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  4. Steven Bryan Worthington t/as Worthington Simmons Builders v Dr Andrew William Ryan; Dr Andrew William Ryan v Steven Bryan Worthington t/as Worthington Simmons Builders - [2022] QCATA 8

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Steven Bryan Worthington t/as Worthington Simmons Builders v Dr Andrew William Ryan; Dr Andrew William Ryan v Steven Bryan Worthington t/as Worthington Simmons Builders[2022] QCATA 8

Steven Bryan Worthington t/as Worthington Simmons Builders v Dr Andrew William Ryan; Dr Andrew William Ryan v Steven Bryan Worthington t/as Worthington Simmons Builders[2022] QCATA 8

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Steven Bryan Worthington t/as Worthington Simmons Builders v Dr Andrew William Ryan; Dr Andrew William Ryan v Steven Bryan Worthington t/as Worthington Simmons Builders [2022] QCATA 8

PARTIES:

In APL045-17:

STEVEN BRYAN WORTHINGTON T/AS WORTHINGTON SIMMONS BUILDERS

(applicant/appellant)

v

DR ANDREW WILLIAM RYAN

(respondent)

In APL163-18:

DR ANDREW WILLIAM RYAN

(applicant/appellant)

v

STEVEN BRYAN WORTHINGTON T/AS WORTHINGTON SIMMONS BUILDERS

(respondent)

APPLICATION NO/S:

APL045-17; APL163-18

ORIGINATING
APPLICATION NO/S:

BDL274-11

MATTER TYPE:

Appeals

DELIVERED ON:

19 January 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

Acting Senior Member Howe

ORDERS:

In APL045-17

1. The appeal is dismissed;

2. Steven Bryan Worthington t/as Worthington Simmons Builders must pay Dr Andrew William Ryan’s costs of the appeal to be assessed on the standard basis in accordance with Schedule 2, Part 3 of the Uniform Civil Procedure Rules 1999 (Qld) as if the proceeding had been one in the Magistrates Court.

In APL163-18

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The decision in BDL274-11 dated 17 January 2017 is varied by deleting order 1 and substituting the following order:

1.  Dr Andrew William Ryan pay Steven Bryan Worthington t/as Worthington Simmons Builders $25,925.72 for damages by 7 February 2017.

4.  Steven Bryan Worthington t/as Worthington Simmons Builders must pay Dr Andrew William Ryan’s costs of the appeal to be assessed on the standard basis in accordance with Schedule 2, Part 3 of the Uniform Civil Procedure Rules 1999 (Qld) as if the proceeding had been one in the Magistrates Court.

In APL 045-17 and APL163-18

1. Proceeding BDL274-11 is remitted to the Tribunal for the determination of costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where parties cross-appealed – determining the costs of the appeals – costs in building disputes – where the discretion to award costs in a building dispute is exercised – where the award of interest is refused on a discretionary basis – where one appellant succeeded on a single ground of appeal – whether costs awarded should be apportioned on an issue-by-issue basis – where costs awarded on a standard basis – where costs of the original proceeding remitted for determination by the tribunal.

Domestic Building Contracts Act 2000 (Qld), s 18

Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(c)

Queensland Building and Construction Commission Regulation 2018 (Qld), s 54(2)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 147, 147(3)(c)

Uniform Civil Procedure Rules 1999 (Qld), sch 2, Part 3

Australian Trade Commission v Disktravel [2000] FCA 62

Cretazzo v Lombardi (1975) 13 SASR 4

Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53

Federal Commissioner of Taxation v AusNet Transmission Group Pty Ltd (No 2) [2015] FCAFC 124

Lyons v Dreamstarter Pty Ltd [2012] QCATA 71

Partington & Anor v Urquhart (No 4) [2019] QCATA 96

Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374

Tamawood Ltd & Anor v Paans [2005] QCA 111

Worthington v Ryan; Ryan v Worthington [2021] QCATA 138

Wyatt v Albert Shire Council [1987] 1 Qd R 486

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. [1]
    On 11 October 2021 we published our reasons in these appeals and directed the parties to file submissions on the final orders to give effect to the reasons.[1]
  2. [2]
    In the final event we found that, in respect of Dr Ryan’s appeal, the tribunal at first instance had erred in assessing Mr Worthington’s entitlement to damages and interest. We also found that Mr Worthington’s appeal failed.

