Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Queensland Building Services Authority v Younan

 

[2011] QCA 163

 

SUPREME COURT OF QUEENSLAND

Queensland Building Services Authority v Younan [2011] QCA 163

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil) – Further Order

ORIGINATING COURT:

DELIVERED ON:

Judgment delivered 1 February 2011

Further Orders delivered 15 July 2011

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Margaret McMurdo P and Fraser JA and Cullinane J

Judgment of the Court

FURTHER ORDERS:

  1. There is no order as to the costs of the hearing before the Commercial and Consumer Tribunal on 18 March 2009.
  2. Mr Younan is to pay Queensland Building Services Authority's costs of this application.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellant was ordered to pay the respondent’s costs “of and incidental to” an application for leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld) and the appeal – where the respondent contended that the costs order also required the appellant to pay the respondent’s costs of the original proceedings before the Commercial and Consumer Tribunal – whether the costs of the original proceedings should be paid by the appellant

Commercial and Consumer Tribunal Act 2003 (Qld) (repealed), s 70, s 71, s 100

District Court of Queensland Act 1967 (Qld), s 118(3), s 119(2)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 271

COUNSEL:

No appearance by the appellant, the appellant’s submissions were heard on the papers

No appearance by the respondent, the respondent’s submissions were heard on the papers

SOLICITORS:

Forbes Dowling Lawyers for the appellant

Nicholas Radich Solicitor for the respondent

[1]  THE COURT: On 1 February 2011, this Court made the following orders in this appeal:

"1. Grant leave to appeal, allow the appeal, and set aside the order made in the District Court on 22 April 2010 that the case be remitted to the Queensland Civil and Administrative Tribunal for rehearing in accordance with that Court’s reasons.

2.Order that pursuant to s 56AD(8) of the Queensland Building Services Authority Act 1991 (Qld) the respondent is categorised as a permitted individual for the relevant events of the order to wind up Cavalier Homes (Gold Coast) Pty Ltd and the appointment of liquidators to that company on 18 June 2007.

3.Otherwise dismiss the appeal.

4.The applicant pay the respondent’s costs of and incidental to the application for leave to appeal and the appeal, to be assessed on the standard basis."

[2] Despite para 52 of Practice Direction No 2 of 2010, neither party made written submissions within 14 days of the delivery of the judgment as to any further or alternative costs orders.

[3] Only on 28 June 2011, did the solicitors for Mr Younan write to the Deputy Registrar (Appeals) asking to have the matter relisted for clarification as to whether the costs order made included the costs of the original proceedings in the Commercial and Consumer Tribunal ("CCT").

[4] On 1 July 2011, the Court gave leave to the parties to file and serve written submissions as to costs by 4.00 pm Friday, 8 July 2011 in accordance with Practice Direction No 2 of 2010, para 52.

[5] This Court's order 1 set aside the orders made in the District Court only insofar as the District Court judge remitted the case to the CCT for rehearing.[1]  It followed that the District Court judge's order that Queensland Building Services Authority ("QBSA") pay Mr Younan's costs of the appeal to the District Court was not set aside.[2]  Neither party submits that this Court should interfere with the order as to costs in the District Court.  Nor has either party made any submissions in respect of s 100(8) Commercial and Consumer Tribunal Act 2003 (Qld) (repealed) ("CCT Act").  The orders of this Court make plain that the District Court judge's order stands and QBSA must pay Mr Younan's costs of the appeal to the District Court.

[6] The only dispute between the parties is whether this Court should now make an order as to the costs of the CCT proceedings.  The CCT made no order as to those costs but gave directions allowing the parties to make submissions about them:  see Younan v Queensland Building Services Authority [2009] CCT QR 008-08, [26].

[7] The QBSA contends that the question as to whether the CCT should award costs to either party should be remitted to the Queensland Civil and Administrative Tribunal ("QCAT") which has replaced the CCT: see the transitional provisions in Ch 7 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ("QCAT Act"), especially s 271.  Alternatively, it contends that this Court should order that the costs of the proceedings before the CCT should be that each party bears their own costs of the proceedings, consistent with s 70 of the CCT Act and s 100 of the QCAT Act which superseded the CCT Act.

