Edwards v Sovereign Homes (Qld) Pty Ltd (No. 2) [2022] QCATA 44

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Edwards v Sovereign Homes (Qld) Pty Ltd (no. 2) [2022] QCATA 44 PARTIES: In APL244-18: DONALD BRUCE EDWARDS (applicant/appellant) v SOVEREIGN HOMES (QLD) PTY LTD (respondent) In APL356-18: DONALD BRUCE EDWARDS (applicant/appellant) v SOVEREIGN HOMES (QLD) PTY LTD (respondent) APPLICATION NO/S: APL244-18; APL356-18 ORIGINATING APPLICATION NO/S: BDL253-15 MATTER TYPE: Appeals DELIVERED ON: 8 April 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown Member Burke ORDERS: In APL244-18: Donald Bruce Edwards pay the costs of Sovereign Homes (Qld) Pty Ltd relating to the application to adduce fresh evidence filed 14 December 2018 and the application to adduce fresh evidence filed 12 July 2019 to be agreed or failing agreement to be assessed on the indemnity basis on the District Court scale as if the applications had been brought in that Court; Otherwise, Donald Bruce Edwards pay the costs of Sovereign Homes (Qld) Pty Ltd of the proceeding to be agreed or failing agreement to be assessed on the standard basis on the District Court scale as if the proceeding had been brought in that Court. -- 1 of 6 -- 2 In APL356-18: Donald Bruce Edwards pay the costs of Sovereign Homes (Qld) Pty Ltd of the proceeding to be agreed or failing agreement to be assessed on the standard basis on the District Court scale as if the proceeding had been brought in that Court. CATCHWORDS: PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – COSTS ON INDEMNITY BASIS – consideration of costs in appeal proceedings concerning building disputes – where the appellant sought an award of costs on an indemnity basis – consideration of whether there is any special or unusual features in the conduct of the appeal proceedings to justify indemnity costs – where the appellant’s applications to adduce fresh evidence in the appeal were misconceived, irresponsible and bound to fail – where the respondent was thereby put to considerable expense in responding to the appeal, an award of indemnity costs is appropriate – where the appellant’s applications for leave to appeal or appeal could not be characterised as being conducted in such an oppressive manner that there was an abuse of process, an award of indemnity costs is not justified and costs should be awarded on the standard basis. Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(h) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Di Carlo v Dubois [2002] QCA 225 Edwards v Sovereign Homes (QLD) Pty Ltd [2020] QCATA 146 Edwards v Sovereign Homes Qld Pty Ltd [2022] QCA 4 John Holland Pty Ltd v Adani Abbott Point Terminal Pty Ltd (No 2) [2018] QSC 48 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 Todrell Pty Ltd v Finch (No 2) [2008] 2 Qd R 95 APPEARANCE: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) -- 2 of 6 -- 3 REASONS FOR DECISION SENIOR MEMBER BROWN: [1] The Appeal Tribunal dismissed two applications for leave to appeal or appeal by Mr Edwards (the decision).1 Two applications by Mr Edwards to adduce fresh evidence were also refused. [2] Mr Edwards sought, unsuccessfully, to appeal the Appeal Tribunal decision.2 [3] The costs of the appeals now fall to be determined. In these reasons I will refer to proceeding APL244-18 as ‘the substantive appeal’ and proceeding APL356-18 as ‘the costs appeal’. What do the parties say? [4] The parties were directed to file submissions on costs not exceeding five pages in length. Mr Edwards has filed submissions containing seventy-five numbered paragraphs over some fifteen pages. I would observe that this seemingly blatant disregard by Mr Edwards of the Appeal Tribunal directions is reflective of the general manner in which these appeals were conducted by him which might be described, at least in some respects, as discursive and verbose. [5] Mr Edwards’ submissions are in large part an attempt to re-litigate the proceedings at first instance and the appeal proceedings. I do not propose to address at length Mr Edwards’ submissions as they are largely irrelevant to the determination of the costs of the substantive appeal and the costs appeal and, in some respects, based upon a clear misunderstanding of the Appeal Tribunal decision and the Court of Appeal decision. I will make reference in these reasons to the submissions where appropriate. [6] Suffice it to say Mr Edwards argues that the conduct of Sovereign Homes (Qld) Pty Ltd (Sovereign) in the proceedings at first instance and in the appeals was such that it should not only be disentitled to costs in the appeal proceedings, but it should also be required to pay Mr Edwards’ costs. Mr Edwards also says that the costs of the proceedings at first instance should be remitted to the Tribunal for reconsideration. This is despite the refusal of the application for leave to appeal in the costs appeal proceeding. [7] Sovereign has filed submissions (not exceeding five pages) and says, among other things: (a) Mr Edwards should pay Sovereign’s costs of the unsuccessful applications to adduce fresh evidence on the indemnity basis; (b) Mr Edwards should pay Sovereign’s of the substantive appeal proceedings and the costs appeal proceedings on the indemnity basis; (c) The appropriate scale of costs is the District Court scale; (d) The applications to adduce fresh evidence were bound to fail, relating as they did to a ground of appeal asserting an error of law by the Tribunal at first instance. 1 Edwards v Sovereign Homes (QLD) Pty Ltd [2020] QCATA 146. 2 Edwards v Sovereign Homes Qld Pty Ltd [2022] QCA 4. -- 3 of 6 -- 4 Consideration [8] Costs may be awarded in proceedings for building disputes.3 This includes Appeal Tribunal proceedings. The QCAT Appeal Tribunal has recently observed: 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. 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. 