Monsour v C & R Darvill Pty Ltd ATF C & R Darvill Family Trust
[2024] QCATA 110
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- Unreported Judgment
- Monsour v C & R Darvill Pty Ltd ATF C & R Darvill Family Trust[2024] QCATA 110
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Monsour v C & R Darvill Pty Ltd ATF C & R Darvill Family Trust[2024] QCATA 110
Monsour v C & R Darvill Pty Ltd ATF C & R Darvill Family Trust[2024] QCATA 110
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Monsour & Anor v C & R Darvill Pty Ltd ATF C & R Darvill Family Trust [2024] QCATA 110 |
PARTIES: | MARIE MONSOUR BRUCE MONSOUR (applicants/appellants) v C & R DARVILL PTY LTD ATF C & R DARVILL FAMILY TRUST (respondent) |
APPLICATION NO/S: | APL080-23 |
ORIGINATING APPLICATION NO/S: | BDL065-18 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 23 September 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Brown |
ORDERS: |
|
CATCHWORDS: | COSTS – ASSESSMENT OF COSTS – where respondent awarded costs at first instance – whether discretion to award costs miscarried – where Applicants appealed primary decision at first instance and were unsuccessful in the appeal – Whether the costs decision was appropriate in the circumstances Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 48, s 107, s 142, s 146, s 147 Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389 House v The King (1936) 55 CLR 499 Lollis v Loulatzis (No 2) [2008] VSC 35 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580 Monsour & Anor v C & R Darvill Pty Ltd [2022] QCAT 302 Monsour & Anor v C & R Darvill Pty Ltd [2023] QCAT 62 Monsour & Anor v C & R Darvill Pty Ltd [2024] QCATA 103 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Tamawood Ltd & Anor v Paans [2005] QCA 111 |
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]The Monsours brought proceedings against Darvill for a building dispute. Darvill brought a counter-application.
- [2]
- [3]The Monsours appealed both the primary decision (the primary appeal) and the costs decision. The appeal against the primary decision was unsuccessful (the primary appeal decision).[3] The appeal against the costs decision falls to be determined.
The costs decision
- [4]The central findings by the learned member are found in the following passages from the reasons:
- [36]There are other complaints made by Dr and Mrs Monsour, about time wasted by Counsel, long oral testimony by the builder, late provision of expert reports to the other. This issue by issue, piecemeal denigration of conduct by the losing side is not to be encouraged as reasons for an apportionment of costs. The builder was successful and Dr and Mrs Monsour were not. No greater delay was caused by the builder’s conduct at the hearing than that due to delay and confusion caused by the self-represented party.
- [37]Without the involvement of the legal representatives for the builder, Counsel in particular, the hearing would have been chaotic, the evidence far more confusing than was the case and the proceedings generally hampered by pursuit of irrelevant issues and evidence.
- [38]I conclude that the builder is entitled to an award of costs of the proceedings on the standard basis. (footnotes omitted)
- [5]The learned member was satisfied that it was appropriate to fix the costs and ordered the Monsours to pay Darvill the amount of $161,078.83.
