Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCATA
  3. 2024
  4. Purnell v Manson t/as Manson Homes - [2024] QCATA 48

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

Purnell v Manson t/as Manson Homes[2024] QCATA 48

Purnell v Manson t/as Manson Homes[2024] QCATA 48

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Purnell & Anor v Manson t/as Manson Homes [2024] QCATA 48

PARTIES:

SARAH PURCELL and stewart brett

(applicant/appellant)

v

LEE MANSON t/as Manson Homes

(respondent)

APPLICATION NO/S:

APL346-19

ORIGINATING APPLICATION NO/S:

BDL117-14

MATTER TYPE:

Appeals

DELIVERED ON:

17 April 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

Senior Member Traves

ORDERS:

  1. Lee Manson t/as Manson Homes must pay Sarah Purnell’s and Stewart Brett’s costs of the appeal on the standard basis to be agreed or failing agreement to be assessed on the Magistrates Courts Scale, Schedule 2 Part 3 of the Uniform Civil Procedure Rules 1991 as if the proceeding had been brought in that court.
  1. The proceeding is remitted to enable the determination of costs in proceeding BDL117-14.

CATCHWORDS:

PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS  Where appellants successful on appeal – Where appellants made a settlement offer – Where respondent rejected the settlement offer – Whether rejection of offer reasonable – Where appellant claims costs on an indemnity basis – Whether the respondent was in a position to reasonably consider the offer at the time that it was made

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

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

Brett & Anor v Manson t/as Manson Homes [2020] QCATA 122

CJZ Pty Ltd v Giant Dwarf Pty Ltd; CJZ Pty Ltd v Morrow [2023] NSWCA 135

Fick v Groves (No 2) [2010] QSC 182

Harrison & Anor v Meehan [2017] QCA 315

Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) [2005] VSCA 298

Lee Manson t/as Manson Homes v Brett & Purnell [2016] QCAT 282;

Lee Mason t/as Lee Manson Homes v Brett & Anor [2017] QCATA 124;

Lee Manson t/as Manson Homes v Brett & Anor [2018] QCATA 109;

Manson v Brett & Anor (No. 2) [2019] QCAT 411.

McGee v Queensland Building and Construction Commission & Anor [2018] QCATA 124

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

Purnell & Anor v Manson [2023] QCATA 77.

Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39.

Tamawood Ltd v Paans [2005] 2 Qd R 101

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)

Applicant:

Mr C Wilson of counsel –

Respondent:

All Building Law

REASONS FOR DECISION

  1. [1]
    After a lengthy history in the Tribunal, including an appeal, the appellant homeowners were ordered to pay the respondent builder $25,254.00. The appellants successfully appealed the decision and the respondent was ordered to pay the appellants $20,103.00.[1]
  2. [2]
    The costs of the appeal fall to be determined.

The dispute and the decision of the Appeal Tribunal

  1. [3]
    The dispute between the parties has been the subject of comprehensive tribunal consideration.[2]The respondent undertook renovation works to the appellants’ home. The appellants terminated the contract before the enclosed stage of works had been completed by the respondent. The tribunal found the appellants’ termination to have been lawful. The respondent unsuccessfully appealed this decision (the first appeal proceedings). The proceeding was returned to the tribunal to decide the remaining issues relevant to the appellants’ termination. The tribunal ordered the appellants to pay the respondent $25,254.00. The appellants appealed on a number of grounds: the tribunal erred in assessing the appellants costs of completing the works; the tribunal erred in allowing the respondent to recover on a quantum meruit for the enclosed stage of works and further works completed by the respondent; the tribunal erred when dealing with a particular item of building work relating to bi-fold doors and in allowing the respondent to recover an amount in respect of the item; the tribunal erred in assessing the appellants’ claim for payment of rent.
  2. [4]
    The appellants sought a stay of the decision of the tribunal. That application was refused.[3]
  3. [5]
    We found that the tribunal had erred in allowing the respondent’s quantum meruit claim. As this error was one of mixed law and fact, the appeal was determined by way of rehearing as required by s 147 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). We found that:
    1. The respondent was not entitled to recover, on a quantum meruit, an amount in respect of the enclosed stage of works, or an amount in respect of work completed beyond the enclosed stage;
    2. The appellants were entitled to recover $143,300 for the cost of completing the building works;
    3. The appellants were entitled to recover $10,920 for late completion damages;
    4. The respondent was not entitled to recover an amount for the work relating to the bi-fold doors;
    5. The appellants’ entitlement to damages, including the costs of completing the works, totalled $167,190 less the balance payable to the respondent under the contract of $147,087 being a nett assessment of $20,103.

What do the parties say about the costs of the appeal?

