Allen & Anor v Contrast Constructions Pty Ltd (No 3) [2021] QCATA 143

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Allen & Anor v Contrast Constructions Pty Ltd (No 3) [2021] QCATA 143 PARTIES: REECE JUSTIN ALLEN CHANTELL RENEE MARIA TAYLOR (applicants) v CONTRAST CONSTRUCTIONS PTY LTD (respondent) APPLICATION NO/S: APL181-20 MATTER TYPE: Building matters DELIVERED ON: 30 November 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Allen QC, Deputy President Member Traves ORDERS: The applicants pay the respondent’s costs of and incidental to the application for a stay and the application for leave to appeal and the appeal, such costs to include the respondent’s costs reserved on the oral hearing. The said costs are to be agreed within 14 days, or if not agreed within 14 days, are to be assessed on the standard basis on the District Court scale, by a costs assessor appointed by the Registrar of the Tribunal. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – where unsuccessful appeal by applicants of interlocutory decision refusing to stay the proceedings – where applicants applied for costs – whether costs provisions under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) or s 77 of the Queensland Building and Construction Commission Act 1991 (Qld) apply – where applicant successful in establishing error of law in decision below – where applicant ultimately unsuccessful on discretionary grounds – whether order for costs should be made -- 1 of 12 -- 2 APPEARANCES & REPRESENTATION: Applicant: Respondent: Queensland Building and Construction Commission Act 1991 (Qld), s 77 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 87 Grace v Grace (No 9) [2014] NSWSC 1239 Lyons v Dreamstarter Pty Ltd [2012] QCATA 71 Nine Network Australia Pty Ltd v Wagner [2021] QCA 84 Olindaridge Pty Ltd & Wagner v Tracey [2015] QCATA 175 Pivovarova v Michelsen [2016] QCATA 45 Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39 Tey v Optima Financial Group Pty Ltd [2012] WASCA 193 Project Legal Construct Law Group 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 [1] On 1 July 2020 the applicants (the owners) applied for leave to appeal and to appeal an interlocutory decision of a Senior Member dated 21 May 2020. By that decision the Senior Member refused the owners’ application for the proceeding filed by the respondents (BDL219-19) to be dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) or otherwise stayed pending compliance with dispute resolution clauses in the contract between the parties (the appeal for the purposes of this decision). [2] On 16 September 2020 the Appeal Tribunal refused the owners’ application to stay the decision of the Senior Member of 21 May 2020. No order as to costs was made. [3] On 28 October 2020 the parties were each given leave to be legally represented. [4] On 4 November 2020 the owners applied for an oral hearing of the appeal. On 16 November 2020 the application for an oral hearing was granted and the matter subsequently set down for a hearing on 3 December 2020. [5] On 3 December 2020 the owners did not appear. Orders were made in the absence of the owners as follows: 1. The Tribunal vacates the order made 16 November 2020 granting the application for an oral hearing. -- 2 of 12 -- 3 2. The Tribunal vacates the direction of same date listing the matter for an oral hearing. 3. The Tribunal directs that the further hearing and determination of the application for leave to appeal, and appeal, will be heard on the papers. 4. The costs of today’s hearing be reserved. [6] On 15 April 2021 the Appeal Tribunal granted leave to appeal but dismissed the appeal (APL181-20).1 No order regarding costs was made. The respondent’s application for costs and submissions [7] On 13 May 2021 the respondent filed an application in APL181/20 seeking an order as to costs in the following terms: 1. The appellants pay the respondent’s costs of the appeal (including the costs of the Appellants’ application to stay) on the standard basis and the Appellants pay the Respondent’s costs of preparation for and appearance on 3 December 2020 on the indemnity basis. 2. In the alternative, the Appellants pay the Respondent’s costs of the appeal (including the costs of the Appellants’ application to stay) on the standard basis. 3. The costs be assessed on the District Court scale. [8] The respondent submitted that it is entitled to costs under either s 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) or s 77(2) of the Queensland Building and Construction Commission Act 1991 (QBCC Act). [9] The respondent submitted that the owners had partial, though ultimately hollow, success on appeal, only succeeding in showing an arguable case of error on two grounds: that the dispute resolution clause applied to the dispute notwithstanding termination and that the parties had not complied with the dispute resolution clause. The Appeal Tribunal, it was submitted, had found that s 77(2) of the QBCC Act had been complied with, the Tribunal had power to order a stay and no error in the exercise of discretion in refusing to grant the stay had been demonstrated and, further, that if it was to exercise the discretion again, it would exercise it in the same way. It followed, it was submitted, that the owners had always been unlikely to succeed on the substantive merits in the appeal. The respondent submitted that costs should follow the event