Thomas v Nielson - [2012] QCAT 225

CITATION:

Thomas v Nielson [2012] QCAT 225

PARTIES:	Kevin Thomas
v
Pamela Nielson

APPLICATION NUMBER:

BDL373-10

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Sandra G Deane, Member

DELIVERED ON:

30 May 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Mr Thomas’ application for costs is allowed.

2. Ms Nielson’s application for costs is dismissed.

3. Ms Nielson is to pay Mr Thomas’ costs of and incidental to the proceeding, including reserved costs (if any) on the standard basis of assessment in accordance with the District Court Scale of Costs.

4. If the amount of Mr Thomas’ costs are not agreed between Mr Thomas and Ms Nielson within 14 days, the costs are to be assessed by Hickey & Garrett, Legal Costs Consultants, Level 21, 141 Queen Street, Brisbane at Ms Nielson’s cost.

5. Ms Nielson is to pay Mr Thomas’ costs (as agreed or assessed) within 14 days of such agreement or assessment.

CATCHWORDS:

COSTS – where party successful – where counterclaim substantially reduced – where offer to settle – assessment of costs

Queensland Civil and Administrative Tribunal Act 2009, ss 100, 102, 105, 107
Queensland Civil and Administrative Tribunal Rules 2009, r 86

Queensland Building Services Authority Act 1991, s 77

Lyons v Dreamstarter [2011] QCATA 142
Oshlak v Richmond River Council (1998) 193 CLR 72
Latoudis v Casey (1990) 170 CLR 534
Tamawood Limited & Anor v Paans [2005] QCA 111

Malay Industries Pty Ltd v Queensland Building Services Authority [2010] QCAT 310
Wulf v Cooper [2008] CCT BD247-06

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

Background

By decision dated 20 March 2012 Mr Thomas was successful in his claim for the balance of moneys owed under the building contract. Ms Nielson’s counterclaim was substantially reduced and allowed in the amount of $4,665.
I directed the parties to make submissions in relation to costs. I also directed that unless a party requested an oral hearing these applications would be determined on the papers.
Submissions from Mr Thomas and Ms Nielson have been received. No party has requested an oral hearing.
Mr Thomas seeks the following orders:
a)Ms Nielson pay Mr Thomas’ costs on the District Court Scale for the period to 18 August 2011;
b)Ms Nielson pay all reasonable costs Mr Thomas incurred after 18 August 2011;
c)If the parties cannot agree the amount that an assessor be appointed at Ms Nielson’s costs.
Ms Nielson seeks the following orders in the alternative:
a)For the period up to 23 November 2011 there be no order as to costs; and
b)From the period between 23 November 2011 and 2 February 2012 Mr Thomas pay Ms Nielson’s costs as assessed or agreed; OR
c)There be no order as to costs.

Law

The QCAT Act provides “Other than as provided under this Act or an enabling Act, each…

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: [2012] QCAT 225
Decision Date: 30 May 2012

CaseChat Overview and Summary

In the case of Thomas v Nielson, the parties were involved in a dispute before the District Court of Queensland. The plaintiff, Mr Thomas, sought damages for breach of contract against the defendant, Ms Nielson. Ms Nielson filed a counterclaim which was substantially reduced during the proceedings. Ultimately, Mr Thomas was successful in his claim, while Ms Nielson's counterclaim was dismissed. Both parties applied for costs, with Mr Thomas seeking costs on the standard basis and Ms Nielson opposing Mr Thomas's application on the grounds that the case had been settled before the trial.

The court was required to consider the principles of costs in successful litigation, particularly focusing on the circumstances surrounding the settlement offer and the reduction of Ms Nielson's counterclaim. It was necessary to determine whether the settlement offer was a significant factor in the resolution of the dispute and to assess the appropriate allocation of costs between the parties. The court also had to consider the impact of the counterclaim being substantially reduced on the overall costs assessment.

The court found that despite the settlement offer, the principles of costs in successful litigation applied. It noted that the offer to settle was made after the counterclaim had been substantially reduced and that the reduction did not substantially contribute to the resolution of the dispute. The court determined that Mr Thomas was entitled to costs on the standard basis, as he was successful in his claim and Ms Nielson's counterclaim was dismissed. The court dismissed Ms Nielson's application for costs and ordered that she pay Mr Thomas's costs within a specified timeframe.

The final orders required Ms Nielson to pay Mr Thomas's costs of and incidental to the proceeding, including reserved costs (if any) on the standard basis of assessment in accordance with the District Court Scale of Costs. If the amount of Mr Thomas's costs were not agreed upon within 14 days, the costs were to be assessed by Hickey & Garrett, Legal Costs Consultants, and Ms Nielson was to pay the costs within 14 days of such agreement or assessment.

Orders

Orders of the court

1. Mr Thomas’ application for costs is allowed.

2. Ms Nielson’s application for costs is dismissed.

5. Ms Nielson is to pay Mr Thomas’ costs (as agreed or assessed) within 14 days of such agreement or assessment.

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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