Turner v Macrossan & Amiet Pty Ltd (No 2) - [2016] QCAT 255

CITATION:

Turner v Macrossan & Amiet Pty Ltd (No 2) [2016] QCAT 255

PARTIES:	MARKIS SCOTT TURNER (Applicant)
v
MACROSSAN & AMIET PTY LTD (ACN 131 659 384) (Respondent)

APPLICATION NUMBER:

OCL007-15

MATTER TYPE:

Occupational Regulation Matters

HEARING DATE:

3 February 2016

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

DELIVERED ON:

5 February 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

IT IS THE DECISION OF THE TRIBUNAL THAT:

1. The applicant must pay the respondent its costs of and incidental to the proceeding, to be assessed in accordance with the Magistrates Court scale of costs.

CATCHWORDS:

PROFESSIONS AND TRADES – LEGAL PRACTITIONERS – COSTS AGREEMENTS – COSTS ORDER – where the applicant was unsuccessful in his claim to set aside a legal costs agreement under s 328 of the Legal Profession Act 2007 (Qld) – where the respondent filed an application for costs to be assessed on the scale of the Supreme Court – where the respondent claimed that the Tribunal had general jurisdiction to award costs under s 328(9A) of the Legal Profession Act 2007 (Qld) – whether the respondent should receive a favourable order of costs – whether costs should be ordered on the Supreme Court scale.

Body Corporate and Community Management Act 1997 (Qld), s 270
Health Practitioner Regulation National Law Act 2009 (Qld), s 195
Legal Profession Act 2007 (Qld), s 328
Queensland Building and Construction Commission Act 1991 (Qld), s 77
Queensland Building Services Authority Act 1976 (Qld), s 77
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 6(2), 8, 32, 100, 102, sch 3
Queensland Civil and Administrative Tribunal Rules 2009 (Qld)

Lyons v Dreamstarter Pty [2012] QCATA 071
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
Samimi v Queensland Building Services Authority [2012] QCAT 133
Tamawood Ltd & Anor v Paans [2005] QCA 111

APPEARANCES and REPRESENTATION: Applications determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the “QCAT Act”).

REASONS FOR DECISION

This is an application for costs in respect of an unsuccessful application by the applicant under s 328 of the Legal Profession Act 2007 (Qld) to set aside a legal costs agreement. The decision was handed down on 5 January 2016.
The applicant submits that s 100 of the QCAT Act requires the parties to sustain their own costs, unless, in accordance with s 102 of the Act, the interests of justice require otherwise. The applicant submits the circumstances of OCL007-15 are unexceptional, and thus no costs order should be made by the Tribunal.
The Tribunal observes that s 100 of the QCAT Act provides that:
Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding. (emphasis added)
As correctly submitted by the respondent, the second disjunctive clause within the statement qualifying the general rule expressed in s 100 indicates that the general rule may be…

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: [2016] QCAT 255
Decision Date: 5 February 2016

CaseChat Overview and Summary

The matter of Turner v Macrossan & Amiet Pty Ltd (No 2) involved an application by the applicant to set aside a legal costs agreement under section 328 of the Legal Profession Act 2007 (Qld). The application was filed by the respondent, Macrossan & Amiet Pty Ltd, which sought an order for the assessment of costs on the scale of the Supreme Court. The respondent contended that the Tribunal had the general jurisdiction to award costs under section 328(9A) of the Legal Profession Act 2007 (Qld). The court was required to determine whether the respondent should receive a favourable order of costs and if the costs should be assessed on the Supreme Court scale.

The court considered the relevant provisions of the Legal Profession Act 2007 (Qld) and examined the circumstances surrounding the legal costs agreement in question. The court found that the applicant had not succeeded in establishing the grounds necessary to set aside the costs agreement. Additionally, the court held that the Tribunal did not have the jurisdiction to order costs on the Supreme Court scale under section 328(9A) of the Act. Instead, the appropriate scale for assessing costs in this matter was the Magistrates Court scale.

The court ordered that the applicant must pay the respondent's costs of and incidental to the proceeding, to be assessed in accordance with the Magistrates Court scale of costs. The respondent was therefore entitled to recover its costs from the applicant, but the assessment of those costs would be conducted according to the less generous Magistrates Court scale. This decision underscores the importance of carefully considering the jurisdictional limits and applicable legal frameworks when seeking costs in professional services matters.

Orders

Orders of the court

IT IS THE DECISION OF THE TRIBUNAL THAT:

1. The applicant must pay the respondent its costs of and incidental to the proceeding, to be assessed in accordance with the Magistrates Court scale of costs.

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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