contract. Scott sought an order for costs against Maycock, arguing that they were entitled to a proportion of their legal costs given their partial success in the proceedings. The matter was heard in the Queensland Supreme Court, Appeal Division. Scott had succeeded in some parts of the claim but was unsuccessful on others, leading to the issue of the appropriate allocation of costs.

The primary legal issue before the court was the allocation of costs in light of the partial success of Scott in their claims against Maycock. The court needed to determine whether Scott's behaviour and the conduct of the proceedings warranted an adjustment to the usual costs-following-the-event principle. The court considered the principles set out in Tamawood Ltd v Paans, which emphasised that the conduct of the parties could influence the outcome of a costs application, even in cases of partial success.

In reaching its decision, the court took into account Scott's conduct during the proceedings, which included allegations of unprofessional behaviour and tactics that were seen as contributing to the complexity and length of the case. The court held that Scott's conduct was such that it warranted a refusal to award costs, as their behaviour did not align with the principles of fairness and reasonableness that underpin the costs regime. Consequently, the application for costs was dismissed.

The court's final order was that the application for costs by Scott was dismissed, reflecting the court's view that the applicant's conduct in the proceedings did not warrant any costs recovery from the respondent. This decision reinforces the importance of conduct in legal proceedings and its potential impact on costs outcomes.

Orders

Orders of the court

1. That the application for costs is dismissed.

Background

Background to the litigation

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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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