and that the owners should pay its costs of the appeal on the standard basis. [10] It submits, insofar as the discretion under s 102 of the QCAT Act applies, that the ‘interests of justice’ weigh in favour of costs being awarded in their favour. [11] The respondent also sought costs of the application brought by the owners to stay the operation of the decision below until the appeal had been determined on the same grounds as the appeal costs. They say that their costs of successfully resisting the application for a stay ought be included as part of the costs order in the appeal. [12] In relation to the costs of appearing at the hearing on 3 December 2020 which the owners did not attend, costs are sought on an indemnity basis. At the hearing the respondent had given instructions to proceed to have the Appeal Tribunal determine the appeal on the papers, rather than to apply for summary dismissal of the appeal. 1 Allen & Anor v Contrast Constructions Pty Ltd (No 2) [2021] QCATA 43. -- 3 of 12 -- 4 They say, but for the owners’ insistence on the appeal being held orally or their failure in notifying the Tribunal and the respondent that it would not appear in person, that the costs of preparing for and appearing on the oral hearing would not have been incurred. The appeal would simply, it was submitted, have been determined on the papers. The respondent says this is a special circumstance which enlivens the discretion to award costs of preparing for and appearing at the hearing on 3 December 2020 on the indemnity basis. The owners’ submissions [13] The owners submit that each party should bear their own costs for each of the stay application; costs of the oral hearing on 3 December 2020; and costs of the appeal. In the alternative, if an order as to costs is made, then the only order open is that those costs are the respondent’s costs in the cause to form part of the respondent’s costs of the underlying proceedings (BDL219-19), whereas the owners are entitled to no order as to costs. In relation to the costs of the costs application itself, the owners submit that each party should bear their own costs. Alternatively, if an order is made that costs are in the cause then the costs application was always not going to succeed (there being no costs orders in the stay decision or appeal decision permitting a costs application to be made). In which case, it is submitted, the respondent is entitled to no costs for the costs application and the owners’ costs in resisting the costs application. [14] The owners submit that s 77(3)(h) of the QBCC Act does not apply to appeals to the Appeal Tribunal in interlocutory applications, in which case the source of jurisdiction is the appeal jurisdiction and the relevant sections, s 100 and s 102 of the QCAT Act. In any event, it is submitted that if s 77(3)(h) of the QBCC Act applies, the factors in s 102(3) of the QCAT Act may nonetheless be considered in the exercise of the discretion to award costs (referring to Pivovarova v Michelsen [2016] QCATA 45 at [28]). The difference between s 100 of the QCAT Act and s 77 of the QBCC Act being that under the former provision, a presumption that each party bears their own costs applies, whereas under s 77 there is no presumption. [15] The owners make submissions in some detail addressing the discretionary factors in s 102 of the QCAT Act (which refer to the factors in s 48 of the QCAT Act). We will not repeat those here, except where we consider appropriate. [16] The owners submitted that the complexity of the jurisdictional issues raised by the interlocutory decision were germane to both parties, and for that reason was not relevant to the issue of costs (referring to J.Mac Constructions Pty Ltd v Queensland Building and Construction Commission [2019] QCAT 249). They submitted that the decision was finely balanced and ultimately turned on the exercise of a discretion. Further, that a successful party may be denied costs where the appeal turns on a question not raised below, referring to the points that s 77(2) of the QBCC Act did not require notice to be provided to specific persons and that the source of the stay power was not correctly identified. It was submitted, in respect of two decisions (4D Electrical Qld v Greyburn Pty Ltd [2020] QCAT 74 and Kime v Klepper [2020] QCAT 207), that the owners would not have had an opportunity to provide submissions regarding their correctness without taking the decisions to the Appeal Tribunal. It was submitted that it was the respondent’s conduct, where it was the actual -- 4 of 12 -- 5 wrongdoer, that justified the appeal.2 The owners referred to Douglas J in Santos Limited v Fluor Australia Ltd [2016] QSC 129 at [18]-[27] in support of the importance of holding parties to their bargains. They submitted that the parties here should have been held to their bargain, that the respondent’s conduct and attitude in not adhering to the contract justified the appeal and that therefore no order as to costs should be made. Finally, the owners submitted that the question of costs should be adjourned until a final decision in the underlying proceedings has been made and that this was the position taken by the Appeal Tribunal in Pivovarova v Michelsen.3 [17] In relation to the costs of interlocutory proceedings, which the owners say comprise the costs of the stay proceeding, costs of the hearing and costs of the appeal, the owners