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Urquhart v Partington

 

[2016] QCA 199

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

John Urquhart t/as Hart Renovations v Partington & Anor [2016] QCA 199

PARTIES:

JOHN URQUHART T/AS HART RENOVATIONS
(applicant)
v
PHILIP PARTINGTON
EVELYN PARTINGTON
(respondents)

FILE NO/S:

Appeal No 6079 of 2015

QCATA No 131 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act – Further Orders

ORIGINATING COURT:

Queensland Civil and Administrative Appeal Tribunal at Brisbane – [2015] QCATA 67

DELIVERED ON:

5 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Margaret McMurdo P and Morrison JA and Henry J

Judgment of the Court

ORDERS:

  1. The respondent pay the appellant’s costs of and incidental to the appeal to be assessed if not otherwise agreed.
  2. The respondent is granted an indemnity certificate in respect of the appeal to the Court of Appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE –  QUEENSLAND APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – where the court allowed the appeal, set aside the decision below and returned the matter to the QCAT Appeal Tribunal – whether the successful applicant appellant should have his costs of the appeal – whether this court should make a costs order in respect of the proceeding below – whether this court should grant the unsuccessful respondent a certificate under the Appeal Costs Fund Act 1973 (Qld)

Appeal Costs Fund Act 1973 (Qld), s 15

Civil Proceedings Act 2011 (Qld), s 15

Uniform Civil Procedure Rules 1999 (Qld), r 681, r 766

Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 90 ALJR 270; (2015) 327 ALR 192; [2015] HCA 53, applied

John Urquhart t/as Hart Renovations v Partington & Anor [2016] QCA 87, cited

Lauchlan v Hartley [1980] Qd R 149, applied

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, cited

Sequel Drill & Blast P/L v Whitsunday Crushers P/L (No 2) [2009] QCA 239, cited

COUNSEL:

No appearance for the applicant, the applicant’s submissions were heard on the papers

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

SOLICITORS:

Saal & Associates for the applicant

Blue Fox Legal for the respondent

[1] THE COURT:  It is necessary to determine three costs issues in the wake of this Court granting leave to appeal and allowing the appeal in this matter.[1]

[2] Those issues are:

1. whether the applicant appellant (“the builder”) should have his costs of the appeal;

2. whether this Court should make a costs order in respect of the proceeding below; and

3. whether this Court should grant the respondent (“the owners”) a certificate under the Appeal Costs Fund Act 1973 (Qld).

1. The appellant’s costs of the appeal

[3] The present proceeding was an application for leave to appeal.  That application was granted.

[4] The merits of the appeal were argued on the hearing of the application.  The notice of appeal sought orders:

1. allowing the appeal;

2. setting aside the decision below of QCAT’s Appeal Tribunal;

3. dismissing the appeal below, which was an appeal from the decision of a QCAT member.[2]

[5] This Court allowed the appeal, set aside the decision below and returned the matter to the Appeal Tribunal.

[6] On the face of it, the builder was successful in the outcome of the appeal.  The builder submits he should therefore have his costs.  The owners submit each party should bear its own costs.

[7] In exercising its power to award costs pursuant to s 15 Civil Proceedings Act 2011 (Qld) this Court may, pursuant to r 766(1)(d) Uniform Civil Procedure Rules 1999 (Qld), “make the order as to the whole or part of the costs of an appeal it considers appropriate”.

[8] Rule 766(1)(d) applies in appeals, not r 681(1)[3] which provides that costs “are in the discretion of the court but follow the event, unless the court orders otherwise”.  However the general principle that a successful party is usually given costs in its favour, a principle inherent in r 681(1), remains applicable in this Court determining the order as to costs considered appropriate pursuant to r 766(1)(a).[4]

[9] McHugh J explained the rationale for that principle in Oshlack v Richmond River Council:[5]

 

“The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. … The primary purpose of an award of costs is to indemnify the successful party. 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.” (citations omitted)

[10] It is apparent from the terms of r 766(1)(d) and its reference to “the whole or part of the costs” that a successful party in an appeal may be awarded less than its costs.  However where a party has been successful in the outcome of the appeal the fact that it did not succeed on every issue or ground advanced will not usually warrant a departure from the general principle that costs should follow the outcome of the appeal.  As much was emphasised by the High Court in Firebird Global Master FundII Ltd v Republic of Nauru (No 2)[6] where Firebird had only partial success in respect of one of four issues.  The Court observed:

 

[5]If the question of costs is to be determined on the basis of success on issues, rather than on the outcome of the appeal, these factors would not suggest as appropriate an order apportioning costs, let alone one that Firebird and Nauru pay their own costs, for which Firebird contends.

