Campbell v Kerry M Ryan Pty Ltd [2014] QCATA 58

CITATION: Campbell v Kerry M Ryan Pty Ltd [2014] QCATA 58 PARTIES: Stephen John Campbell (Appellant) V Kerry M Ryan Pty Ltd (Respondent) APPLICATION NUMBER: APL372-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judicial Member Trafford-Walker Member Deane DELIVERED ON: 1 April 2014 DELIVERED AT: Brisbane ORDER MADE: Stephen John Campbell pay Kerry M Ryan Pty Ltd costs fixed in the sum of $6,500 by 4.00pm 27 May 2014. CATCHWORDS: APPEALS – LEAVE TO APPEAL – COSTS – BUILDING DISPUTE – where leave to appeal refused – whether in the interests of justice to award costs Queensland Building and Construction Commission Act 1991 (Qld), s 77(2)(h) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 48, s 100, s 102, s 107 Campbell v Kerry M Ryan Pty Ltd (No 2) [2012] QCAT 422 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 Tamawood Ltd V Paans [2005] 2 Qd R 101 Stuart Homes and Renovations v Denton [2012] QCAT 43 -- 1 of 4 -- 2 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] On 4 November 2013 we published our reasons for refusing leave to appeal and made directions in relation to the issue of costs. The Respondent seeks an order that the Applicant pay its costs of the failed application for leave to appeal in the sum of $6,500 or an order that costs be assessed on the District Court scale. Our directions of 7 February 2014 provided that the Applicant was to file submissions by 21 February 2014. No submissions have been received from the Applicant or his representative. [2] The QCAT Act provides: 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 proceedings.1 [3] It is a well established principle that the Tribunal’s discretion to award costs in a building dispute2 is a broader and more general discretion than the one conferred by the QCAT Act.3 [4] Section 102(3) sets out factors which may be considered in the exercise of the Tribunal’s discretion to award costs. Whether a party is acting in a way that unnecessarily disadvantages another party4 [5] We are not satisfied that this is a factor in favour of an award of costs. [6] The Respondent’s submissions raise a number of matters relating to the Applicant’s conduct of the dispute prior to the application for leave to appeal5 and in some instances prior to the proceedings being commenced.6 These matters were raised and considered by the learned Acting Senior Member in the Respondent’s unsuccessful application for costs.7 [7] To the extent matters complained of relate to the leave to appeal proceeding, they are that the Applicant failed to comply with directions in a 1 QCAT Act s 100. 2 Queensland Building and Construction Commission Act 1991 (Qld) s 77(2)(h); Lyons v Dreamstarter Pty Ltd [2011] QCATA 142. 3 QCAT Act s 100, s 102. 4 Ibid s 48(1)(a)-(g), s 102(3)(a). 5 An application for security for costs. 6 Failing to exhaust the complaints process through the then Queensland Building Services Authority. 7 [2012] QCAT 422. -- 2 of 4 -- 3 timely manner, requested an oral hearing and made a failed application to be allowed to adduce new evidence. [8] A matter which must be established is whether any disadvantage was ‘unnecessary’ as distinct from a disadvantage experienced in the usual course of a dispute proceeding. [9] Despite the Tribunal’s best efforts it is not unusual for parties to fail to comply with directions. Applications for leave to appeal are often heard on the papers and without the need for an oral hearing. In circumstances where the Applicant was seeking leave to adduce new evidence it would not be unusual for that party to seek an oral hearing. [10] These matters are all in the nature of a disadvantage experienced in the usual course of a dispute proceeding. The nature and complexity of the dispute8 [11] This is a factor in favour of an award of costs. [12] Applications for leave to appeal or appeal involve complex issues of law in assessing whether or not an error of law or mixed law and fact exist and whether there are issues of general importance justifying leave being granted. Relative Strengths of the claims9 [13] This is a factor in favour of an award of costs. [14] The Respondent had strong grounds for resisting the application for leave to appeal. The financial circumstances of the parties10 [15] This is not a factor in favour of an award of costs. [16] The matter of the parties’ financial circumstances has been commented upon in the original costs decision11 and in the decision refusing the Respondent’s application for security for costs.12 The Applicant’s financial position was such that the Registrar waived the fees for filing the application for leave. On the evidence both parties have limited means. Anything else the tribunal considers relevant13 8 QCAT Act s 102(3)(b). 9 Ibid s 102(3)(c). 10 Ibid s 102(3)(e). 11 [2012] QCAT 422 at [9] and [15]. 12 Senior Member Stilgoe dated 15 May 2013 at [5]. 13 QCAT Act s 102(3)(f). -- 3 of 4 -- 4 [17] The parties were both legally represented at the original hearing. The Respondent was granted leave to be legally represented in the application for leave to appeal.14 [18] If a costs order is not made, the Respondent’s success will be eroded through legal costs. This is a factor in favour of an award of costs.15 [19] On balance the factors are in favour of the award of an order for costs. [20] The Tribunal is to fix the costs if possible.16 [21] The Respondent’s solicitor has given evidence of his estimate of the costs including counsel’s fees.17 The costs appear reasonable. [22] We fix the costs in the sum of $6,500. [23] Given the financial circumstances of the Applicant it is appropriate to give an extended time for payment. 14 Direction No 1, dated 2 May 2013. 15 Tamawood Ltd V Paans [2005] 2 Qd R 101; Stuart Homes and Renovations v Denton [2012] QCAT 43. 16 QCAT Act s 107. 17 Affidavit Jon Kent sworn 14 February 2014. -- 4 of 4 --