Wharton v Duffy Constructions (Qld) Pty Ltd (No. 2) - [2015] QCAT 234

CITATION:

Wharton v. Duffy Constructions (QLD) Pty Ltd (No. 2) [2015] QCAT 234

PARTIES:	Bev Wharton (Applicants)
v
Duffy Constructions (QLD) Pty Ltd (Respondent)

APPLICATION NUMBER:

BDL212-14

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

A/Senior Member Hughes

DELIVERED ON:

26 June 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Bev Wharton is to pay to Duffy Constructions (QLD) Pty Ltd its costs fixed at $4,380.66 by 14 August 2015.

CATCHWORDS:

BUILDING DISPUTE – COSTS – where general rule that successful party is entitled to costs in building dispute – where competing expert evidence - where financial circumstances of unsuccessful party not sufficiently precarious to displace general rule that costs follow event – whether indemnity costs to be awarded – where decision to engage legal representation late in proceedings not unreasonable – where findings on expert evidence did not mean unsuccessful party did not have arguable case – whether costs to be fixed - where claimed costs reduced to standard basis – where costs reduced for issues without merit

Queensland Building and Construction Commission Act 1991 (Qld) s 77
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3, 107

A L Builders Pty Ltd v. Fatseas (No. 2) [2014] QCATA 319
Ascot v. Nursing & Midwifery Board of Australia [2010] QCAT 364
Civic Steel Homes v. Mitra [2006] QDC 322
Colgate-Palmolive v. Cussons (1993) 46 FCR 225
Faulks v. New World Constructions Pty Ltd (No. 2) [2014] QCAT 329
Joanne Baxter and Fifities Food Pty Ltd atf The Ninja Bear Trust t/as Subway Wynum Central v. Subway Realty Pty Ltd and Kennion (Trustees) Pty Ltd [2013] QCAT 316
Leo v. Paulsen [2010] QCAT 122
Lowik v. Carl Linklater Pty Ltd [2010] QCAT 287
Lyons v. Dreamstarter Pty Ltd [2012] QCATA 71
P W Woods (Builders) Pty Ltd & Anor v. Hishon [2014] QCAT 318
S.H.I.F.T. Whitsunday Pty Ltd v. McLean Cooke Pty Ltd (No. 2) [2012] QCAT 396
Stuart Homes and Renovations v. Denton & Anor [2012] QCAT 43
Tamawood Ltd v. Paans [2005] 2 QdR 101
Wharton v. Duffy Constructions (QLD) Pty Ltd [2015] QCAT 180

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

What is this Application about?

Bev Wharton unsuccessfully sought orders against Duffy Constructions (QLD) Pty Ltd in a building dispute.
Having received submissions from the parties, the remaining issue for me to decide is whether I should award costs.

Should Ms Wharton pay Duffy’s costs?

The Tribunal may award costs when deciding a building dispute.[1] This confers a broad and general discretion on the Tribunal to award costs, displacing the usual ‘no costs position’.[2]
[1]Queensland Building and Construction Commission Act 1991 (Qld) s 77(2)(h).
[2]Lyons v. Dreamstarter Pty Ltd [2012] QCATA 71 at [3] and unlike Ascot v. Nursing & Midwifery Board of Australia [2010] QCAT 364 at [6] and [28] where Kingham DCJ specifically applied the usual…

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: [2015] QCAT 234
Decision Date: 26 June 2015

CaseChat Overview and Summary

The case of Wharton v Duffy Constructions (Qld) Pty Ltd (No. 2) involved a dispute concerning building works. The plaintiff, Bev Wharton, sought recovery of costs from the defendant, Duffy Constructions (Qld) Pty Ltd, following a dispute over construction works. The dispute was heard in the Queensland Civil and Administrative Tribunal (QCAT). The primary issues before the tribunal were whether the general rule that successful parties are entitled to costs in building disputes should be applied, particularly in light of the financial circumstances of the unsuccessful party and whether indemnity costs should be awarded.

The tribunal examined the financial position of the unsuccessful party, Bev Wharton, and determined that while her circumstances were precarious, they were not sufficiently dire to justify departing from the general rule that costs follow the event. The tribunal also considered whether indemnity costs were warranted, noting that the decision to engage legal representation late in the proceedings was not unreasonable. The tribunal found that the findings on the expert evidence did not mean that Wharton did not have an arguable case. Additionally, the tribunal assessed the claimed costs, reducing them to the standard basis and making further reductions for issues without merit.

The tribunal ordered that Bev Wharton pay Duffy Constructions (Qld) Pty Ltd costs in the amount of $4,380.66, fixed by 14 August 2015. This decision underscores the tribunal’s approach to costs in building disputes, balancing the general rule with the specific circumstances of the parties involved.

Orders

Orders of the court

1. Bev Wharton is to pay to Duffy Constructions (QLD) Pty Ltd its costs fixed at $4,380.66 by 14 August 2015.

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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