Vodopevic and Liddle v Knigge - [2003] QDC 37

Transcript of Proceedings

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Date: 4 April, 2003 [2003] QDC 037

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE ROBIN QC
No 3876 of 2002

LOUIS AND DORA VODOPEVIC and Appellant
WARREN AND SONIA LIDDLE
and
BRYAN KNIGGE Respondent
BRISBANE
..DATE 18/03/2003
ORDER

18032003 T21/VC2 M/T CMS32/2003 (Robin DCJ)

HIS HONOUR: This is an application for leave to appeal 1

belatedly in the sense that the applicants, Mr and Mrs

against a decision of the Queensland Building Tribunal made the legislative regime when the former provisions of the

Queensland Building Services Authority Act 1991 - which do apply to all relevant proceedings - were replaced with a new regime under which leave was no longer necessary to appeal to this Court from Tribunal decisions.

They made an application within the irregular appeal about October last year seeking the requisite leave and the parties cooperated to the extent of agreeing that the leave application ought to be heard with the appeal. Of course, success on it is a necessary preliminary to the appeal's

proceeding.
The respondent, who is the builder, Mr Knigge, cannot point to any particular prejudice flowing from the deficiencies in the applicant's procedure, but points out through his counsel Mr

Thomson that the applicants now need the additional indulgence of further time within which to apply for leave. I think that ought to be granted. Albeit by a defective procedure,
explicable in the circumstances. I mentioned at the outset, the jurisdiction of this Court was sought to be invoked at a

sufficiently early date.
The appeal desired to be brought relates to costs only.

ORDER

2 60

18032003 T21/VC2 M/T CMS32/2003 (Robin DCJ)

After protracted proceedings in the Tribunal which were 1

commenced by Mr Knigge on or about the 13th of September 1999 and in the course of which further work was done by Mr Knigge and payments were made to him (a good deal of this pursuant to
orders of the Tribunal), the parties on the eve of what boded

to be a major hearing compromised their differences on the
basis that Mr Knigge would be paid $30,000.
No agreement was reached as to costs and that is the issue which was brought before Tribunal member Mr Lohrisch on the

28th of March 2002. I understand that he had been involved in
one only of the numerous interlocutory hearings and mentions
that took place.
Some of those resulted from case management activities in the

Tribunal. It has been suggested from the Bar table today the efforts of the Tribunal were to guide the parties towards a resolution of their differences. The order made by the Tribunal member was for payment to Mr Knigge by the applicants of 80 per cent of the costs they would have obtained in

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.

Continue reading Vodopevic and Liddle v Knigge

Details

AGLC: Vodopevic and Liddle v Knigge [2003] QDC 37
Case: [2003] QDC 37
Decision Date: 18/03/2003

CaseChat Overview and Summary

Vodopevic and Liddle, the appellants, sought leave to appeal a decision of the Queensland Building Tribunal, made by Mr. Lohrisch, regarding costs. The dispute arose from a building contract where the appellants initially sued the builder, Mr. Knigge, the respondent, for defects. The matter was settled, with the appellants agreeing to pay $30,000, but no agreement was reached on costs. The Tribunal ordered the appellants to pay 80% of the costs they would have obtained according to the Magistrates Court scale for recovering $30,000. The appellants contended that the Tribunal erred in not considering a settlement offer they made, which could have influenced the costs decision.

The legal issues before the court were whether leave to appeal should be granted despite the procedural irregularity and whether the Tribunal appropriately exercised its discretion in determining the costs. The court had to consider the significance of the settlement offer, the current legal framework governing costs determination, and whether the Tribunal's decision was in line with contemporary legal principles encouraging settlement.

The court granted leave to appeal, noting that the procedural defect was explicable given the legislative changes occurring at the time. The court found that the Tribunal erred by failing to give proper weight to the settlement offer, which should have been considered under the principle that parties in dispute should be encouraged to settle. The court also held that the Tribunal's decision did not adequately reflect the disparity between the settlement offer and the Tribunal's costs order. Consequently, the court set aside the Tribunal's order and remitted the matter for further hearing, emphasizing the need for the Tribunal to consider the fair and just incidence of costs in relation to the various steps taken in the Tribunal.

Orders