What do the parties say

APL163-18 – the appeal by Dr Ryan

  1. [3]
    Dr Ryan says that in respect of his appeal the final orders should be varied to reflect that the amount payable by him to Mr Worthington is $25,925.72. Dr Ryan says that Mr Worthington should repay to him $37,930.00 (being the reduction in the amount of the judgment paid by Dr Ryan in 2017). In addition, he says that the costs of the original proceedings should be remitted to the tribunal below for determination and that Mr Worthington should pay Dr Ryan’s costs of the appeal to be assessed on the Magistrates Court scale.
  2. [4]
    Mr Worthington says that the final orders should reflect that the amount payable by Dr Ryan is $25,925.72. Mr Worthington says that interest should be payable on this amount at the rate of 10% for the period from 7 February 2017 (the date of the decision at first instance) until 6 June 2017 (the date of payment). This is an amount of $852.35.
  3. [5]
    Mr Worthington says that no order should be made for the repayment of any part of the original judgment sum which was subsequently reduced on appeal. The basis of this submission is that it would not be in the interests of justice for Mr Worthington to be required to make the payment to Dr Ryan until the question of costs in the proceedings below is determined. Mr Worthington says that he was the successful party in the proceedings below and that the costs to which he will be entitled will be likely to exceed the amount repayable to Dr Ryan. On this basis, says Mr Worthington, any order for the payment of monies to Dr Ryan should be stayed pending the determination of costs in the proceedings below.
  4. [6]
    Mr Worthington says that Dr Ryan was successful on only one of his grounds of appeal, the remaining two grounds of appeal having been withdrawn at the appeal hearing.  
  5. [7]
    Mr Worthington says that the costs of the appeal should be the parties costs in the cause pending the decision on costs in the original proceedings. Alternatively, Mr Worthington says there should be no order as to costs or that any costs awarded to Dr Ryan should reflect the limited success he enjoyed in the appeal.

APL045-17 – the appeal by Mr Worthington

  1. [8]
    The appeal by Mr Worthington failed.
  2. [9]
    Mr Worthington says that, in the context of the whole of the proceedings (that is, both appeals and the proceedings below), he remains the successful party. He says that his success should not be eroded by not making an order for costs in his favour. Mr Worthington says therefore that the costs of the appeals should be the parties costs in the cause. In the alternative, says Mr Worthington, there should be no order for costs in either of the appeals.
  3. [10]
    Dr Ryan says that the order of the tribunal below should be varied by deleting the award of interest to Mr Worthington in the amount of $11,416.83. Dr Ryan says that an order should be made that the Mr Worthington pay this amount to Dr Ryan.
  4. [11]
    In relation to costs, Dr Ryan says that Mr Worthington’s appeal failed and that Dr Ryan should be entitled to his costs of the appeal.

