Terera and Bolhar v Clifford (No 2)
[2016] QCATA 59
•14 April 2016
| CITATION: | Terera and Bolhar v Clifford (No 2) [2016] QCATA 59 |
| PARTIES: | Sandra Phyllis Terera Robert Bolhar (Applicants/Appellants) |
| v | |
| Allan Clifford (Respondent) |
| APPLICATION NUMBER: | APL052-15 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member O’Callaghan Member Lumb |
| DELIVERED ON: | 14 April 2016 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The parties must bear their own costs of the Appeal. |
| CATCHWORDS: | PROCEDURE – COSTS – APPEAL – where Appellants partly successful on appeal – where appeal from Domestic Building dispute – whether an order for costs should be made in favour of the legally represented respondent Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 7, s 100, s 102 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’).
REASONS FOR DECISION
By a decision of the Appeal Tribunal dated 5 February 2016 in this matter, the following orders were made:
1. Leave to adduce further evidence is refused.
2. Leave to appeal the costs order below (order number 3 of the Decision) is granted.
3. Otherwise leave to appeal is refused.
4. The appeal is allowed in part.
5. The Member's order that the application be enlarged to include the dispute in relation to the leak in the studio shower is set aside.
6. Order number 3 of the Decision is set aside.
7. Otherwise the appeal is dismissed.
8. The matter is returned to the Tribunal for reconsideration according to law on the question of costs.
9. Each party shall file and serve, within 14 days of the date of these orders, submissions in relation to the costs of the Application for leave to appeal and appeal.
Both parties have filed submissions in relation to costs.
The Appellants submit that the parties should bear their own costs. The Appellant’s primary position is that the usual order for costs provided for by s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) should apply and that there are no ‘compelling factors’ that warrant the making of a different costs order under s 102 of the QCAT Act.
The Respondent seeks an order that the Appellants pay his costs of the appeal fixed in the sum of $4,862.00[1] or, in the alternative, 90% of that amount. The Respondent submits that the Appellants were unsuccessful on the ‘substantive grounds’ relating to the dismissal of the building dispute between the parties.
[1]The Respondent has itemised those costs in paragraph 5 of his Submissions on Costs.
For the reasons that follow, we are of the view that each party should bear that party’s own costs of the appeal.
The relevant law
The Appellants refer the Tribunal to s 100 of the QCAT Act and submit that there should be no departure from the position in s 100 that each party bear their own costs.
The Respondent has not referred the Tribunal to any relevant statutory provisions to support his application for costs. He refers to two cases which were decisions of the West Australian and New South Wales Supreme Court[2] to support his position which is, in essence, that because the appeal, he says, was unsuccessful on all substantive grounds it would be unfair for the Respondent to have to bear his own legal costs.
[2]See paras [2] and [8] of Respondent’s submissions.
Neither party referred the Tribunal to s 77 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) which provides that a person involved in a ‘building dispute’ may apply to QCAT to decide the dispute. In resolving the dispute QCAT is given specific powers to ‘award costs’.[3]
[3]QBCC Act, s 77.
The provision in the QCAT Act dealing with costs can be modified by an enabling Act such as the QBCC Act.[4]
[4]QCAT Act, s 7.
In an Appeal Tribunal decision of Lyons v Dreamstarter Pty Ltd[5] it was held that in building dispute proceedings, the Tribunal has a broad general discretion under s 77 of the QBCC to award costs as are justified in the particular circumstances.[6]
[5][2011] QCATA 142, at [33]-[38].
[6]Ibid, at [33].
The Appeal Tribunal said the discretion must be exercised judicially, ‘upon facts connected with or leading up to the litigation’.
Unlike s 100 of the QCAT Act there is no strong contra-indicator in s 77 of the QBCC Act against costs orders. In essence, costs may be awarded if an award is justified in the particular circumstances.
It has been decided by the Appeal Tribunal that the provisions of s 77 apply to an application for costs in an appeal where the original proceeding involved a building dispute.[7]
[7]Olindaridge Pty Ltd & Wagner v Tracey [2015] QCATA 175.
Should costs be awarded to the Respondents under the QBCC Act?
It is appropriate to consider the application for costs in light of the overall result of the appeal and the conduct of the parties.
The Respondent correctly submits that the Appellants had only partial success on the appeal. The Appellants succeeded in relation to the issue of the leak in the studio bathroom and in relation to the costs order made below. The Appellants were unsuccessful in challenging the decision in respect of the issues of ‘lippage’, bulging of the walls and ‘picture framing’ and staining of various tiles.
With respect to the Appellants’ success in relation to the leak in the studio bathroom, the Respondent submits that the decision to include that issue was ‘precipitated, to a significant extent’ by the Appellant’s own conduct. We reject that submission. We consider the correct characterisation is that the issue was raised by the Member; that the Respondent, by his solicitor, supported (at least implicitly) the proposal to include that issue as one for determination; and that the Appellants, by Ms Terera, then acceded to the proposal. On no proper view can it be said that the Appellants ‘precipitated’ the decision to include the leak (to a significant extent or at all).
With respect to the costs order below, the Respondent submits that this was ‘ancillary’ to the main grounds of the Appeal. We also reject that submission. The issue of the costs order below was a discrete issue which was not necessarily dependent upon success or failure in relation to the building dispute issues. It had obvious financial implications for the Appellants and they were successful in having the costs order set aside and returned to the Tribunal for reconsideration.
The Respondent has not submitted that the appeal was unreasonably brought. We are of the view that merely because the Respondent chose to be legally represented and the Appellants prosecuted the appeal (and original application) without incurring legal costs,[8] this does not, of itself, support an order for costs. Here, the Appellants have had success on two substantive issues. While the Appellants failed on the remaining issues, the extent of the partial success enjoyed by the Appellants is significant. In the circumstances, we do not consider that an order of costs in favour of the Respondent is justified.
[8]See paragraph 7 of the Respondent’s Submissions on Costs.
We order that the parties must bear their own costs of the Appeal.
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