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 [9] In my view it is in the interests of justice that Mr Edwards pay Sovereign’s costs of the substantive appeal proceedings and costs appeal proceedings. Sovereign was entirely successful in both appeals. In the substantive appeal Mr Edwards’s advanced eighteen grounds of appeal some of which contained numerous sub-grounds. The litigation was complex and Sovereign was put to considerable expense in responding to the appeal. It would unduly erode the success of Sovereign if no order for costs was made in its favour. Similarly, in the costs appeal proceedings, it is appropriate that Mr Edwards pay Sovereign’s costs. As was noted in the reasons for decision relating to the substantive appeal, while Mr Edwards relied upon two grounds of appeal in the application for leave to appeal or appeal, his appeal submissions traversed matters well beyond the identified grounds. [10] I turn now to consider the basis upon which costs should be ordered. [11] Ground of appeal 14 was relevant to the applications by Mr Edwards to adduce fresh evidence. Ground 14 raised a question of law. As was observed in the reasons for the decision, an appeal on a question of law pursuant to s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) does not involve any element of rehearing. It was noted that: It is only on an appeal on a question of fact or mixed law and fact pursuant to s 147 can this appeal tribunal undertake a consideration of all the evidence, 3 Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(h). 4 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, at [19] to [21]. -- 4 of 6 -- 5 including fresh evidence (if leave is granted for its introduction), with appropriate findings of fact and a fresh exercise of discretion.5 [12] In relation to ground of appeal 14, Mr Edwards did not assert an error of fact or mixed law and fact by the Tribunal at first instance. As such, the applications for leave to adduce fresh evidence were misconceived and bound to fail. [13] Sovereign says that Mr Edwards should pay its costs of the applications to adduce fresh evidence on the indemnity basis. Generally speaking, there must be some special or unusual feature in the case to justify a court or tribunal departing from an order for costs on the standard basis including: the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud; evidence of particular misconduct that causes loss of time to the court and the other parties; the fact that the proceedings were commenced at or continued for some ulterior motive or in wilful disregard of known facts or clearly established law; the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions; an imprudent refusal of an offer to compromise; and an award of costs on an indemnity basis against a contemnor.6 In Todrell Pty Ltd v Finch (No 2)7 Chesterman J stated: It is, of course, irresponsible to commence proceedings which cannot succeed because of a known legal impediment.8 [14] The applications to adduce fresh evidence fall within Chesterman J’s description. Section 146 of the QCAT Act is clear on its face and the meaning of the section has been made clear in numerous decisions by the Court of Appeal and the QCAT Appeal Tribunal. As such, the applications were irresponsible and an award of indemnity costs is appropriate in respect of the applications. [15] I am not however persuaded that there is any special or unusual feature in either of the appeal proceedings to justify an award of indemnity costs. Although Mr Edwards relied upon numerous grounds of appeal, some of which were abandoned, it could not be said that the proceedings were unduly prolonged by groundless contentions. Similarly, I am not persuaded that Mr Edwards conducted the appeal proceedings in such an oppressive manner that there was an abuse of process.9 In John Holland Pty Ltd v Adani Abbott Point Terminal Pty Ltd (No 2)10 Jackson J stated: A variety of things may make litigation oppressive in the relevant sense. But when the manner in which the litigation is conducted includes prolix documents, unnecessary or unwinnable contentions, or unreasonable factual assertions, that combine to cause excessive expense and delay for the other party, and a disproportionate burden on the public resources of the court in the disposition of the proceeding, it may reasonably be said that the proceeding and conduct of the moving party are oppressive.11 5 Edwards v Sovereign Homes (QLD) Pty Ltd [2020] QCATA 146, at [142]. 6 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, cited in Di Carlo v Dubois [2002] QCA 225. 7 [2008] 2 Qd R 95. 8 Ibid, at [4]. 9 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256. 10 [2018] QSC 48. 11 Ibid, at [18]. -- 5 of 6 -- 6 [16] In the absence of any special or unusual feature, and subject to what has been said about the applications to adduce fresh evidence, it is appropriate that Mr Edwards pay Sovereign’s costs of the appeals on the standard basis. Conclusion and orders [17] Taking all matters into consideration the appropriate orders are: (a) In APL244-18: (i) Donald Bruce Edwards pay the costs of Sovereign Homes (Qld) Pty Ltd relating to the application to adduce fresh evidence filed 14 December 2018 and the application to adduce fresh evidence filed 12 July 2019 to be agreed or failing agreement to be assessed on the indemnity basis on the District Court scale as if the applications had been brought in that Court; (ii) Otherwise, Donald Bruce Edwards pay the costs of Sovereign Homes (Qld) Pty Ltd of the proceeding to be agreed or failing agreement to be assessed on the standard basis on the District Court scale as if the proceeding had been brought in that Court. (b) In APL356-18: (i) Donald Bruce Edwards pay the costs of Sovereign Homes (Qld) Pty Ltd of the proceeding to be agreed or failing agreement to be assessed on the standard basis on the District Court scale as if the proceeding had been brought in that Court. MEMBER BURKE: [18] I have had the benefit of reading the reasons for the decision of the Senior Member and agree with the orders proposed. -- 6 of 6 --