Appeals against costs decisions
- [6]A party may appeal to the appeal tribunal against a decision of the tribunal if a judicial member did not constitute the tribunal in the proceeding.[4]
- [7]
- [8]
- [9]In deciding an appeal on a question of law the appeal tribunal may confirm or amend the decision, set aside the decision and substitute its own decision, set aside the decision and return the matter to the tribunal for reconsideration, or make any other order the appeal tribunal considers appropriate.[8]
- [10]If the appeal tribunal grants leave to appeal, where an appeal involves a question of fact or mixed law and fact, the appeal must be decided by way of rehearing. The appeal tribunal may confirm or amend the decision or set aside the decision and substitute its own decision.[9]
- [11]The principles in relation to whether leave to appeal should be granted are well established:
- (a)Is there a reasonably arguable case of error in the primary decision?[10]
- (b)Is there a reasonable prospect that the applicant will obtain substantive relief?[11]
- (c)Is leave necessary to correct a substantial injustice to the applicant caused by some error?[12]
- (d)Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[13]
- (a)
- [12]Whether or not to award costs involves the exercise of a discretion. Establishing that the discretion has miscarried is a high bar for an applicant to surmount. An applicant must be able to demonstrate that the decision maker: acted upon wrong principle; was mistaken about the facts; took into account irrelevant matters; failed to take into account a material consideration; made a decision that was unreasonable or plainly unjust.[14]
The grounds of appeal
- [13]In their submissions, the Monsours rely upon the following grounds of appeal:
Ground 1 - The learned member erred in law in finding that the amendment to Darvill’s counter-application to include a claim to recover amounts for variations pursuant to s 84 of the Domestic Building Contracts Act 2000 (Qld) (DBCA) was ‘in large part a cautionary formality’ when the amendment in fact materially disadvantaged the Monsours;
Ground 2 - The learned member erred in fact by finding that ‘it cannot be accepted that Dr and Mrs Monsour were ignorant of the workings of s 84 of the DBCA before the amendment was sought by Counsel’;
Ground 3 - The learned member erred in law in failing to take into account a relevant consideration namely that Darvill had failed to produce its witnesses for cross-examination which materially disadvantaged the Monsours;
Ground 4 - The learned member erred in fact in finding that ‘the claim by the builder was originally for $272,973.04, but reduced to $184,543.12 as at date of trial’ because as at the date of the trial Darvill still claimed $272,973.00;
Ground 5 - The learned member erred in law in failing to take into account a relevant consideration, that Darvill abandoned part of its counter-application after the start of the trial, and that conduct disadvantaged the Monsours.
- [14]It should be noted that ground 4 did not form part of the grounds of appeal in the application for leave to appeal or appeal. It should also be noted that there has been no application by the Monsours to amend the grounds of appeal. Despite this, and in light of Darvill’s submissions which address the ground, appeal ground 4 will be considered.
Consideration
- [15]The Tribunal may award costs in building dispute proceedings.[15] The discretion to award costs is a broad one to be exercised judicially. As was observed in Tamawood Ltd & Anor v Paans:
In the absence of countervailing considerations, where a party has reasonably incurred the cost of legal representation, and has been successful before the Tribunal, it could not rationally be said to be in the interests of justice to allow that success to be eroded by requiring that party to bear the costs of the representation which was reasonably necessary to achieve that outcome.[16]
Grounds 1 and 2
- [16]Darvill applied for, and was granted, leave to amend its counter-application on the first day of the hearing. The amendment included a claim by Darvill to recover amounts for variations pursuant to s 84 of the DBCA on the basis that ‘exceptional circumstances’ warranted conferring on Darvill the right to such recovery.
- [17]The learned member stated:
In so far as Counsel suggested the builder was required to make an application to the Tribunal for the purposes of s 84 and it had not already done so, the builder had already filed a Counter Application. Accordingly the amendment was in large part a cautionary formality. A Counter Application suffices as an application made to the Tribunal where separate application to deal with matters in relation to which orders are sought is required.[17]
- [18]The Monsours say that in the primary decision the learned member referred to the amendment to the counter-application by Darvill as being ‘added as a claim’ and in the costs decision referring to the amendment as a ‘cautionary formality’. The Monsours say that the learned member’s ‘decision to ignore that issue in the costs decision did not follow the objects of the QCAT Act, which is to be fair’.[18] The Monsours’ submissions are focussed upon what they say was error by the learned member in allowing the late amendment of the counter-application. This was a ground of appeal in the primary appeal. The ground was unsuccessful. It is said by the Monsours that the learned member did not comply with s 29(1)(a)(ii) of the QCAT which requires the tribunal to ensure that each party to a proceeding understands the nature of the assertions made in the proceeding and the legal implications of the assertions. It is unclear what the Monsours say is the connection between the learned member’s failure to comply with s 29 and the miscarriage of the discretion to award costs.
- [19]The learned member stated:
But in any case it cannot be accepted that Dr and Mrs Monsour were ignorant of the workings of s 84 DBCA before the amendment sought by Counsel. It had already been raised by the owners’ own solicitors at the time of their purported termination of the contract…[19]
- [20]The learned member went on to refer to an exchange with Dr Monsour on the first day of the hearing during which Dr Monsour expressed his understanding that the law had changed six months after the building contract was signed by the parties. This was a clear reference to the repeal of the DBCA.
