Weston v Worthington - [2023] QCAT 264

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:
WESTON & ANOR V WORTHINGTON [2023] QCAT 264

PARTIES:

HEIDI WESTON

(first applicant)

ADAM WESTON
(second applicant)

v

LEONARD WORTHINGTON

(respondent)

APPLICATION NO/S:

BDL113-19

MATTER TYPE:

Building matters

DELIVERED ON:

8 February 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

Heidi Weston and Adam Weston must pay to Leonard Worthington the costs of the proceeding to be agreed or failing agreement to be assessed on the standard basis on the Magistrates Court Scale in accordance with Schedule 2, Part 3 of the Uniform Civil Procedure Rules 1999 (Qld) as if the proceeding had been brought in the Magistrates Court.

CATCHWORDS:

PROCEDURE – CIVIL PROCEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – IN ABSENCE OF SUBJECT MATTER JURISDICTION – where the dispute the subject of the proceeding not a domestic building dispute within the meaning of that term in the QBCC Act – where parties consented to proceeding being dismissed – whether power to award costs is pursuant to QBCC Act or QCAT Act – where dispute not a building dispute and costs therefore fall to be determined pursuant to the QCAT Act – whether tribunal can consider costs in absence of subject matter jurisdiction – consideration of matters in s 102(3) of the QCAT Act – where costs awarded on a standard basis

PROCEDURE – CIVIL PROCEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENT – OTHER MATTERS – where respondent made an offer to settle – whether the offer to settle contained a genuine compromise – where the offer to settle requested total capitulation by the offeree to the offeror – where the offer to settle not a genuine offer

Queensland Building and Construction Commission Act 1991 (Qld), s 47(2), s 77(3)
Queensland Civil and Administrative Tribunal Act2009 (Qld), s 102(3)

Queensland Civil and Administrative Rules 2009 (Qld), r 86

DSGN Kartell Pty Ltd v Pathmaperuma & Anor; DSGN Kartell Pty Ltd v Hennig Bros Construction Pty Ltd; DSGN Kartell Pty Ltd v Craig Russell Stranger t/as ACE Space Design [2020] QCAT 211

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 77

Steven Bryan Worthington t/as Worthington Simmons Builders v Dr Andrew William Ryan; Dr Andrew William Ryan v Steven Bryan Worthington t/as Worthington Simmons Builders [2022] QCATA 8

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

In these reasons I address the issue of the costs of the proceeding.
The Westons purchased their home from Mr Worthington in 2011. The Westons claimed that a retaining wall, constructed before the house on the property was built, had begun to fail. The Westons claimed damages from Mr Worthington. They said that Mr Worthington had designed the wall, that the design of the wall was not approved…

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 Weston v Worthington

Details

AGLC: Weston v Worthington [2023] QCAT 264
Case: [2023] QCAT 264
Decision Date

CaseChat Overview and Summary

In Weston v Worthington, the parties were involved in a dispute over costs following a building dispute which had been determined by the Queensland Civil and Administrative Tribunal (QCAT). The primary legal issue before the court was whether the costs incurred by Mr Worthington should be awarded under the provisions of the Queensland Building and Construction Commission Act 1991 (Qld) or the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The secondary issue was whether, given the nature and complexity of the dispute, and the relative strengths of the parties’ positions, an order for costs should be made in favour of Mr Worthington.

The court determined that, in the absence of a building dispute, the tribunal has no power to award costs pursuant to section 77(3) of the QBCC Act. Consequently, the costs fall to be determined in accordance with the provisions of the QCAT Act. The court also considered the principle that success in a proceeding and the degree of success, particularly one involving complex litigation, are relevant considerations in the exercise of the discretion to award costs. The court concluded that requiring Mr Worthington to bear his own legal costs would erode the success he enjoyed and that it was in the interests of justice to make an order for costs in his favour. The court ordered that the costs be assessed on the basis of an item scale, on the standard basis on the Magistrates Court scale of fees applicable to claims over $50,000.

