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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Campagnolo v Bennett No 2  QCAT 68
JESSE SEABROOK BENNETT
10 March 2020
On the papers
The Tribunal orders:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – OTHER MATTERS – domestic building dispute – where parties legally represented – where respondent substantially successful at hearing – where respondent sought order for costs – where respondent made offer to settle – whether discretion to award costs should be exercised
Queensland Building & Construction Commission Act 1991 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Queensland Civil and Administrative Tribunal Rules 2009 (Qld)
Uniform Civil Procedure Rules 1999
A L Builders Pty Ltd v Nicholas Fatseas and Tricia Fatseas (No 2)  QCATA 319
Colburt v Beard (1992) 2 Qd R 67
Lyons v Dreamstarter Pty Ltd  QCATA 71
Ricchetti and Ors v Lanbuilt Pty Ltd  QCATA 111
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
- This matter was heard in Cairns on 16 October 2019. On 24 January 2020 the following orders were made:
- (a)I order Jesse Seabrook Bennett pay Donna Campagnolo the sum of $220,000.00 in respect of her claim;
- (b)I dismiss Jesse Seabrook Bennett’s counter-application;
- (c)The order to pay is stayed until further argument in relation to costs and the form of final orders;
- (d)I invite the parties to make submissions in relation to costs;
- (e)I direct the parties file written submissions, if any, as to costs as follows:
- Donna Campagnolo by 4.00 pm 7 February 2020;
- Jesse Seabrook Bennett by 4.00 pm 14 February 2020.
- The Applicant, Donna Campagnolo has filed submissions and made a claim for costs. The Respondent, Jesse Seabrook Bennett, has responded but has not made any submissions other than to request a reasonable time to pay.
- Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 provides that each party should bear their own costs unless otherwise provided such as under an enabling act.
- Section 77 of the Queensland Building & Construction Commission Act 1991 (Qld) displaces the usual order in Tribunal proceedings. The general rule about costs is thereby incorporated into building disputes before the Tribunal. The general rule is that a successful party is entitled to procure its costs against the other party. That is, costs should follow the event. That might not be appropriate in some instances, such as the delinquent behaviour of the winning party, or the pyrrhic nature of the win. The Tribunal has a broad general discretion.
- Pursuant to section 86 of the Rules the Tribunal may award the party who made the offer all reasonable costs incurred by that party.
- It is appropriate to set the rule out in its entirety:
86 Additional power to award costs if particular offers to settle rejected
- (1)This rule applies if—
(a) a party to a proceeding, other than a proceeding for a minor civil dispute, makes another party to the proceeding a written offer to settle the dispute the subject of the proceeding; and
(b) the other party does not accept the offer within the time the offer is open; and
(c) in the opinion of the tribunal, the decision of the tribunal in the proceeding is not more favourable to the other party than the offer.
- (2)The tribunal may award the party who made the offer all reasonable costs incurred by that party in conducting the proceeding after the offer was made.
- (3)If a proceeding involves more than 2 parties, this rule applies only if the acceptance of the offer would have resulted in the settlement of the matters in dispute between all the parties.
- (4)In deciding whether a decision is or is not more favourable to a party than an offer, the tribunal must—
(a) take into account any costs it would have awarded on the date the offer was given to the other party; and
(b) disregard any interest or costs it awarded relating to any period after the date the offer was given to the other party.
- Under section 86 (2) reasonable costs are, in effect, indemnity costs.
- The Applicant claims costs of $22,075.15 on a standard basis up to 30 October 2018 and thereafter $67,517.75 on an indemnity basis. The claim totals $89,592.90. Alternatively, if the Tribunal is not prepared to fix costs, then she claims costs on a standard basis up to 30 October 2018 and on an indemnity basis after 30 October 2018 pursuant to the Magistrates Court of Queensland scale for claims over $50,000.00.
- The Applicant made two offers in writing to the Respondent to settle. The offers were made pursuant to Part 8 Division 3 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘the Rules’). The first in 30 October 2018 for $130,000.00. The second on 14 March 2019 for $195.000.00.
- In support of her submissions the Applicant made the following submissions:
- (a)The Applicant's claim against the respondent was substantially successful.
- (b)The proceedings involved complex questions of law and it was appropriate for the Applicant to retain legal representation throughout the proceedings.
- (c)The Respondent caused the Applicant to incur significant and substantial costs throughout the conduct of the proceedings by doing little to assist the Applicant or the Tribunal in narrowing the issues.
- (d)The Tribunal member's reasons for decision records that "Respondent was unimpressive of the witness: he assumed a cavalier attitude to the whole affair and did little to assist his case."
- (e)Respondent also raised and maintained number of arguments which had no reasonable prospect of being successful and as the Tribunal Member’s reasons for decision noted, the Respondent's submissions had little regard for the evidence.
- (f)Throughout the proceedings Respondent conducted the proceedings vexatiously and acted in a way that unnecessarily disadvantaged the Applicant.
- There is much substance in the Applicant’s submissions, in paragraph  of the reasons in this matter I detailed some of the Respondent’s submissions which I considered in part irrelevant and lacking any evidence to support them.
- In my opinion, the costs claimed are reasonable and should be awarded on an indemnity basis. The claim for costs is supported by detailed invoices and, in the circumstances, I am prepared to fix costs. Accordingly, I fix the costs at $89,592.90.
- I make the following orders:
- (a)Jesse Seabrook Bennett pay Donna Campagnolo the sum of $220,000.00 in respect of her claim;
- (b)Jesse Seabrook Bennett’s counter-application is dismissed;
- (c)Jesse Seabrook Bennett pay Donna Campagnolo her costs fixed in the sum of $89,592.90.
- (d)The said sums to be paid by 4:00 pm 17 April 2020.
 Section 100 QCAT Act Lyons v Dreamstarter Pty Ltd  QCATA 71
 A L Builders Pty Ltd v Nicholas Fatseas and Tricia Fatseas (No 2)  QCATA 319
 See rules 681 (1) and 684 Uniform Civil Procedure Rules 1999. Those rules do not apply to the QCAT Act, but they do provide some assistance in determining when and what awards of costs should be made in the interests of justice. See QCAT Act s.102(1). Colburt v Beard (1992) 2 Qd R 67.
 Ricchetti and Ors v Lanbuilt Pty Ltd  QCATA 111 
 Campagnolo v Bennett  QCAT 13
- Published Case Name:
Campagnolo v Bennett No 2
- Shortened Case Name:
Campagnolo v Bennett No 2
 QCAT 68
10 Mar 2020