  1. [6]
    Before considering the parties’ submissions on costs, it is appropriate to say something about the costs of the proceedings below and of the first appeal. No costs order was made by the tribunal following the initial determination that the appellants had lawfully terminated the contract. Following the first appeal proceedings, the respondent was ordered to pay the appellants’ costs of the first appeal. In the resumed proceeding below, both parties submitted that they be heard on the question of costs after the tribunal’s final decision. The costs of the proceeding below remain unresolved. 
  2. [7]
    As to the costs of these appeal proceedings, the appellants say that there should be no order for costs in respect of the unsuccessful stay application.  Given the complexity of the issues in dispute, the appellants say it is common ground between the parties that legal representation below and in the appeal was justified. They say that the respondent should pay their costs of the proceeding below and of the appeal. The appellants say that they are entitled to their costs of the appeal on an indemnity basis, having ultimately achieved a result on terms more favourable to them than an offer to settle made before the determination of the second appeal. The appellants say that the costs should be assessed on the Magistrates Court scale applicable to claims over $50,000.[4]
  3. [8]
    The respondent says that although the appellants had a measure of success, they were not entirely successful in the appeal. The respondent agrees that, if costs are awarded, the appropriate scale is the Magistrates Court scale, Schedule 2 Part 3 of the Uniform Civil Procedure Rules 1991. However, the respondent says that there should be no order for costs. As to the appellants’ offer to settle, the respondent says that it was reasonable for it not to accept the appellants’ offer to settle because: the appellants refused to pay the amount awarded by the tribunal below; the appellants’ stay application had been refused casting doubt on the appellants’ prospects of success; the offer was ‘all up’ meaning it was difficult for the respondent to assess whether the settlement was reasonable.

Consideration

  1. [9]
    By s 77(3)(h) of the Queensland Building and Construction Commission Act 1991 (Qld) the tribunal may award costs in a proceeding for a building dispute. This power extends to appeal proceedings.[5] The power to award costs requires the exercise of a discretion. In exercising the discretion, the appeal tribunal must act judicially.[6]
  2. [10]
    Unlike in the courts, costs do not follow the event in a building dispute proceeding. Nevertheless, the erosion of the fruits of litigation by the legal costs incurred by the successful party is a relevant matter when considering whether the interests of justice weigh in favour of a costs award.[7]  The appeal proceedings were complex both legally and factually. It was reasonable for the parties to be legally represented. Leave for the parties to be legally represented was granted early in the appeal proceeding.
  3. [11]
    Nor does the appellants’ partial success mean that the approach to costs should be fragmented by reference to the success or otherwise of the various grounds of appeal. In Speets Investment Pty Ltd v Bencol Pty Ltd (No 2)[8] the Court of Appeal stated:

It is important to recognise, however, that it does not follow from the foregoing that the application of the general rule should usually lead to costs orders which reflect different results on separate events or issues. The Court is given a broad discretion and is specifically empowered to determine that some other order is more appropriate.

In practice, courts often take the approach of identifying heads of controversy or ‘units of litigation’ (rather than what might technically be regarded as issues on the pleadings) regarding success or failure on the head of controversy or unit of litigation as the criterion for awarding costs: see Thiess v TCN Channel 9 Pty Ltd (No 5) at 207–8 and Chief Executive, Department of Transport and Main Roads v Cidneo Pty Ltd [2015] QCA 168 at [1].

The general approach is that there must be special or exceptional circumstances to warrant depriving a successful party of its costs and the mere fact that the successful party has been unsuccessful on some issues will ordinarily not be sufficient to do so: Courtney v Chalfen [2021] QCA 25 at [5]. On an appeal, for example, where a party has succeeded on one of two ways to the same outcome, the Court of Appeal might well regard the costs of the second way on which that party failed as not so distinct conceptually or practically as to warrant making a costs order which reflected that party’s failure: Chief Executive, Department of Transport and Main Roads v Cidneo Pty Ltd at [1] . On the other hand, one circumstance in which it might be appropriate to award costs of a particular question or part of a proceeding is where that matter is definable and severable and has occupied a significant part of the proceeding…[9]

  1. [12]
    Having established error by the tribunal in allowing the respondent to recover for the incomplete stage (and beyond) on a quantum meruit, the appeal was required to be decided by way of rehearing.[10] As such, the individual significance of the remaining grounds of appeal were subsumed to some extent into the rehearing. As the Court of Appeal stated in Harrison & Anor v Meehan:[11]

This meant that all of the questions raised by the applicants’ appeal were to be considered in the rehearing by the Appeal Tribunal. However in giving its reasons for the disposition of the appeal, the Appeal Tribunal did not have to discuss distinctly each of those questions, if the reasons sufficiently explained how the Appeal Tribunal reached its conclusion.[12]