submitted that the following common law principles apply, namely that in the case of interlocutory applications where the order is silent as to costs, that costs are in the cause. The owners referred in support of that proposition to the case of Tey v Optima Financial Group Pty Ltd [2012] WASCA 193 at [21] which they said reaffirmed a principle of law which has applied for almost two centuries [18] Further, that the interests of justice in any event suggest each party should bear their own costs for the following reasons: the stay would not have caused any prejudice because the respondent had not taken steps to amend their claim in accordance with Tribunal orders and otherwise not progressed the matter; the stay decision turned on the exercise of a discretion contrary to guidance from Santos Ltd v Fluor Australia Pty Ltd; and involved an important and novel question of the proper construction of s 77(2) of the QBCC Act. [19] In relation to the costs of the oral hearing, the owners submitted that the meaning of the order made, that “the costs of today’s hearing be reserved” is that the question as to the incidence of costs is reserved without the Tribunal expressing any opinion as to who should bear them. They say such an order is common in interlocutory applications where the costs are to be subject to some other order, if given. However, in these proceedings, the owners submitted, there was no such other order because the Appeal Tribunal in its decision dated 15 April 2921 made no order as to costs which they say points strongly against the respondent applying for its costs of oral hearing. [20] Finally, the owners submitted that an order for costs should not be made because they had been denied natural justice by the Appeal Tribunal hearing the appeal on the papers in the circumstances, essentially because they had not been heard on the question and had not been given an opportunity to provide a reasonable explanation for their failure to appear. Consideration [21] The owners have identified three legal issues which require consideration. First, the source of the power to award costs in the present circumstances. Secondly, whether the Appeal Tribunal is now able to make orders for costs in circumstances where it did not deal with the issue of costs at the time of the decision on the stay application or at the time of the decision on the application for leave to appeal and appeal. (It will be noted that the costs of the appearance on the appeal were reserved.) Thirdly, 2 That conduct included their conduct in not submitting the entire dispute to the QBCC; not submitting the contract to the QBCC; not providing a Notice of Dispute as required by the contract and not having met at least once to resolve on methods for resolving the dispute. 3 [2016] QCATA 45 at [43]. -- 5 of 12 -- 6 whether the power of the Appeal Tribunal to make an order for costs on the interlocutory application for a stay, where no order was made at the time, is constrained in the manner in which the owners contend or whether the power effectively remains unfettered. [22] The owners also raised a number of matters going to the exercise by the Appeal Tribunal of its discretion on costs in relation to each of the matters requiring attention, namely, the stay application and the application for leave to appeal and appeal. Within the issue of the costs of the application for leave to appeal and appeal, there was a discrete issue as to the treatment of the costs of the oral hearing, which the owners requested but, unlike the respondent, did not attend. The costs of the application for costs fall within each of the costs of the stay application, and application for leave to appeal and appeal respectively. [23] In broad terms the owners addressed these issues through the framework of the grounds in s 102 of the QCAT Act. We have considered these submissions although note that the discretion in s 77(2)(h) of the QBCC Act requires that the discretion be exercised judicially but does not require that the factors in s 102 of the QCAT Act be considered. Source of the power to award costs [24] Section 77 of the QBCC Act provides that: 77 Tribunal may decide building dispute (1) A person involved in a building dispute may apply, as provided under the QCAT Act, to the tribunal to have the tribunal decide the dispute. (2) However, the person may not apply to the tribunal unless the person has complied with a process established by the commission to attempt to resolve the dispute. (3) Without limiting the tribunal’s powers to resolve the dispute, the tribunal may exercise 1 or more of the following powers— (a) order the payment of an amount found to be owing by 1 party to another; (b) order relief from payment of an amount claimed by 1 party from another; (c) award damages, and interest on the damages at the rate, and calculated in the way, prescribed under a regulation; (d) order restitution; (e) declare any misleading, deceptive or otherwise unjust contractual term to be of no effect, or otherwise vary a contract to avoid injustice; (f) avoid a policy of insurance under the statutory insurance scheme; (g) order rectification or completion of defective or incomplete tribunal work; (h) award costs. -- 6 of 12 -- 7 [25] The section does not provide further guidance or prescription about the occasions for or conditions of exercise of that power. [26] Section 100 of the QCAT Act is as