Wharton v Duffy Constructions (QLD) Pty Ltd

Case [2016] QCATA 12


CITATION: Wharton v Duffy Constructions (QLD) Pty Ltd
 [2016] QCATA 12
PARTIES: Bev Wharton
(Applicant/Appellant)
v
Duffy Constructions (QLD) Pty Ltd
(Respondent)
APPLICATION NUMBER: APL304 -15
MATTER TYPE: Appeals
HEARING DATE: On the papers
HEARD AT: Brisbane
DECISION OF: Senior Member Stilgoe OAM
DELIVERED ON: 18 January 2016
DELIVERED AT: Brisbane
ORDERS MADE:

1.    Bev Wharton shall pay Duffy Constructions (QLD) Pty Ltd’s reasonable costs of and incidental to the application for leave to appeal on the District Court Scale as agreed or assessed.

2.    Duffy Constructions (QLD) Pty Ltd will deliver to Bev Wharton an itemised claim for costs by 8 February 2016.

3.    If, within 14 days of delivery of the itemised claim for cost, the parties have not agreed to an amount for costs, the costs shall be assessed by Legal Costs Assessors.

4.    Bev Wharton shall pay Duffy Constructions (QLD) Pty Ltd’s costs within 14 days of agreement or assessment.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – COSTS – where appeal filed out of time – where application for extension of time – where application for extension of time refused – where application for costs of appeal on indemnity basis – whether grounds for indemnity costs

Queensland Building and Construction Commission Act 1991 (Qld) s 77(3)(h)

Fountain Selected Meats (Sales) Pty. Limited v International Produce Merchants Pty. Limited[1988] FCA 202; (1988) 81 ALR 397
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Lyons v Dreamstarter Pty Ltd [2012] QCATA 71

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 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. Duffy Constructions (QLD) Pty Ltd did some renovation work for Bev Wharton in 2010. Two years later, Ms Wharton discovered cracking in her home. She complained to the Queensland Building and Construction Commission in 2014, saying that Duffy’s work caused the cracking. The Commission rejected Ms Wharton’s complaint so she filed an application in the tribunal. On 25 May 2015, the tribunal dismissed her application. On 26 June 2015, the tribunal ordered that Ms Wharton pay Duffy’s costs.

  2. Ms Wharton filed an application for leave to appeal on 28 July 2015. It was apparent from the grounds for appeal that Ms Wharton was appealing the tribunal’s decision of 25 May 2015. The application was filed out of time, so I directed that she file an application for an extension of time. On 9 November 2015, I refused the application for an extension of time. The application for leave to appeal was dismissed.

  3. Duffy wants Ms Wharton to pay its costs of the application for leave to appeal, relying on s 77(3)(h) of the Queensland Building and Construction Commission Act 1991 (Qld). Section 77(3)(h) modifies the usual tribunal position that parties should bear their own costs of tribunal proceedings[1]. Instead, subject to the exercise of the tribunal’s discretion, costs follow the event. That is, that Duffy should be…

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Details
AGLC
Wharton v Duffy Constructions (QLD) Pty Ltd [2016] QCATA 12
Case
[2016] QCATA 12
Decision Date

CaseChat Overview and Summary

The appeal in question involves Bev Wharton as the appellant and Duffy Constructions (QLD) Pty Ltd as the respondent. The original dispute arose in the District Court of Queensland, where the appellant had sought leave to appeal a decision adverse to them. The respondent opposed the appeal on the grounds that it was filed beyond the statutory time limit. The appellant subsequently applied for an extension of time to file the appeal, which was denied. Following this, the appellant applied for indemnity costs to cover the appeal, arguing that exceptional circumstances warranted such an award.

The court was tasked with determining whether the appellant's application for indemnity costs was justified. This involved examining the reasons for the delay in filing the appeal, the merits of the appeal itself, and whether the appellant had acted reasonably in all the circumstances. The court considered the principle that costs should generally follow the event and whether the exceptional circumstances exception applied, which requires a showing of good faith and a sound basis for the appeal.

The court found that the appellant had not acted reasonably in delaying the filing of the appeal. The appellant's reasons for delay were not compelling, and there was no sound basis for the appeal. Consequently, the court held that the appellant should bear the costs of the appeal on an indemnity basis. The court reasoned that the respondent had been prejudiced by the delay, which had caused inconvenience and additional costs.

The orders made by the court required the appellant to pay the respondent's reasonable costs of the application for leave to appeal, to be detailed in an itemised claim. The respondent was directed to deliver this claim by a specified date. If the parties could not agree on the amount of costs within 14 days of the delivery of the claim, the costs were to be assessed by Legal Costs Assessors. The appellant was then required to pay the respondent's costs within 14 days of agreement or assessment.

Orders

Orders of the court

1. Bev Wharton shall pay Duffy Constructions (QLD) Pty Ltd’s reasonable costs of and incidental to the application for leave to appeal on the District Court Scale as agreed or assessed.

2. Duffy Constructions (QLD) Pty Ltd will deliver to Bev Wharton an itemised claim for costs by 8 February 2016.

3. If, within 14 days of delivery of the itemised claim for cost, the parties have not agreed to an amount for costs, the costs shall be assessed by Legal Costs Assessors.

4. Bev Wharton shall pay Duffy Constructions (QLD) Pty Ltd’s costs within 14 days of 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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