Serene Star Pty Ltd v D a Radic Pty Ltd - [2018] QCAT 357

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Serene Star Pty Ltd v D A Radic Pty Ltd [2018] QCAT 357

PARTIES:

SERENE STAR PTY LTD
(applicant)

v

D A RADIC PTY LTD

(respondent)

APPLICATION NO:

BDL271-16

MATTER TYPE:

Building matters

DELIVERED ON:

24 October 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

In the absence of agreement between the parties as to the amount of costs within fourteen (14) days of the date of this order, the costs payable by D A Radic Pty Ltd to Serene Star Pty Ltd pursuant to the decision made 5 March 2018 are to be assessed on the standard basis in accordance with Schedule 3, Part 3 of the Uniform Civil Procedure Rules 1999 (Qld) applicable as at the time of the proceedings, and as if the matter was one that had been heard and decided by the Magistrates Court, by an assessor to be appointed by the tribunal.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – OFFERS OF COMPROMISE OR OFFER TO SETTLE OR CONSENT TO JUDGMENT PURSUANT TO RULES – GENERALLY – indemnity costs – power to order – whether interests of justice require an order for costs – where consent orders made compromising dispute – where consent orders require determination of basis upon which costs payable – consideration of scale on which costs should be assessed –whether offer more favourable to offeree than final outcome

Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(h)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 105, s 107(1), s 107(3)
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 86
Uniform Civil Procedure Rules 1999 (Qld), Schedule 2, Schedule 3

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
LPD Holdings (Aust) Pty Ltd v Phillips, Hickey and Toigo [2013] QCA 305
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
Lyons v Dreamstarter Pty Ltd [2012] QCATA 071
Ricchetti & Ors v Lanbuilt Pty Ltd (No 2) [2012] QCATA 259
Salam & Anor v Henley Properties (QLD) Pty Ltd [2016] QCATA 98

REPRESENTATION:

Applicant:

Barron & Allen Lawyers

Respondent:

AJ & Co Lawyers

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

On 5 March 2018 the Tribunal made orders by consent resolving the dispute between the parties. The orders include that D A Radic Pty Ltd (Radic) pay the costs of Serene Star Pty Ltd (Serene Star) to be assessed. The only issue for determination is the basis upon which the costs should be assessed.
Serene Star says that the Tribunal should fix the costs in the amount of the costs and outlays it has paid to its solicitors, in effect an order for costs on an indemnity basis. Failing this, Serene Star says that the costs should be assessed…

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.

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Details

Case: [2018] QCAT 357
Decision Date: 24 October 2018

CaseChat Overview and Summary

In Serene Star Pty Ltd v D a Radic Pty Ltd, the dispute arose from a building and construction matter regulated under the Queensland Building and Construction Commission Act 1991 (Qld). The Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining the costs incurred by Serene Star following a resolution of the dispute by consent orders. The primary legal issue before QCAT was the appropriate basis for assessing Serene Star's costs against D a Radic Pty Ltd, specifically whether indemnity costs were warranted. This involved a consideration of whether the circumstances of the case warranted an order for indemnity costs, as opposed to the usual standard costs order.

The court considered the statutory framework governing costs in QCAT proceedings, particularly in light of the Queensland Civil and Administrative Tribunal Act 2009 and the Queensland Building and Construction Commission Act 1991. It examined the principles guiding the award of indemnity costs, which include instances of misconduct, imprudent refusal of settlement offers, and other exceptional circumstances. The tribunal found that while the statutory provisions allowed for the award of indemnity costs, such an order was not automatic and required a demonstration of special or unusual features in the case that warranted such an order. Given the consent orders and the lack of evidence of misconduct or other exceptional circumstances, the tribunal determined that the costs should be assessed on the standard basis.

QCAT concluded that, in the absence of agreement between the parties regarding the amount of costs, the costs payable by D a Radic Pty Ltd to Serene Star Pty Ltd should be assessed on the standard basis in accordance with the Uniform Civil Procedure Rules 1999 (Qld). This decision was made to ensure a fair and reasonable assessment of costs, reflecting the general principles of cost awards in building disputes under the relevant legislation. The tribunal emphasized the need to exercise discretion judicially and to avoid irrelevant or extraneous considerations in determining the appropriate basis for costs.

The final order mandated that if the parties could not agree on the amount of costs within fourteen days from the date of the order, the costs would be assessed by an appointed assessor, in accordance with the specified rules and as if the matter had been heard and decided by the Magistrates Court. This approach ensured that the costs were assessed fairly and in line with the legal framework governing such disputes.

Orders

Orders of the court

In the absence of agreement between the parties as to the amount of costs within fourteen (14) days of the date of this order, the costs payable by D A Radic Pty Ltd to Serene Star Pty Ltd pursuant to the decision made 5 March 2018 are to be assessed on the standard basis in accordance with Schedule 3, Part 3 of the Uniform Civil Procedure Rules 1999 (Qld) applicable as at the time of the proceedings, and as if the matter was one that had been heard and decided by the Magistrates Court, by an assessor to be appointed by the tribunal.

