| 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 |
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
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.
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.
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…
Continue reading Wharton v Duffy Constructions (QLD) Pty Ltd
Sign in free to access the full text
- AGLC
- Wharton v Duffy Constructions (QLD) Pty Ltd [2016] QCATA 12
- Case
- [2016] QCATA 12
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.