Consideration

The final decision

  1. [12]
    There is no dispute between the parties that final orders should reflect that Dr Ryan must pay to Mr Worthington $25,925.72. The appeals were conducted by way of rehearing in accordance with s 147 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). In deciding the appeals we may make orders in accordance with s 147(3)(c) which includes amending the decision under appeal.
  2. [13]
    The appropriate order is that order 1 of the decision of the tribunal dated 17 January 2017 in BDL274-11 is varied as follows: Dr Andrew William Ryan pay Steven Bryan Worthington t/as Worthington Simmons Builders $25,925.72 for damages by 7 February 2017.
  3. [14]
    It is common ground between the parties that Dr Ryan paid to Mr Worthington the judgment sum on 6 June 2017. Dr Ryan seeks an order that Mr Worthington repay to him the amount of $49,346.83.[2] Mr Worthington says that no order for the repayment of any part of the judgment sum paid by Dr Ryan should be made until the question of the costs of the proceedings below is finally determined.
  4. [15]
    The orders sought by Mr Worthington are akin to a stay. Mr Worthington’s submissions do not address the considerations relevant to an application to stay the payment of a final judgment. 
  5. [16]
    In our view it is appropriate to make orders giving effect to the final outcome of the appeals. Mr Worthington should pay to Dr Ryan $49,346.83 within 28 days of the date of the final decision of the Appeal Tribunal.
  6. [17]
    Mr Worthington says that Dr Ryan should be ordered to pay interest on the judgment sum as varied from the date of the decision below until the date of payment. In deciding a building dispute the tribunal may award interest.[3] Interest is payable on and from the day after the day the amount became payable until and including the amount is paid.[4] The amount of $25,925.72 was required to be paid by Dr Ryan by 7 February 2017. The judgment sum was paid on 6 June 2017. Interest calculated at the rate of 10% for this period is $838.14. The awarding of interest requires the exercise of a discretion. We are cognisant of the fact that Mr Worthington has had the benefit of the full judgment sum since June 2017. In all the circumstances we decline to award interest on the judgment sum as sought by Mr Worthington. 

Costs

  1. [18]
    Costs in building dispute proceedings, including appeals, are governed not by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) but by the Queensland Building and Construction Commission Act 1991 (Qld).[5]
  2. [19]
    The discretion to award costs in building dispute proceedings must be exercised judicially, not upon irrelevant or extraneous considerations but upon facts connected with or leading up to the litigation.[6] The exercise of a discretion ‘judicially’ means for reasons that can be considered and justified.[7]
  3. [20]
    Costs do not follow the event in building dispute proceedings. However, success in a proceeding and the degree of success, particularly one involving complex litigation, are relevant considerations in the exercise of the discretion to award costs. A party’s success may be a significant factor in an application for an order for costs.
  4. [21]
    The extent to which success in a proceeding may be eroded if a party is required to bear their own costs was considered by the Queensland Court of Appeal in Tamawood Ltd & Anor v Paans:[8]

If orders for costs were not to be made in favour of successful parties in complex cases, then just claims might not be prosecuted by persons who are unable to manage complex litigation by themselves. Such a state of affairs would truly be contrary to the interests of justice; and an intention to sanction such a state of affairs cannot be attributed to the legislature which established the Tribunal.

  1. [22]
    The dispute between the parties has had a long and eventful history. In the proceedings below, at least as they were before the decision under appeal, Mr Worthington claimed an amount of $93,696.83. Dr Ryan claimed an amount of $148,562.72 plus interest in accordance with the terms of the contract. The final result below was an award to Mr Worthington of $65,213.48 plus interest of $11,416.83.
  2. [23]
    As we have observed, Mr Worthington was entirely unsuccessful in his appeal. Dr Ryan on the other hand has been successful in his appeal.
  3. [24]
    Dealing first with the costs in APL163-18, we discern no reason as to why Dr Ryan should not have the benefit of a costs order both in respect of his appeal and in respect of Mr Worthington’s appeal. We must however consider whether Dr Ryan’s entitlement to costs should be reduced given that he was successful on only one ground of appeal. Mr Worthington says that Dr Ryan enjoyed only limited success in the appeal.
  4. [25]
    Dr Ryan originally relied upon three grounds of appeal:
    1. (a)
      Error by the tribunal in calculating damages. This was the ground of appeal on which Dr Ryan was ultimately successful;
    2. (b)
      Error by the tribunal in finding that the provisions of the contract extending the time for completion had been engaged. This ground of appeal was abandoned at the hearing of the appeal;
    3. (c)
      Error by the tribunal in finding that the builder was entitled to relief under s 18 of the Domestic Building Contracts Act 2000 (Qld). This ground of appeal was abandoned at the hearing of the appeal.
  5. [26]
    Costs are not usually apportioned between issues, but rather are determined based on the outcome of the proceedings as a whole, without attempting to differentiate between particular issues on which the successful party may not have succeeded.[9]  In Firebird Global Master Fund II Ltd v Republic of Nauru (No 2)[10] the High Court stated that there are:

… 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.