  1. [13]
    At first instance, the respondent was awarded $77,232.20 on a quantum meruit for the incomplete enclosed stage and the works completed beyond this stage. The issue of the respondent’s entitlement to recovery occupied a significant part of the hearing below and the parties’ written arguments in the appeal. The appellants’ success on this ground of appeal resulted in the respondent being disentitled to recover the amount.
  2. [14]
    Similarly, at first instance, the appellants’ claim in the amount of $147,000 for the cost of completing the works was reduced to $29,768.30. Following the rehearing the appellants were awarded a significant part of the amount originally claimed, $143,300.  As with the respondent’s quantum meruit claim, the issue of the costs incurred by the appellants in completing the building work occupied a significant part of the proceeding below and the appeal proceeding.
  3. [15]
    At first instance, the appellants claimed rent payments incurred as a result of the delays in the completion of the works in the amount of $45,780. The tribunal awarded $9,240, finding that the appellants had the capacity to fund the completion of the works at an earlier time. On appeal the appellants enjoyed only modest success, the claim for rent payments being increased to $10,920. It could not however be said that this ground of appeal occupied a significant part of the appeal proceeding.
  4. [16]
    It may therefore be seen that the appellants were successful to a significant extent in the appeal and on this basis, the appellants should have their costs of the appeal.
  5. [17]
    On 15 December 2020 the appellants made a written offer to settle, expressed as a Calderbank offer. The appellants offered to settle the appeal proceeding on the basis that the parties’ consent to an order setting aside the decision at first instance and each party bear their own costs of the proceeding below and of the appeal.
  6. [18]
    In McGee v Queensland Building and Construction Commission & Anor[13]  the Appeal Tribunal stated:

In our view, in exercising the discretion to award costs, the relevant matters the tribunal must consider are the same irrespective of whether the written offer is expressed as a Calderbank offer or falls for consideration as an offer under rule 86. Both require a value judgment of the offer and the conduct of the parties in the context of the nature and circumstances of the proceedings.[14]

  1. [19]
    In Fick v Groves (No 2)[15] Applegarth J considered whether the unsuccessful plaintiff’s rejection of an offer was reasonable or not.  Applegarth J adopted what was said by the Victorian Court of Appeal in Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2)[16] that a court considering a submission that the rejection of a Calderbank offer was unreasonable should have regard to the following matters:
  1. (a)
    the stage of the proceedings at which the offer was received;
  1. (b)
    the time allowed to the offeree to consider the offer;
  1. (c)
    the extent of the compromise offered;
  1. (d)
    the offeree’s prospects of success, assessed at the date of the offer;
  1. (e)
    the clarity with which the terms of the offer were expressed; and
  1. (f)
    whether the offer foreshadowed the application for an indemnity costs order in the event of the offeree rejecting the offer.
  1. [20]
    The offer was made at a relatively late stage of the proceeding. At the time of the offer, the substantive preparation had been undertaken by both parties. The only interlocutory step after the offer and before the final determination was the appellants’ application to have the appeal decided on the papers. That application was allowed. The policy behind the awarding of costs on an indemnity basis as a consequence of a Calderbank offer is to encourage the parties to assess the strengths and weaknesses of their respective cases at an early stage.[17] The stage at which the offer was made, together with the subsequent determination that the appeal be decided on the papers, tells against making an indemnity costs order.
  2. [21]
    The offer was open for acceptance for a period of seven days. This factor is not persuasive one way or the other.
  3. [22]
    The offer was in three parts: the decision under appeal be set aside; the parties release the other from any entitlement to costs consequential upon both of the decisions at first instance; each party pay their own costs of the appeal.
  4. [23]
    It is not clear from the offer whether the appellants proposed that the Appeal Tribunal would make orders by consent in the terms of the offer. If so, the offer does not make clear what, if any, order was to be made if the decision of the tribunal at first instance was set aside. To simply set aside the decision and make no further order would leave the final outcome of the proceeding at first instance uncertain. The costs of the proceeding below remain undetermined. At the time the offer was made it was not possible for the respondent to assess the extent of the compromise offered in respect of the costs of the proceeding below. These considerations tell against an indemnity costs order.
  5. [24]
    Although expressed as a Calderbank offer, the appellants did not foreshadow an application for indemnity costs if the offer was rejected by the respondent. This tells against an indemnity costs order.
  6. [25]
    As to the appellants’ prospects of success as at the date of the offer, as has been observed, the parties had completed the substantive preparation for the appeal. The respondent was at the time the offer was made able to assess the appellants’ prospects of success. As was observed in the reasons given for refusing the appellants’ application to stay the decision below, the appellants’ case had clear merit.
  7. [26]
    Taking into consideration all of these matters we conclude that the respondent did not act unreasonably in not accepting the appellants’ offer. It follows that this is not a case in which it is appropriate for an indemnity costs order to be made.