The court's final order was that the costs incurred by Mr Worthington should be assessed in accordance with the specified guidelines. The court also noted that it was unable to fix the costs based on the material before the tribunal and that it was appropriate that costs be assessed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ultimately I am persuaded that the nature and complexity of the dispute, the relative strength of Mr Worthington’s position as opposed to the weakness of the Westons’ position and the fact that requiring Mr Worthington to bear his own legal costs would be to erode the success he enjoyed compels an order for costs. It is in the interests of justice that such an order is made in favour of Mr Worthington. Conclusion I am unable to fix the costs based on the material before the Tribunal. In my view it is appropriate that costs be assessed. That assessment should be undertaken on the basis of an item scale. This is the fairest and most accurate way of determining the costs properly recoverable by Mr Worthington. The costs should be agreed or failing agreement assessed on the standard basis on the Magistrates Court scale of fees applicable to claims over $50,000 as if the proceeding had been brought in that court. I order accordingly.

Ratio Decidendi

Legal Principle Established

In Steven Bryan Worthington t/as Worthington Simmons Builders v Dr Andrew William Ryan; Dr Andrew William Ryan v Steven Bryan Worthington t/as Worthington Simmons Builders[4] the QCAT Appeal Tribunal set out the position in relation to awarding costs in building dispute proceedings:[18] Costs in building dispute proceedings, including appeals, are governed not by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) but by the Queensland Building and Construction Commission Act 1991 (Qld).[19]The discretion to award costs in building dispute proceedings must be exercised judicially, not upon irrelevant or extraneous considerations but upon facts connected with or leading up to the litigation. The exercise of a discretion ‘judicially’ means for reasons that can be considered and justified.[20] Costs do not follow the event in building dispute proceedings. However, success in a proceeding and the degree of success, particularly one involving complex litigation, are relevant considerations in the exercise of the discretion to award costs. A party’s success may be a significant factor in an application for an order for costs. [21] The extent to which success in a proceeding may be eroded if a party is required to bear their own costs was considered by the Queensland Court of Appeal in Tamawood Ltd & Anor v Paans: If orders for costs were not to be made in favour of successful parties in complex cases, then just claims might not be prosecuted by persons who are unable to manage complex litigation by themselves. Such a state of affairs would truly be contrary to the interests of justice; and an intention to sanction such a state of affairs cannot be attributed to the legislature which established the Tribunal. (footnotes omitted).[4][2022] QCATA 8.Consideration The first issue to determine is whether costs fall to be determined under the QCAT Act or under the QBCC Act. In DSGN Kartell Pty Ltd v Pathmaperuma & Anor; DSGN Kartell Pty Ltd v Hennig Bros Construction Pty Ltd; DSGN Kartell Pty Ltd v Craig Russell Stranger t/as ACE Space Design[5] I considered the question of costs in circumstances where a proceeding for a building dispute was found not, in fact, to involve a building dispute. I said:[23] As a creature of statute, the tribunal has only those powers conferred upon it by the QCAT Act and various enabling Acts. In addition, the tribunal has certain, and limited, implied powers. [24] The issue I must consider is whether, if a proceeding is commenced in the tribunal for a building dispute, and the dispute is not in fact a building dispute, costs fall for determination under the QBCC Act or the QCAT Act. I have come to the conclusion that, in such circumstances, the costs provisions of the QCAT Act apply. [25] By s 77(1) of the QBCC Act, a person involved in a building dispute may apply to the tribunal to have the tribunal decide the dispute. The tribunal’s powers to resolve a building dispute, as set out in s 77(3) of the QBCC Act, are broad. However it is important not to confuse jurisdiction on the one hand and the powers conferred upon the tribunal once it has jurisdiction, on the other. To consider the powers of the tribunal before first determining jurisdiction would be to put the cart before the horse. Unless the tribunal has jurisdiction, the powers conferred by an enabling Act cannot be exercised. [26] Section 77(3) of the QBCC Act provides: Without limiting the tribunal’s powers to resolve the dispute, the tribunal may exercise 1 or more of the following powers … [27] The reference in s 77(3) to ‘the dispute’, is a reference to a building dispute as referred to in s 77(1). Accordingly, in my view, the powers conferred by s 77(3) are not enlivened unless the jurisdictional fact of a ‘building dispute’ is established. [28] In the absence of a ‘building dispute’ the tribunal has no power to award costs pursuant to s 77(3) of the QBCC Act. In such circumstances, costs fall to be determined in accordance with the provisions of the QCAT Act.[6][5][2020] QCAT 211.[6]Ibid at [23] – [28].