  1. [27]
    A balance must be struck between permitting litigants to canvas all issues, while not rewarding them for unreasonable conduct or encouraging the agitation of unnecessary issues.[11]
  2. [28]
    Dr Ryan was not unsuccessful in respect of grounds of appeal 2 and 3. He abandoned the grounds of appeal, admittedly late.
  3. [29]
    Generally speaking, if a party succeeds in obtaining the relief sought and loses only on particular issues it will not be deprived of costs.[12] Here the hearing was not improperly prolonged.[13] As the grounds were abandoned at the commencement of the hearing, there was no increase in the time taken in hearing the appeal.[14] 
  4. [30]
    The hearing was confined to the single, successful, ground of appeal. Any costs thrown away by the late abandonment of the other two grounds of appeal would appear to be confined to the drafting of submissions.
  5. [31]
    In the circumstances we conclude that Dr Ryan should have the costs of his appeal without reduction by apportionment. The grounds of appeal that were raised then not pursued did not, in our opinion, contribute to any great extent to waste of costs such that it is appropriate to apportion costs.
  6. [32]
    The appropriate order in APL163-18 is that the respondent pay the appellant’s costs of the appeal to be assessed on the standard basis in accordance with Schedule 2, Part 3 of the Uniform Civil Procedure Rules 1999 (Qld) as if the proceeding had been one in the Magistrates Court.
  7. [33]
    Turning to Mr Worthington’s appeal in proceeding APL045-17, while costs do not automatically follow the event in building dispute proceedings in the tribunal, we are nevertheless mindful of the general principles derived from Tamawood.  As we have observed, Mr Worthington was unsuccessful in APL045-17. The corollary of this outcome is that Dr Ryan was entirely successful. The litigation between the parties has been long and complex. Dr Ryan’s success in APL045-17 and indeed in APL163-18 would be unduly eroded if that success was not recognised in an order for costs.
  8. [34]
    The appropriate order in APL045-17 is that the appellant pay the respondent’s costs of the appeal to be assessed on the standard basis in accordance with Schedule 2, Part 3 of the Uniform Civil Procedure Rules 1999 (Qld) as if the proceeding had been one in the Magistrates Court.

Costs of the proceedings below

  1. [35]
    The member at first instance is best placed to determine the cost of the proceedings below. We will make orders that the matter be returned to the tribunal to determine the costs of the proceedings at first instance.

Final orders

  1. [36]
    There will be final orders as follows:

In APL045-17

  1. The appeal is dismissed;
  2. Steven Bryan Worthington t/as Worthington Simmons Builders must pay Dr Andrew William Ryan’s costs of the appeal to be assessed on the standard basis in accordance with Schedule 2, Part 3 of the Uniform Civil Procedure Rules 1999 (Qld) as if the proceeding had been one in the Magistrates Court.

In APL163-18

  1. Leave to appeal is granted.
  2. The appeal is allowed.
  3. The decision in BDL274-11 dated 17 January 2017 is varied by deleting order 1 and substituting the following order:
  1. Dr Andrew William Ryan pay Steven Bryan Worthington t/as Worthington Simmons Builders $25,925.72 for damages by 7 February 2017.
  1. Steven Bryan Worthington t/as Worthington Simmons Builders must pay Dr Andrew William Ryan’s costs of the appeal to be assessed on the standard basis in accordance with Schedule 2, Part 3 of the Uniform Civil Procedure Rules 1999 (Qld) as if the proceeding had been one in the Magistrates Court.

In APL 045-17 and APL163-18

  1. Proceeding BDL274-11 is remitted to the Tribunal for the determination of costs.

Footnotes

[1] Worthington v Ryan; Ryan v Worthington [2021] QCATA 138.

[2]  Being the reduction in the judgment sum of $37,930.00 and the interest amount of $11,416.83.