[8] Mr Younan submits that the effect of this Court's orders is that QBSA should pay his costs, not only of the application and appeal to this Court but also the costs of all proceedings below, including those in the CCT

[9] We do not accept Mr Younan's contention.  It is true that he was largely successful in his appeals both to this Court and to the District Court.  The orders of this Court as to the costs of those proceedings reflect this.  But under s 70 CCT Act, which was in force at the time of the hearing in the CCT, parties pay their own costs unless the interests of justice require otherwise.  The CCT may award costs (s 71(1)-(3) CCT Act).  In deciding whether to award costs and, if so, the amount of those costs, the CCT may have regard to various specified matters, including the outcome of the proceeding; the conduct of the parties to the proceeding; the nature and complexity of the proceeding; the relative strengths of the claims made by each of the parties to the proceeding; any contravention of an Act by a party to the proceeding; and anything the CCT considers relevant (s 71(4) CCT Act).

[10]  A party to a proceeding before the CCT may appeal to the District Court with leave only on the ground of error of law or excess or want of jurisdiction (s 100(1) CCT Act).  On such an appeal, the District Court may confirm, annul, vary or reverse the CCT's decision; remit the case to the CCT for further hearing or rehearing; and make consequential or ancillary orders or directions (s 100(6) CCT Act).  As we have noted, neither party has made submissions in respect of s 100(8) CCT Act or in respect of the District Court costs order. 

[11]  The appeal from the District Court to this Court was by way of leave under s 118(3) District Court of Queensland Act 1967 (Qld).  Under s 119(2) of that Act:

"On the hearing of any appeal the Court of Appeal—

(b)… may make any … order, on such terms as the Court of Appeal thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties; and

(c)may make such order with respect to the costs of the appeal as it thinks proper;

and every such order shall be final."

[12]  The width of the powers conferred on this Court by s 119 District Court of Queensland Act make clear that this Court has power to determine whether there should be a costs order as to the CCT proceedings and, if so, its terms.  In the interests of finally determining the issues in dispute between the QBSA and Mr Younan, it is desirable that this Court now do so.  We note, however, that this Court will not routinely entertain such applications when parties have failed to make timely submissions as to costs in accordance with Practice Direction No 2 of 2010.  The disputed issue as to costs here can be simply resolved.  The submissions made by the parties do not demonstrate any reason for departing from the usual order made in the CCT in accordance with s 70 CCT Act, the same approach now taken as to proceedings in QCAT, CCT's successor, under s 100 QCAT Act, that there be no order as to costs.

[13]  Although far from persuaded that a further order is necessary, in the interests of finality the further order is that there is no order as to the costs of the hearing before the CCT on 18 March 2009. 

[14]  Mr Younan requested the matter be relisted for the purposes of this further application which was necessitated by his unreasonable construction of this Court's orders.  In those circumstances, this Court should also order that he pay QBSA's costs of this application.

FURTHER ORDER

1.  There is no order as to the costs of the hearing before the Commercial and Consumer Tribunal on 18 March 2009.

2.  Mr Younan is to pay Queensland Building Services Authority's costs of this application.

Footnotes

[1] Younan v Queensland Building Services Authority [2011] QCA 1, [31].

[2] Younan v Queensland Building Services Authority [2010] QDC 158.

Close

Editorial Notes

  • Published Case Name:

    Queensland Building Services Authority v Younan

  • Shortened Case Name:

    Queensland Building Services Authority v Younan

  • MNC:

    [2011] QCA 163

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Fraser JA, Cullinane J

  • Date:

    15 Jul 2011

Litigation History

Event Citation or File Date Notes
QCA Interlocutory Judgment [2011] QCA 163 15 Jul 2011 -

Appeal Status

No Status