Steve Bagnall Homes Pty Ltd v Foley - [2022] QCATA 97

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Steve Bagnall Homes Pty Ltd v Foley & Anor [2022] QCATA 97

PARTIES:

STEVE BAGNALL HOMES PTY LTD

(applicant/appellant)

V

IAN FOLEY
BERNADETTE FOLEY

(respondents)

APPLICATION NO/S:

APL342-18

ORIGINATING APPLICATION NO/S:

BDL090-15

MATTER TYPE:

Appeals

DELIVERED ON:

4 July 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown
Member King-Scott

ORDERS:

1. Steve Bagnall Homes Pty Ltd must pay Ian Foley’s and Bernadette Foley’s costs of the appeal on the standard basis to be agreed or failing agreement to be assessed on the District Court scale as if the matter had proceeded in that court.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appeal tribunal refused leave to appeal – where the appellants appeal was dismissed – determining the costs of the appeal – costs in building disputes – where the discretion to award costs in a building dispute is exercised – where the parties agree costs should be assessed on the standard basis - where the appropriate scale of costs in dispute – where the appellant argued an issue in the proceeding was a matter of public interest - whether a reduction of costs should be awarded

Queensland Building and Construction Commission Act 1991 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Oshlack v Richmond River Council (1998) 193 CLR 72

Steven Bryan Worthington t/as Worthington Simmons Builders v Dr Andrew William Ryan; Dr Andrew William Ryan v Steven Bryan Worthington t/as Worthington Simmons Builders [2022] QCATA 8

Williams v Lewer [1974] 2 NSWLR 91

APPEARANCES & REPRESENTATION:

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

This is a decision about the costs of the appeal proceedings. The Appeal Tribunal refused leave to appeal and dismissed the appeal by the appellant.[1]
[1]Steve Bagnall Homes Pty Ltd v Foley [2021] QCATA 123.
The appellant concedes that the appropriate order is that, subject to one issue, the respondents should have their costs of the appeal.
The appellants say that it should not be required to pay the costs associated with the roofing material issue. The appellant says that the issue related to a question of general importance, the determination of which was to the public advantage. This is said to arise from the interpretation by the Appeal Tribunal of particular provisions of the Building Code of Australia which may assist builders and consumers in determining the appropriate environmental category of a dwelling and the appropriate roofing material for the conditions.
The appellant says that the roofing issue constituted approximately 50% of the total amount of the quantum in dispute and took up a significant proportion of written and oral argument. The costs it should be ordered to pay, says the applicant, should be reduced by 25%.
As to the appropriate scale of costs, the appellant says that costs should…

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: [2022] QCATA 97
Decision Date: 4 July 2022

CaseChat Overview and Summary

Steve Bagnall Homes Pty Ltd appealed against a decision of the Queensland Civil and Administrative Tribunal (QCAT) and Ian Foley and Bernadette Foley (the Foleys) sought an order for costs in relation to the appeal. The appeal related to an earlier decision of QCAT in proceedings relating to a building contract. The appeal was dismissed and the Foleys sought an order for their costs of the appeal. The parties agreed that the costs of the appeal should be assessed on the standard basis but disagreed as to the appropriate scale of costs. Steve Bagnall Homes argued that the matter involved issues of public interest and the Foleys should not be awarded any costs. The court had to determine whether the Foleys were entitled to costs of the appeal and if so, the appropriate scale of those costs. The court also had to consider whether any reduction of the Foleys’ costs was appropriate. The court found that the Foleys were entitled to their costs of the appeal on the standard basis. The court found that the appropriate scale for the assessment of costs was the District Court scale. The court found that there were no grounds for reducing the Foleys’ costs. The court ordered that Steve Bagnall Homes pay the Foleys’ costs of the appeal on the standard basis to be assessed on the District Court scale.

Orders

Orders of the court

1. Steve Bagnall Homes Pty Ltd must pay Ian Foley’s and Bernadette Foley’s costs of the appeal on the standard basis to be agreed or failing agreement to be assessed on the District Court scale as if the matter had proceeded in that court.

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

The respondents say that the appellant should pay their costs of the appeal, without reduction in respect of the roofing material issue, to be assessed on the standard basis on the District Court scale. Consideration The position in relation to costs in appeal proceedings relating to building disputes was summarised by the appeal tribunal in Steven Bryan Worthington t/as Worthington Simmons Builders v Dr Andrew William Ryan; Dr Andrew William Ryan v Steven Bryan Worthington t/as Worthington Simmons Builders:[18] Costs in building dispute proceedings, including appeals, are governed not by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) but by the Queensland Building and Construction Commission Act 1991 (Qld). [19] The discretion to award costs in building dispute proceedings must be exercised judicially, not upon irrelevant or extraneous considerations but upon facts connected with or leading up to the litigation. The exercise of a discretion ‘judicially’ means for reasons that can be considered and justified. [20] Costs do not follow the event in building dispute proceedings. However, success in a proceeding and the degree of success, particularly one involving complex litigation, are relevant considerations in the exercise of the discretion to award costs. A party’s success may be a significant factor in an application for an order for costs. [21] The extent to which success in a proceeding may be eroded if a party is required to bear their own costs was considered by the Queensland Court of Appeal in Tamawood Ltd & Anor v Paans: If orders for costs were not to be made in favour of successful parties in complex cases, then just claims might not be prosecuted by persons who are unable to manage complex litigation by themselves. Such a state of affairs would truly be contrary to the interests of justice; and an intention to sanction such a state of affairs cannot be attributed to the legislature which established the Tribunal.[2] (footnotes omitted)[2][2022] QCATA 8. The starting point in the consideration of the costs of the appeal is that the respondents were entirely successful and the appellant entirely unsuccessful. The respondents should therefore have their costs. The parties are in agreement that costs should be awarded on the standard basis. They disagree as to the appropriate scale. The amount of the final decision in the proceedings at first instance was within the jurisdiction of the District Court. The appellant was ordered to pay the respondents’ costs of the proceedings below on the standard basis to be assessed on the District Court scale. It is appropriate that the respondents’ costs of the appeal be assessed on the District Court scale. Should there be any reduction in the costs payable by the appellant? Having found that the respondents should be entitled to recover their costs of the appeal we must consider whether it is appropriate to exercise our discretion to deprive the respondents of part of their costs. That discretion must be exercised judicially and “according to rules of reason and justice, not according to private opinion … or even benevolence … or sympathy”.[3][3]Williams v Lewer [1974] 2 NSWLR 91, 95; Oshlack v Richmond River Council (1998) 193 CLR 72.