[3] Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(c).

[4] Queensland Building and Construction Commission Regulation 2018 (Qld), s 54(2).

[5]  QBCC Act, s 77(3)(h) and see Partington & Anor v Urquhart (No 4) [2019] QCATA 96.

[6] Lyons v Dreamstarter Pty Ltd [2012] QCATA 71.

[7] Wyatt v Albert Shire Council [1987] 1 Qd R 486.

[8]  [2005] QCA 111.

[9] Cretazzo v Lombardi (1975) 13 SASR 4 at 12.

[10]  [2015] HCA 53.

[11] Cretazzo v Lombardi (1975) 13 SASR 4.

[12] Australian Trade Commission v Disktravel [2000] FCA 62.

[13] Federal Commissioner of Taxation v AusNet Transmission Group Pty Ltd (No 2) [2015] FCAFC 124.

[14] Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374.

Close

Editorial Notes

  • Published Case Name:

    Steven Bryan Worthington t/as Worthington Simmons Builders v Dr Andrew William Ryan; Dr Andrew William Ryan v Steven Bryan Worthington t/as Worthington Simmons Builders

  • Shortened Case Name:

    Steven Bryan Worthington t/as Worthington Simmons Builders v Dr Andrew William Ryan; Dr Andrew William Ryan v Steven Bryan Worthington t/as Worthington Simmons Builders

  • MNC:

    [2022] QCATA 8

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown, Acting Senior Member Howe

  • Date:

    19 Jan 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Australian Trade Commission v Disktravel [2000] FCA 62
2 citations
Jump To
Cite 1 - [2000] FCA 62
Cite 2 - [2000] FCA 62
Cretazzo v Lombardi (1975) 13 SASR 4
3 citations
Jump To
Cite 1 - (1975) 13 SASR 4
Cite 2 - (1975) 13 SASR 4
Cite 3 - (1975) 13 SASR 4
Federal Commissioner of Taxation v AusNet Transmission Group Pty Ltd (No 2) [2015] FCAFC 124
2 citations
Jump To
Cite 1 - [2015] FCAFC 124
Cite 2 - [2015] FCAFC 124
Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53
2 citations
Jump To
Cite 1 - [2015] HCA 53
Cite 2 - [2015] HCA 53
Lyons v Dreamstarter Pty Ltd [2012] QCATA 71
2 citations
Jump To
Cite 1 - [2012] QCATA 71
Cite 2 - [2012] QCATA 71
Partington & Anor v Urquhart (No. 4) [2019] QCATA 96
2 citations
Jump To
Cite 1 - [2019] QCATA 96
Cite 2 - [2019] QCATA 96
Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374
2 citations
Jump To
Cite 1 - [2006] NSWCA 374
Cite 2 - [2006] NSWCA 374
Tamawood Ltd v Paans[2005] 2 Qd R 101; [2005] QCA 111
2 citations
Jump To
Cite 1 - [2005] QCA 111
Cite 2 - [2005] QCA 111
Worthington v Ryan [2021] QCATA 138
2 citations
Jump To
Cite 1 - [2021] QCATA 138
Cite 2 - [2021] QCATA 138
Wyatt v Albert Shire Council [1987] 1 Qd R 486
2 citations
Jump To
Cite 1 - [1987] 1 Qd R 486
Cite 2 - [1987] 1 Qd R 486

Cases Citing

Case NameFull CitationFrequency
Commissioner of State Revenue v Telgrove Pty Ltd (No 2) [2023] QCATA 1132 citations
Edwards v Sovereign Homes (Qld) Pty Ltd (no. 2) [2022] QCATA 442 citations
Gedoun Constructions Pty Ltd v Agius [2024] QCATA 432 citations
Gedoun Constructions Pty Ltd v Agius (no. 2) [2022] QCAT 3182 citations
Helu v Yuan (No 2) [2023] QCATA 832 citations
Steve Bagnall Homes Pty Ltd v Foley [2022] QCATA 972 citations
Weston v Worthington [2023] QCAT 2642 citations
1

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