Henley Properties (Qld) Pty Ltd v Salam No 2
[2023] QCAT 482
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- Unreported Judgment
- Henley Properties (Qld) Pty Ltd v Salam No 2[2023] QCAT 482
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Henley Properties (Qld) Pty Ltd v Salam No 2[2023] QCAT 482
Henley Properties (Qld) Pty Ltd v Salam No 2[2023] QCAT 482
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Henley Properties (Qld) Pty Ltd v Salam No 2 [2023] QCAT 482 |
PARTIES: | Henley Properties (Qld) Pty Ltd (applicant) v MUHAMMAD SALAM and SEOWMEE SALAM (respondent) |
APPLICATION NO/S: | BDL122-13 |
MATTER TYPE: | Building matters |
DELIVERED ON: | 8 December 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member King-Scott |
ORDERS: | Each party bear their own costs. |
CATCHWORD | 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 applicant unsuccessful on a technicality – where arespondent recovered 10% of their counter application – pyrrhic victory – whether discretion to award costs should be exercised Queensland Civil and Administrative Tribunal Act 2009 (Qld) A L Builders Pty Ltd v Nicholas Fatseas and Tricia Fatseas (No 2) [2014] QCATA 319 Colburt v Beard (1992) 2 Qd R 67 Lyons v Dreamstarter Pty Ltd [2012] QCATA 71 |
APPEARANCES & REPRESENTATION: | 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]I delivered my decision in this matter on 13 October 2023.
- [2]I made orders including that the parties to file any written submissions in relation to the question of costs by 17 November 2023.
- [3]The Applicant only has provided submissions.
- [4]The Applicant was unsuccessful in its claim, essentially on a technical basis. The Respondents succeeded in their counter-application to the extent of $6,157.89 which was approximately 10% of the $60,979.84 of their counter application claim. The respondents were unsuccessful in what the Tribunal at first instance considered to be “the Respondents’ primary complaint” which related to the tiles and whether they should have been ceramic or porcelain. Counsel for the Respondents at the time informed the Tribunal that the tiles were the major issue in the case.
- [5]As I stated in my earlier reasons this matter had a chequered history. The Applicant, initially, succeeded in their claim and also recovered a costs order. That decision was set aside on appeal and a new hearing ordered. These costs relate to the reconsideration of the matter.
- [6]Section 77 of the Queensland Building & Construction Commission Act 1991 (Qld) displaces the usual order in Tribunal proceedings.[1] The general rule about costs is thereby incorporated into building disputes before the Tribunal.[2] 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.[3]
- [7]The applicant submits that the appropriate direction be that each party is to bear their own costs of the proceeding. The Respondents defeated the Applicant’s claim on a technicality and they had a pyrrhic victory on their counter-application.
- [8]The Respondents have not filed any submissions on costs. In all the circumstances, I consider that each party should bear their own costs.
Footnotes
[1] Section 100 QCAT Act Lyons v Dreamstarter Pty Ltd [2012] QCATA 71
[2] A L Builders Pty Ltd v Nicholas Fatseas and Tricia Fatseas (No 2) [2014] QCATA 319
[3] 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