follows: 100 Each party usually bears own costs Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding. [27] The QBCC Act is an enabling Act4 and s 77(2)(h) is, in our view, a ‘modifying provision’ within the meaning of s 7 of the QCAT Act. Section 7 of the QCAT Act provides: 7 Application of Act if modifying provision in enabling Act (1) This section applies if a provision of an enabling Act (the modifying provision) provides for— (a) the tribunal’s functions in jurisdiction conferred by the enabling Act; or (b) a matter mentioned in section 6(7). (2) The modifying provision prevails over the provisions of this Act, to the extent of any inconsistency between them. (3) This Act must be read, with any necessary changes, as if the modifying provision were a part of this Act. [28] To the extent of any inconsistency between them, a modifying provision prevails over the provisions of the QCAT Act and the QCAT Act must be read, with any necessary changes, as if the modifying provision were part of it (s 7(2)(3)). [29] We do not accept the submissions by the owners that s 77 only applies to the underlying dispute proceedings, and not to an appeal of an interlocutory decision which arises from the Tribunal’s appeal jurisdiction. The Appeal Tribunal in Pivovarova v Michelsen5 held, following Olindaridge Pty Ltd & Wagner v Tracey:6 The Appeal Tribunal has recently expressly considered whether the power to award costs conferred by the QBCC Act extends to an appeal or whether it is confined to the originating proceeding. We agree with the Appeal Tribunal’s finding that the Appeal Tribunal’s power to award costs arises under section 77 of the QBCC Act. It remains necessary to consider whether an award of costs is justified in the circumstances. We consider that the factors in favour of the award of an order for costs in Ms Pivovarova’s favour in respect of the appeal and the factors against any award of costs are finely balanced. In Lyons v Dreamstarter Pty Ltd the then President, Justice Wilson stated at [11]: The discretion to award costs starts with the proposition that it is just and reasonable that a party who causes another to incur costs should 4 QCAT Act, s 6(2)(a). 5 [2016] QCATA 45. 6 [2015] QCATA 175. -- 7 of 12 -- 8 reimburse the other party for them. Otherwise, the factors affecting the discretion will vary in each case. The Tribunal, in exercising its general discretion to award costs, may consider the matters referred to in s 102(3) of the QCAT Act. [30] In Olindaridge the Appeal Tribunal held: They argue that the claim or dispute determined by the Appeal Tribunal arose between a building contractor and a building owner and related to the performance of reviewable domestic building work as well as the contract for same. Accordingly, they submit that costs in the appeal proceedings are to be considered under the QBCC Act. Notwithstanding that the original proceeding was in the Tribunal’s original jurisdiction under s 77 of the QBCC Act, the appeal was conducted in the Tribunal’s appeal jurisdiction. Does this alter the characterisation of the proceeding? Was the appeal determined as part of a building dispute? The Appeals Tribunal had jurisdiction for the appeal only because of its jurisdiction under the QBCC Act to decide a building dispute on the application of a person involved in the building dispute. We accept that a claim or dispute between a building owner and building contractor within the definition of domestic building dispute, must therefore necessarily include an appeal in relation to the claim or dispute. As Olindaridge and Mr Wagner submit, as a matter of construction, claim or dispute is not determined by the cause of action, rather its nature as a building dispute as defined. Therefore, if a claim or dispute is a building dispute, it remains a building dispute whether considered in the Tribunal’s original or appeal jurisdiction. Therefore, the Appeals Tribunal’s power to award costs arises under s 77 of the QBCC Act.7 [31] In Lyons v Dreamstarter Pty Ltd8 the then President, Justice Wilson, applied the “broad general power to award costs” in s 77 to an appeal of an interlocutory decision in a building dispute, there a decision not to make an order for security for costs. The power in s 77, it was held, is to be exercised ‘judicially’.9 [32] There is a clear inconsistency between a provision that confers on the Tribunal a broad and general discretion to award costs (QBCC Act, s 77(2)(h)) and one which states that, unless otherwise provided each party must bear their own costs (QCAT Act, s 100). [33] Accordingly, the QBCC Act does provide otherwise. As a result, s 100 of the QCAT Act is displaced and s 77(2)(h) is the applicable provision in relation to the costs of the stay and the costs of the application for leave and the appeal. Timing of the Orders [34] We do not agree that the Appeal Tribunal is precluded from making an order for costs in respect of the stay application, and the application for leave to appeal and appeal, because an order was not made at the time those decisions were handed down. Section 7 8 9 Ibid, [9]-[12]. [2012] QCATA 71. Ibid at [8] approving Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 at [33], per Deputy President Kingham, as she then was. -- 8 of 12 -- 9 106 of the QCAT Act specifically provides that costs may be awarded at any stage of a proceeding, including after it has been