[6]In any event, the preferable approach in this case is the one usually taken, that costs should follow the outcome of the appeal.  This is not a case where it may be said that the event of success is contestable, by reference to how separate issues have been determined.  There are no special circumstances to warrant a departure from the general rule, and good reasons not to encourage applications regarding costs on an issue-by-issue basis, involving apportionments based on degrees of difficulty of issues, time taken to argue them and the like.” (citations omitted)

[11] The owners advance essentially two reasons why the general principle should be departed from here.  The first is that the builder did not enjoy complete success in the orders sought on the appeal, in that the final order involved the return of the matter to the Appeal Tribunal rather than reinstating the original decision of the QCAT member.

[12] While that was a point of distinction between the final orders sought and made, that point only went to what the appropriate order was as a consequence of the builder’s successful application and appeal.  The material and issues relevant to the appropriate consequential order were necessarily canvassed as part of the builder’s successful application and appeal.  The owners could not therefore have been put to any materially different cost by reason of the builder seeking a different order in the event of his success than the order given.  Moreover the final order as sought in the builder’s proposed notice of appeal was not actively contended for, it being apparent that the matter inevitably had to be returned to the Appeal Tribunal because the Appeal Tribunal had not yet decided all of the appeal before it.[7]

[13] It follows there is no substance to the first reason advanced by the owners.

[14] The second reason advanced by the owners is that the builder did not enjoy success on all of its grounds.  The owners’ argument seeks to capitalise on the detailed particularity with which the two grounds in the draft notice were set out.  The owners characterise each particular as a ground.

[15] Ground 1 of the draft notice of appeal asserted QCAT’s Appeal Tribunal had “erred in law” and thereafter listed a long variety of alleged errors.  All of the alleged errors were connected with what were described in the reasons for judgment as “the structural flooring issue” and “the front door issue”.[8]  As is apparent from this Court’s reasons, the Appeal Tribunal did, as the builder alleged, err in respect of the structural flooring issue and the front door issue.

[16] Ground 2 alleged that as a consequence of the error of law in ground 1, the Appeal Tribunal erred in various findings, the particulars of which were all connected with what was described in the reasons as “the topic of whether the enclosed stage of building works had been reached”.[9]

[17] The resolution of the structural flooring issue and the front door issue in the builder’s favour was determinative on the topic of whether the enclosed stage had been reached.  A variety of the owners’ submissions now advanced on costs are premised on the erroneous view that topic was not resolved by the Court’s reasons.

[18] As to other submissions, the owners submit this Court rejected the builder’s arguments and particulars of grounds as to the prevention principle.  In fact this Court found it unnecessary to consider the application of the prevention principle to this case.[10]  The owners submit this Court did not accept the builder’s particulars and argument that it was proper for the member at first instance to give weight to the opinion of experts in determining the meaning of “structural flooring”.[11]  That is correct.  But it is academic because it was implicit in the member’s reasons that the meaning of structural flooring favoured by him was actually the correct meaning.

[19] The balance of the owners’ submissions rely on the Court not having made findings as to some of the particulars of or arguments in support of the two appeal grounds.  The mere fact it was unnecessary to make findings on some such particulars or arguments hardly warrants a departure from the general principle.

[20] There is no special circumstance here warranting such a departure.  While not all of the builder’s particulars or arguments were successful or required determination they all went to advancing the key issues on which the builder was successful.  Had the owners conceded those issues (unlikely as that may have been, given they had the benefit of findings by the Appeal Tribunal in their favour) the builder would not have incurred the costs now sought.

[21] The builder should have his costs of the appeal to this Court.

2. Costs order in the proceeding below?

[22] The builder also seeks costs in respect of its appeal to the QCAT Appeal Tribunal below.