Conclusion

  1. [27]
    Both parties agree that the appropriate scale for the assessment of costs is the Magistrates Court scale, Schedule 2 Part 3 of the Uniform Civil Procedure Rules 1991.
  2. [28]
    The appropriate order is that the respondent pay the appellants’ costs of the appeal on the standard basis to be agreed or failing agreement to be assessed on the Magistrates Courts Scale, Schedule 2 Part 3 of the Uniform Civil Procedure Rules 1991 as if the proceeding had been brought in that court.
  3. [29]
    The Tribunal below is in the best position to determine the costs of the proceeding at first instance. The proceeding is remitted to enable the determination of costs.

Footnotes

[1] Purnell & Anor v Manson [2023] QCATA 77.

[2] Lee Manson t/as Manson Homes v Brett & Purnell [2016] QCAT 282; Lee Mason t/as Lee Manson Homes v Brett & Anor [2017] QCATA 124; Lee Manson t/as Manson Homes v Brett & Anor [2018] QCATA 109; Manson v Brett & Anor (No. 2) [2019] QCAT 411.

[3] Brett & Anor v Manson t/as Manson Homes [2020] QCATA 122.

[4]  The appellants claimed on appeal an amount of $202,834.30.

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

[6]  Ibid at [12].

[7] Tamawood Ltd v Paans [2005] 2 Qd R 101.

[8]  [2021] QCA 39.

[9]  Ibid at [14] to [16].

[10]  QCAT Act, s 147(2).

[11]  [2017] QCA 315.

[12]  Ibid at [50] per McMurdo JA.

[13]  [2018] QCATA 124.

[14]  Ibid at [62].

[15]  [2010] QSC 182.

[16]  [2005] VSCA 298.

[17] CJZ Pty Ltd v Giant Dwarf Pty Ltd; CJZ Pty Ltd v Morrow [2023] NSWCA 135.

Close

Editorial Notes

  • Published Case Name:

    Purnell & Anor v Manson t/as Manson Homes

  • Shortened Case Name:

    Purnell v Manson t/as Manson Homes

  • MNC:

    [2024] QCATA 48

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown, Senior Member Traves

  • Date:

    17 Apr 2024

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
Brett v Manson [2020] QCATA 122
2 citations
Jump To
Cite 1 - [2020] QCATA 122
Cite 2 - [2020] QCATA 122
Chief Executive, Department of Transport and Main Roads v Cidneo Pty Ltd [2015] QCA 168
1 citation
Jump To
Cite 1 - [2015] QCA 168
CJZ Pty Ltd v Giant Dwarf Pty Ltd; CJZ Pty Ltd v Morrow [2023] NSWCA 135
2 citations
Jump To
Cite 1 - [2023] NSWCA 135
Cite 2 - [2023] NSWCA 135
Courtney v Chalfen [2021] QCA 25
1 citation
Jump To
Cite 1 - [2021] QCA 25
Fick v Groves (No 2) [2010] QSC 182
2 citations
Jump To
Cite 1 - [2010] QSC 182
Cite 2 - [2010] QSC 182
Harrison v Meehan [2017] QCA 315
2 citations
Jump To
Cite 1 - [2017] QCA 315
Cite 2 - [2017] QCA 315
Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298
2 citations
Jump To
Cite 1 - [2005] VSCA 298
Cite 2 - [2005] VSCA 298
Lee Manson t/as Manson Homes v Brett [2018] QCATA 109
2 citations
Jump To
Cite 1 - [2018] QCATA 109
Cite 2 - [2018] QCATA 109
Lee Manson v Brett [2017] QCATA 124
2 citations
Jump To
Cite 1 - [2017] QCATA 124
Cite 2 - [2017] QCATA 124
Lee Manson v Brett [2016] QCAT 282
2 citations
Jump To
Cite 1 - [2016] QCAT 282
Cite 2 - [2016] QCAT 282
Manson v Brett (No 2) [2019] QCAT 411
2 citations
Jump To
Cite 1 - [2019] QCAT 411
Cite 2 - [2019] QCAT 411
McGee v Queensland Building and Construction Commission [2018] QCATA 124
2 citations
Jump To
Cite 1 - [2018] QCATA 124
Cite 2 - [2018] QCATA 124
Partington & Anor v Urquhart (No. 4) [2019] QCATA 96
2 citations
Jump To
Cite 1 - [2019] QCATA 96
Cite 2 - [2019] QCATA 96
Purnell v Manson [2023] QCATA 77
2 citations
Jump To
Cite 1 - [2023] QCATA 77
Cite 2 - [2023] QCATA 77
Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39
2 citations
Jump To
Cite 1 - [2021] QCA 39
Cite 2 - [2021] QCA 39
Tamawood Ltd v Paans[2005] 2 Qd R 101; [2005] QCA 111
2 citations
Jump To
Cite 1 - [2005] 2 Qd R 101
Cite 2 - [2005] 2 Qd R 101

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.