determined. [35] Further, there is a long line of authority to the effect that a judge is not functus officio after giving judgment and can hear and determine a subsequent costs application. In Grace v Grace (No 9) [2014] NSWSC 1239 Brereton J said (at [35]: In NSW Insurance Ministerial Corporation v Edkins (1998) 45 NSWLR 8, the Court of Appeal held that a judge was not functus officio after giving judgment and making costs orders if the duties in the case were not otherwise completed (even though the judge was not then aware of it), and that in circumstances where there was a costs argument still to be heard - although it had not until that point been made - he was not functus officio and was entitled to entertain and deal with an application for a special costs order made immediate following the delivery of judgment. [36] The Appeal Tribunal is, in our view, entitled now to make a costs order in respect of the stay application, application for leave to appeal and appeal. Section 106, and the authorities to which we have referred, make that clear. The Appeal Tribunal did not at the earlier time consider, nor purport to deal with, the costs issues. The costs argument (if any) was still to be heard and the Appeal Tribunal is entitled to deal with it. [37] The owners’ reliance on Tey v Optima Financial Group Pty Ltd10 is misplaced. Tey concerned an appeal in relation to the taxation of costs. An issue arose, in obiter, as to how to deal with costs of an interlocutory application where there had been no order made in respect of those costs. Tey was not concerned with whether the court had power to make an order about the costs of an interlocutory application in the first place. Discretionary grounds [38] In our opinion, costs should be awarded against the owners in respect of the application for a stay of the interlocutory orders of the Senior Member and in respect of the application for leave to appeal and the appeal. In respect of the application for leave to appeal and the appeal, those costs should include the reserved costs of and incidental to the oral hearing. [39] In respect of the stay hearing, we have found that it is open to the Appeal Tribunal to make an order for costs and that the order is not confined in the manner suggested by the owners. The owners were unsuccessful in the application for the stay pending the appeal. Costs should follow the event in the application. [40] In respect of the costs of the application for leave to appeal and the appeal, the owners were successful in obtaining leave but were unsuccessful in the appeal. Notwithstanding the fact that leave was granted, the respondent was put to the expense of upholding the decision of the Senior Member below. The owners argued that by reason of the contract the Tribunal did not have jurisdiction to hear the dispute. That contention was incorrect for the reasons in our earlier decision.11 The owners needed to establish that the contractual provision continued to have effect and, further, to 10 [2012] WASCA 193 at [21]. 11 Allen & Anor v Contrast Constructions Pty Ltd (No 2) [2021] QCATA 43. -- 9 of 12 -- 10 establish that the discretion of the Senior Member miscarried. To succeed in the appeal, it was necessary that the owners be successful on both issues. They were not. [41] The principles to be applied by an appeal court on the issue of costs were considered recently by the Court of Appeal in Nine Network Australia Pty Ltd v Wagner.12 There, Jackson J, with whom the others agreed, said: [12] It is not necessary to decide whether the costs that relate to separate grounds of appeal should be treated as separate events for the purpose of the analysis to order the costs of this appeal. None of the parties contend that an order for costs should be made on the basis of orders for different events. Decisions of this Court state the principles for an award of the costs of an appeal. It is sufficient to refer to three of them. In 2009, in Sequel Drill & Blast Pty Ltd v Whitsunday Crushers Pty Ltd (No 2), it was said: “Rule 681(1) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) provides that costs of a proceeding are in the discretion of the Court but follow the event unless the Court orders otherwise. The rule which specifically relates to appeals is r 766(1)(d), which simply provides that the Court of Appeal ‘may make the order as to the whole or part of the costs of an appeal it considers appropriate’. Although r 766(1)(d) does not express the general principle under which a successful appellant is usually given costs in its favour, that general principle remains applicable. In Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, which concerned a provision conferring a discretionary power to award costs in general terms, McHugh J explained why a successful party is usually given costs: ‘The expression the ‘usual order as to costs’ embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is granted in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party [Latoudis [1990] HCA 59; (1990) 170 CLR 534 at 543, per Mason CJ: at 562–563, per Toohey J; at 566–567, per McHugh J; Cachia v Hanes (1994) 179 CLR 403 at 410, per Mason CJ, Brennan, Deane, Dawson and McHugh JJ]. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation. As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce 12 [2021] QCA 84. -- 10 of 12 -- 11 resources of the publicly funded system of justice.’”