- [21]The Monsours say that the learned member wrongly inferred that the relief sought by Darvill in the amended counter-application was always within the contemplation of the parties. For the reasons expressed in the primary appeal decision, this submission is rejected.[20] Further, it is entirely unclear how the Monsours say that the learned member’s discretion to award costs miscarried.
- [22]There is no substance to appeal grounds 1 and 2.
Ground 3
- [23]A number of Darvill’s witnesses were not available to be cross-examined at the hearing. In the primary decision, the learned member observed that the absence of the witnesses reduced the weight to be given to the evidence but did not entirely discount the statements from consideration.
- [24]The Monsours say that the learned member failed to take into consideration Darvill’s disentitling conduct under s 48(1)(a) of the QCAT Act. Section 48(1)(a) deals with a party acting in a way that unnecessarily disadvantages another party to the proceeding by not complying with a tribunal order or direction without reasonable excuse. In the proceeding below, directions were made by the tribunal that: ‘Unless the Tribunal otherwise orders all witnesses must attend the hearing in person for cross examination. Any application for a witness to attend the hearing by a remote means or by remote conferencing must be made prior to 14 days before the hearing’.
- [25]The Monsours say that the absence of Darvill’s witnesses was a breach of the direction. This submission is rejected.
- [26]The direction relied upon by the Monsours must be understood in context. The tribunal directions[21] required the parties to file their statements of evidence and the statements by each witness to give evidence for the party at the hearing. The direction relied upon by the Monsours in their submissions was preceded by the following direction: No party will be allowed to present any evidence that is not contained in the statements without justifying the need for such additional evidence to the Tribunal.
- [27]The direction referred to by the Monsours is concerned with the attendance at the hearing of a witness relied upon by a party. It does not require every witness who has provided a statement to attend the hearing. It is trite to observe that there may be circumstances in which a party chooses not to call a witness. And if a party perceives a forensic advantage in relying upon an opponent’s witness, they may take steps to compel the attendance of the witness at the hearing. It may also be that there are circumstances in which it is not possible to call a witness because the witness is unavailable. Accordingly, the direction did not compel the attendance of all witnesses who had provided statements. It simply provided that if a party intended to rely on such a witness, the witness was required to attend the hearing. In the circumstances below, as the end of the eighth day of the hearing drew close, Darvill could not contact the relevant witnesses and they were therefore not called.
- [28]The Monsours also say that two of Darvill’s witnesses, Mr Gannon and Mr Weeks, appeared and gave evidence by telephone rather than appearing in person. The Monsours say that the disadvantage of this was that the member was not able to assess the demeanour of the witnesses. It is not at all clear how this is said to have led to the miscarriage of the learned member’s discretion in making the costs order.
- [29]There is nothing to suggest that Darvill acted in a way contemplated by s 48(1)(a) of the QCAT Act. It follows that there was no error by the learned member.
- [30]Ground of appeal 3 is without substance.
Ground 4
- [31]The learned member stated:
The builder made a counter application for money owed in respect of a progress claim and for unpaid variation work, which latter required the builder to establish exceptional circumstances justifying payment pursuant to s 84(4) of then in force Domestic Building Contracts Act (2000) (Qld) (repealed). The claim by the builder was originally for $272,973.04, but reduced to $184,543.12 as at date of trial.
- [32]Appeal ground 4 may be considered in two parts: whether there was error by the learned member in referring to the reduction in the amount claimed by the builder ‘as at date of trial’; and whether the learned member failed to take into consideration the reduction in the amount claimed in exercising the discretion to award costs.
- [33]Dealing with the first part of the ground of appeal, the Monsours say that Darvill only reduced its claim after the hearing had commenced. This part of the appeal ground may be dealt with succinctly. The reference by the learned member to Darvill’s claim being reduced ‘as at date of trial’ must be considered in context. The hearing lasted eight days over several months. The learned member did not state that Darvill’s claim was reduced as at the commencement of the hearing. The impugned sentence from the reasons should be understood as meaning that before the hearing commenced Darvill’s claim was for $272,973.04 and that during the hearing the claim was reduced to $184,543.12. Even if the Monsours’ submission is accepted, they fail to demonstrate any consequent error in the exercise of the discretion.