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

On 2 March 2018 the parties informed the Tribunal that they had reached a resolution of the dispute and sought orders by consent including that Radic pay Serene Star’s costs to be assessed. The statutory framework and costs considerations generally In proceedings in the Tribunal, other than as provided under the Queensland Civil and Administrative TribunalAct 2009 (QCAT Act) or an enabling Act, each party must bear their own costs.[7] Here, the relevant enabling Act is the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). By s 77(3)(h) of the QBCC Act, the Tribunal may, in exercising its powers to resolve a building dispute, award costs. [7]QCAT Act, s 100. The tribunal may make a costs order in a building dispute that is justified in the circumstances. The discretion to award costs is a broad, general one and must be exercised judicially, not upon irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation.[8][8]Lyons v Dreamstarter Pty Ltd [2011] QCATA 142. By s 105 of the QCAT Act, the Queensland Civil and Administrative Tribunal Rules 2009 (QCAT rules) may authorise the tribunal to award costs if an offer to settle has been made but not accepted. By r 86 of the QCAT rules if a party makes a written offer to settle a dispute which is not accepted by the offeree and the decision of the tribunal is not more favourable to the offeree than the offer, the tribunal may award the offeror all reasonable costs incurred by the offeror in conducting the proceeding after the offer was made. While the phrase ‘all reasonable costs’ has been held to refer to costs assessed on an indemnity basis,[9] an award of indemnity costs does not automatically follow a finding by the tribunal that the requirements of r 86 have been satisfied. [10][9]Lyons v Dreamstarter Pty Ltd [2012] QCATA 071.[10]McGee v Queensland Building and Construction Commission & Anor [2018] QCATA 124. In the present case, orders have been made by consent that Radic pay Serene Star’s costs of the proceeding. The issue for determination is the quantum of those costs. The Tribunal must fix costs if possible.[11] If it is not possible to fix the costs having regard to the nature of the proceeding, the tribunal may make an order requiring that the costs be assessed under the rules.[12] In determining whether to fix costs, the tribunal is required to undertake a process approaching an informal costs assessment.[13] Whether the tribunal can undertake to fix costs will depend upon a range of factors including the nature and complexity of the matter and the evidence before the tribunal in relation to the assessment of costs.[11]QCAT Act, s 107(1).[12]Ibid, s 107(3).[13]Ricchetti & Ors v Lanbuilt Pty Ltd (No 2) [2012] QCATA 259. An applicant for an order for indemnity costs will generally be required to establish some special or unusual feature of the case to justify such an order.[14] The relevant principles guiding consideration as to the appropriateness of an order for indemnity costs are:(a)An order for costs other than on the standard basis ought not usually be made;(b)The circumstances of the particular case must warrant departure from the usual order. There should be some special or unusual feature in the case;(c)Circumstances justifying an order for indemnity costs include: making false or irrelevant allegations of fraud; misconduct causing loss of time to the court and other parties; commencing proceedings for an ulterior motive or in wilful disregard of known facts or clearly established law; making allegations that should not be made; unduly prolonging a matter on the basis of groundless contentions; imprudent refusal of an offer to settle;(d)The existence of facts and circumstances capable of warranting an order for indemnity costs does not mean that a court is obliged to make such an order. The discretion to award costs must be exercised judicially having regard to the relevant principles.[15] [14]LPD Holdings (Aust) Pty Ltd v Phillips, Hickey and Toigo [2013] QCA 305.[15]Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225.

CITATION:	Serene Star Pty Ltd v D A Radic Pty Ltd [2018] QCAT 357
PARTIES:	SERENE STAR PTY LTD (applicant)
v
D A RADIC PTY LTD (respondent)
APPLICATION NO:	BDL271-16
MATTER TYPE:	Building matters
DELIVERED ON:	24 October 2018
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Brown
ORDERS:	In the absence of agreement between the parties as to the amount of costs within fourteen (14) days of the date of this order, the costs payable by D A Radic Pty Ltd to Serene Star Pty Ltd pursuant to the decision made 5 March 2018 are to be assessed on the standard basis in accordance with Schedule 3, Part 3 of the *Uniform Civil Procedure Rules* 1999 (Qld) applicable as at the time of the proceedings, and as if the matter was one that had been heard and decided by the Magistrates Court, by an assessor to be appointed by the tribunal.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – OFFERS OF COMPROMISE OR OFFER TO SETTLE OR CONSENT TO JUDGMENT PURSUANT TO RULES – GENERALLY – indemnity costs – power to order – whether interests of justice require an order for costs – where consent orders made compromising dispute – where consent orders require determination of basis upon which costs payable – consideration of scale on which costs should be assessed –whether offer more favourable to offeree than final outcome Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(h) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 105, s 107(1), s 107(3) Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 86 Uniform Civil Procedure Rules 1999 (Qld), Schedule 2, Schedule 3 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 LPD Holdings (Aust) Pty Ltd v Phillips, Hickey and Toigo [2013] QCA 305 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 Lyons v Dreamstarter Pty Ltd [2012] QCATA 071 Ricchetti & Ors v Lanbuilt Pty Ltd (No 2) [2012] QCATA 259 Salam & Anor v Henley Properties (QLD) Pty Ltd [2016] QCATA 98
REPRESENTATION:
Applicant:	Barron & Allen Lawyers
Respondent:	AJ & Co Lawyers
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).