(footnote omitted) [13] In 2013, in Hamcor Pty Ltd v Marsh Pty Ltd, ([2013] QCA 395, [7]) it was said: “The proposed costs order is consistent with the principle propounded in Alborn & Ors v Stephens & Ors, wherein Muir JA, with whom Holmes JA and Daubney J agreed, observed: ‘The usual rule is that the costs of a proceeding follow the event. The ‘event’ is not to be determined merely by reference to the judgment or order obtained by the plaintiff or appellant, but is to be determined by reference to ‘the events or issues, if more than one, arising in the proceedings’. However, a party which has not been entirely successful is not inevitably or even, perhaps, normally deprived of some of its costs. (citations omitted)’” (footnote omitted) [14] Recently, in Speets Investment Pty Ltd v Bencol Pty Ltd (No 2), it was said: “It is important to recognise, however, that it does not follow from the foregoing that the application of the general rule should usually lead to costs orders which reflect different results on separate events or issues. The Court is given a broad discretion and is specifically empowered to determine that some other order is more appropriate. In practice, courts often take the approach of identifying heads of controversy or ‘units of litigation’ (rather than what might technically be regarded as issues on the pleadings) regarding success or failure on the head of controversy or unit of litigation as the criterion for awarding costs: see Thiess v TCN Channel 9 Pty Ltd (No 5) at 207–8 and Chief Executive, Department of Transport and Main Roads v Cidneo Pty Ltd [2015] QCA 168 at [1]. The general approach is that there must be special or exceptional circumstances to warrant depriving a successful party of its costs and the mere fact that the successful party has been unsuccessful on some issues will ordinarily not be sufficient to do so: Courtney v Chalfen [2021] QCA 25 at [5]. On an appeal, for example, where a party has succeeded on one of two ways to the same outcome, the Court of Appeal might well regard the costs of the second way on which that party failed as not so distinct conceptually or practically as to warrant making a costs order which reflected that party’s failure: Chief Executive, Department of Transport and Main Roads v Cidneo Pty Ltd at [1]. On the other hand, one circumstance in which it might be appropriate to award costs of a particular question or part of a proceeding is where that matter is definable and severable and has occupied a significant part of the proceeding...”(footnote omitted) [42] In Speets Investments Pty Ltd, the court identified the general approach that there must be special or exceptional circumstances to warrant depriving a successful party of its -- 11 of 12 -- 12 costs and the mere fact that the successful party has been unsuccessful on some issues will not ordinarily be sufficient to do so. [43] The issues of the effect of the clause, and the discretion whether to grant the stay, were not so severable as to justify an order other than the usual order. Moreover, that the discretion of the Senior Member had not miscarried was clear, and indeed this Appeal Tribunal would have reached the same decision in any event. [44] The matters raised by the owners in their submissions, said to support an order that each party bear their own costs and which we have considered, do not dissuade us from the view that the owners should pay the respondent’s costs. [45] We disagree with the suggestion that the decision was finely balanced. The exercise of the discretion by the Senior Member was not associated with error. The appeal did not turn on a point not raised below; ultimately, it turned on the exercise of the discretion by the Senior Member being upheld. It is incorrect to submit that the respondent’s conduct justified the appeal. Finally, the proposition that parties should be held to their bargain, and hence that the appeal was justified, fails to deal with the discretion point. [46] There is no need to defer the question of costs until a final decision in the substantive matter has been made. The owners were unsuccessful in the matters with which we are concerned. There is no reason why the costs in these matters should turn on the ultimate outcome of the substantive proceedings. [47] We have considered all the matters raised by the owners. They do not alone or together, call for a departure from the usual approach that costs follow the event. Indemnity costs in relation to the oral hearing [48] We are not inclined to award costs on an indemnity basis in respect of the oral hearing. The owners have given an explanation for their failure to appear. Had the owners attended, but the result been the same, the respondent would have been entitled to its costs on a standard basis. That is what we propose here. Those costs are to form part of the costs on the application for leave to appeal and the appeal. [49] Accordingly, we order as follows: 1. The applicants pay the respondent’s costs of and incidental to the application for a stay and the application for leave to appeal and the appeal , such costs to include the respondent’s costs reserved on the oral hearing. 2. The said costs shall be agreed within 14 days, or if not agreed within 14 days, are to be assessed on the standard basis on the District Court scale, by a costs assessor appointed by the Registrar of the Tribunal. -- 12 of 12 --