Tom Builder Pty Ltd v Quan Duong (No 2) - [2013] QCAT 455

CITATION:

Tom Builder Pty Ltd v Quan Duong (No 2) [2013] QCAT 455

PARTIES:	Tom Builder Pty Ltd (Applicant)
v
Van Quan Duong (Respondent)

APPLICATION NUMBER:

BDL070-11

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Michelle Howard, Member

DELIVERED ON:

30 August 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. That both parties must bear their own costs.

CATCHWORDS:

COSTS-BUILDING CONTRACT DISPUTE- where offer made before hearing ‘without prejudice save as to costs’- where offer not accepted- where history of non-compliance by party making offer

Queensland Building Services Authority Act 1991 (Qld) s77(2)(h)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s105
Queensland Civil and Administrative Tribunal Rules 2009 (Qld) Rule 86

Lyons v Dreamstarters Pty Ltd [2011] QCATA 142
Amory v QBSA [2012] QCAT 130

Chesterton as administratrix of the estate of Southion Deceased v Smith [2011] QCAT 458
Thomas v Neilson [2012] QCAT 225
Turner v QBSA [2012] QCAT 700

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

On 21 June 2013, I made orders dismissing Mr Duong’s counter-claim for damages for breach of contract of $39,636. I also made directions for the making of any application as to costs, and for the determination of any such application on the papers without an oral hearing, unless otherwise ordered.
The proceeding has a complicated history. On 25 March 2011, an application made by Tom Builder Pty Ltd for damages had previously been dismissed by the Tribunal in November 2011 because it was not progressed.[1] As will be further explained, Mr Doung’s counter-claim had also been previously determined in March 2012 in Tom Builder’s absence, but the orders in Mr Duong’s favour were set aside on appeal and the dispute remitted for hearing.[2] I then made the orders dismissing Mr Duong’s counter-claim which is referred to in paragraph 1.
[1] Tom Builder Pty Ltd v Duong [2012] QCATA 167, at paragraph [36].
[2] Tom Builder Pty Ltd v Duong [2012] QCATA 167, especially at paragraph [38].
Tom Builder seeks his costs in respect of the unsuccessful counter-claim. His application is made in the alternative for costs fixed in the sum of $13,000; costs on an indemnity basis from 22 September 2012 to be assessed if not agreed; or costs on a standard basis in accordance with the District Court Scale, to be assessed if not agreed.
The counter-claim was filed on 20 April 2011. Tom Builder made an offer to settle the counter-claim by letter dated 17 September 2012 which was marked ‘Without Prejudice save as to costs’, on the basis that the counter-claim be dismissed and each party bear their own costs. The offer was open until 5pm on 21 September 2012.
Tom Builder submits that under s 105 of the QCAT Act and Rule 86 of the Queensland Civil and Administrative Tribunal Rules 2009 (QCAT Rules), a…

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: [2013] QCAT 455
Decision Date

CaseChat Overview and Summary

Tom Builder Pty Ltd applied for costs in respect of the unsuccessful counter-claim brought by Van Quan Duong. The application was made on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009. Tom Builder sought either costs in the sum of $13,000, costs on an indemnity basis from 22 September 2012, or costs on a standard basis in accordance with the District Court Scale. The court was required to determine whether an order for costs should be made in Tom Builder's favour, and if so, on what basis.

In reaching its decision, the court considered the usual position as to costs in the Tribunal, the powers of the Tribunal to award costs in building disputes, and the relevant factors to be considered in exercising its discretion. The court noted that the usual position as to costs in the Tribunal is that each party must bear their own costs, unless otherwise provided under the QCAT Act or an enabling Act. However, in building disputes brought under the Queensland Building Services Authority Act 1991, the Tribunal has a broad general discretion to award costs. The court also considered the factors relevant to the exercise of this discretion, including the nature of the claim, the strength of the claim, and whether either party unnecessarily disadvantaged the other.

In this case, the court found that while Tom Builder was successful in having the counter-claim dismissed, there were factors which weighed against making a costs order in its favour. These factors included the lengthy history of the proceeding, Tom Builder's failure to progress its own claim, and the very brief period that the offer to settle was open. The court also noted that Mr Duong was put to the costs of two hearings rather than one, and an appeal process, due to Tom Builder's neglect to progress the proceeding in the first place. The court considered that these factors deserved greater weight than the other factors, and therefore ordered that both parties must bear their own costs.

This decision highlights the importance of considering all relevant factors when exercising the Tribunal's discretion to award costs in building disputes. While success in a claim may be a relevant factor, it is not the only factor to be considered. The court must also consider the nature and complexity of the dispute, the conduct of the proceeding, and whether either party unnecessarily disadvantaged the other. In this case, the court found that the factors weighing against making a costs order in Tom Builder's favour were sufficient to tip the scale against the making of the order.

Orders