[23] Such an order would not flow logically from the outcome of the builder’s successful appeal.  The practical effect of that outcome is that it remains for the QCAT Appeal Tribunal to finish the task of fully determining the appeal below.

[24] The Appeal Tribunal will be bound by this Court’s correction of error in favour of the builder.  The cost of correcting that error will be addressed by the costs order in respect of this appeal.  However as to what if any costs ought be ordered in respect of the appeal below, that will be a matter for the Appeal Tribunal to determine once it has fully decided the appeal before it.  Doubtless one of the mix of relevant considerations at that time will be the favourable resolution in that proceeding of some issues in the builder’s favour in consequence of this Court’s reasons being followed.

[25] This Court should not make any order as to costs in respect of the proceeding below.

3. Appeal Costs Fund Act certificate?

[26] The owners apply for an indemnity certificate in respect of the appeal pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) which relevantly provides:

15Grant of indemnity certificate

(1) Where an appeal against the decision of a court –

(a)to the Supreme Court; …

on a question of law succeeds, the Supreme Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal.”

[27] The appeal did succeed on a question of law, so the discretion to grant a certificate is enlivened.

[28] In Lauchlan v Hartley[12] Connolly J, with whom Chief Justice Wanstall and Lucas SPJ agreed, reasoned the mere fact the submissions of a respondent below led to the decision disturbed on appeal will not of itself lead to a refusal of the certificate.  Without purporting to be definitive or exhaustive his Honour distinguished between cases where both sides of the debate were fairly arguable and cases in which there was no basis on which the decision under appeal could properly have been made.  His Honour reasoned in the latter category of case a certificate would not ordinarily be given but in the former category of case the respondent may succeed in obtaining a certificate.

[29] The present case is in the former category.  The question of law on which the builder succeeded, described in the reasons as “an important point of interpretation and the main reason for interference by the Appeal Tribunal” below,[13] was not the subject of material authority.  Both sides of the debate were fairly arguable.  It is also relevant to the exercise of the discretion that the Appeal Tribunal’s failure to decide the whole of the appeal below, a further reason justifying this Court’s intervention, is not the fault of either party.

[30] For those reasons this is a proper case in which to exercise the discretion to grant a certificate in respect of the appeal.

[31] To remove doubt, the costs of the appeal would include the costs of the application for leave to appeal, it being a necessary incident of the appeal.

Orders

[32] The Court orders:

 

1. The respondent pay the appellant’s costs of and incidental to the appeal to be assessed if not otherwise agreed.

2. The respondent is granted an indemnity certificate in respect of the appeal to the Court of Appeal.

Footnotes

[1] John Urquhart t/as Hart Renovations v Partington & Anor [2016] QCA 87.

[2] AR Vol 2 p 857; costs orders were also sought.

[3] Per r 681(2) UCPR.

[4] Sequel Drill & Blast P/L v Whitsunday Crushers P/L (No 2) [2009] QCA 239.

[5] (1998) 193 CLR 72, 97.

[6] (2015) 327 ALR 192, 193.

[7] That inevitability raised a prospect there might have been pre-hearing exchanges of correspondence between the parties about the disposition by consent of at least part of the application and appeal. Such exchanges might have been relevant to costs but no evidence has been advanced of such exchanges.

[8] Reasons [51].

[9] Reasons [50].

[10] Reasons [77].

[11] Reasons [37].

[12] [1980] Qd R 149, 151.

[13] Reasons [82].

Close

Editorial Notes

  • Published Case Name:

    John Urquhart t/as Hart Renovations v Partington & Anor

  • Shortened Case Name:

    Urquhart v Partington

  • MNC:

    [2016] QCA 199

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Morrison JA, Henry J

  • Date:

    05 Aug 2016

Litigation History

Event Citation or File Date Notes
Primary Judgment [2015] QCATA 67 19 May 2015 -
Notice of Appeal Filed File Number: 6079/15 19 Jun 2015 -
Appeal Determined (QCA) [2016] QCA 87 08 Apr 2016 -
Appeal Determined (QCA) [2016] QCA 199 05 Aug 2016 Costs Judgment.

Appeal Status

{solid} Appeal Determined (QCA)