- [34]Turning to the second part of the appeal ground, the Monsours say the learned member failed to take into account a relevant consideration, that Darvill abandoned part of its counter-application after the hearing had started. The Monsours say that Darvill reduced the claim for unpaid variations by 28% and that the counter-application was reduced by a total of 43%. They say that this was disentitling conduct because the abandoned claims were pursued vigorously throughout the hearing and were ‘hotly contested’ before being abandoned. The Monsours say that it is not just or reasonable for them to be required to pay costs for abandoned claims. They say that part of the costs claimed by Darvill for preparing and pursuing abandoned claims were thrown away and should have been reflected in the amount of costs awarded to Darvill.
- [35]The learned member referred to the Monsours’ ‘issue by issue’ piecemeal denigration of conduct, observing that this was not to be encouraged as reasons for apportionment of costs. The learned member referred to the decision of the High Court in Firebird Global Master Fund II Ltd v Republic of Nauru (No 2)[22] where it was stated:
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.
- [36]The Monsours filed lengthy costs submissions in the proceeding below. Those submissions addressed the reduced quantum of Darvill’s counter-application and addressed in some detail the considerations which the Monsours said were relevant to the exercise of the discretion to award costs. The learned member clearly had reference to those submissions in reaching his decision.
- [37]Darvill was substantially successful in the proceeding. The learned member found that the Monsours were not entitled to recover amounts paid to Darvill for non-compliant variations. Of the twenty five items of building work the Monsours claimed were defective, six items were allowed with a modest rectification cost of $2,045.90 allowed. Darvill claimed payment for a total of twenty-two variations. Of these, two were abandoned by the builder, five claims were disallowed and eighteen claims were allowed totalling $99,163.30. In addition Darvill was awarded $37,290.22 in respect of an outstanding progress payment which had been claimed in the amount of $70,958.41. Darvill abandoned a claim for loss of profit in the amount of $42,961.92.
- [38]Darvill says that no costs were incurred by the Monsours in dealing with the reduction in quantum of some aspects of the builder’s claim for the value of work undertaken. In relation to the claim for loss of profit which was abandoned, Darvill says that no evidence was led by it nor were any submissions made and no hearing time was devoted to the issue. Darvill says the assertion by the Monsours that the abandoned claims were vigorously pursued and hotly contested is a gross over-exaggeration without supporting transcript or other references being cited.
- [39]There is force in Darvill’s submission.
- [40]The Monsours’ submissions are, insofar as it is asserted the abandoned claims were pursued with vigour and were hotly contested, devoid of meaningful detail. And while the submissions may be relevant to the quantum ofcosts they do not address the central issue of whether the learned member’s discretion to award costs miscarried. To this extent, the submissions are unpersuasive.
- [41]The Monsours refer to Darvill’s conduct as vexatious and disentitling. Disentitling conduct is not necessarily misconduct. It may include conduct calculated to occasion unnecessary expense.[23] There is no suggestion that Darvill raised issues or made allegations improperly or unreasonably. Nor could Darvill’s conduct in respect of the abandoned claims be so characterised.
- [42]The Monsours have not established any error by the learned member in the exercise of the discretion to award costs. Grounds of appeal 4 and 5 are not made out.
Conclusion
- [43]Leave to appeal is refused.
- [44]I will make directions for the parties to file and exchange submissions on the costs of the appeal.
Footnotes
[1] Monsour & Anor v C & R Darvill Pty Ltd [2022] QCAT 302.
[2] Monsour & Anor v C & R Darvill Pty Ltd [2023] QCAT 62.
[3] Monsour & Anor v C & R Darvill Pty Ltd [2024] QCATA 103.
[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 142(1).
[5] Ibid, s 142(2)(c).
[6] Ibid, sch 3 (definition of ‘cost-amount decision’).
[7] Ibid, s 142(3)(a)(iii).
[8] Ibid, s 146.
[9] Ibid, s 147.
[10] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[11] Cachia v Grech [2009] NSWCA 232 (30 July 2009), [13].
[12] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[13] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580.
[14] House v The King (1936) 55 CLR 499.
[15] Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(h).
[16] [2005] QCA 298.
[17] Reasons at [32].
[18] Appellants’ appeal submissions.
[19] Reasons at [34].
[20] Primary decision at [25].
[21] Tribunal directions dated 29 August 2018.
[22] [2015] HCA 53.
[23] Lollis v Loulatzis (No 2) [2008] VSC 35.