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Mitchell v The Body Corporate of Paloma[2004] QDC 11

Mitchell v The Body Corporate of Paloma[2004] QDC 11

Mitchell v The Body Corporate of Paloma [2004] QDC 11

DISTRICT COURT OF QUEENSLAND

CITATION:

Mitchell v The Body Corporate of Paloma & Anor [2004] QDC 011

PARTIES:

bruce joseph mitchell

Appellant

and

the body corporate of paloma

First Respondent

and

monier wunderlich Pty Ltd

Second Respondent

FILE NO:

625/2002

DIVISION:

District Court of Queensland

PROCEEDING:

Appeal

DELIVERED ON:

9 January 2004

DELIVERED AT:

Southport

HEARING DATE:

5 December 2003

JUDGE:

Alan Wilson SC, DCJ

ORDER:

  1. Appeal dismissed
  2. Appellant to pay Respondents costs of and incidental to the appeal assessed on the standard basis

CATCHWORDS:

APPEAL – APPEAL AGAINST APPORTIONMENT OF COSTS – appeal from Queensland Building Tribunal – whether Tribunal erred in apportioning costs – matters relevant to appeal in respect of costs

Domestic Building Contracts Act 2000

Queensland Building Tribunal Act 2000

Cases considered:

Brisbane City Council v Mainsel Investments Pty Ltd (1989) 2 Qd R 204;

Clarke v Japan Machines (Australia) Pty Ltd (1984) 1 Qd R 404

Budlex v Hogue (2002) QDC 260

House v The King (1936) 55 CLR 499

Northbuild Construction Pty Ltd v McGrath Corporation Pty Ltd (2002) QDC 202

Pingel v R & R Leach Pty Ltd & Ors (2002) QCA 275

Pointon v Redcliffe Demolitions Pty Ltd [2002] QDC 131

Queensland Building Services Authority v Wyatt (2002) QDC 326

State Rail Authority (New South Wales) v Earthline Constructions Pty Ltd (1999) 74 ALJR 306

Stephens v The Auctioneers & Agents Committee (Appeal 5069/00, 16/5/02)

Warren v Coombes (1979) 142 CLR 531

COUNSEL:

Mr C J R Wiltshire for the appellant

Ms S J Armitage for the first respondent

Mr R P S Jackson for the second respondent 

SOLICITORS:

Dr Anthony Watson-Brown for the appellant

Lambert & Ho for the first respondent

Scoglio Law for the second respondent

  1. [1]
    This is an appeal from a decision of Mrs C Roney, Deputy Chair of the Queensland Building Tribunal, of 17 June 2002 that the appellant pay the second respondent’s costs of proceedings before that Tribunal in the amount of $9,394.66 and that the first respondent pay the second respondent’s costs in the sum of $4,697.34. Those costs orders finalised proceedings between the parties to this appeal, and another party, before that Tribunal which had been commenced by the appellant in March 2001.
  1. [2]
    S 92 of the Queensland Building Tribunal Act 2000 (“the Act”) provides:

92Appeals

  1. (1)
    A party to a proceeding before the tribunal may appeal to the District Court against a decision of the tribunal that finally decides matters the subject of the proceeding.
  1. (2)
    An appeal must be filed within 28 days after the decision takes effect.
  1. (3)
    An appeal must –
  1. (a)
    be accompanied by the tribunal’s decision and reasons for decision, if any; and
  1. (b)
    refer to the tribunal’s decision and reasons for decision, if any, and any other relevant material and state the grounds for the application.
  1. (4)
    The appeal is by way of rehearing, unaffected by the tribunal’s decision, on the material before the tribunal and any further evidence allowed by the District Court.
  1. (5)
    The tribunal is not a party to the appeal but the party appealing must serve a copy of the appeal and supporting documents on the tribunal within 7 days of filing the appeal in the District Court.
  1. (6)
    On an appeal, the District Court may do any of the following –
  1. (a)
    confirm, annul, vary or reverse the tribunal’s decision; or
  1. (b)
    remit the case to the tribunal for further hearing or rehearing; or
  1. (c)
    make consequential or ancillary orders or directions.
  1. (7)
    The registrar of the District Court must give the tribunal a copy of the court’s judgment and reasons.
  1. [3]
    All parties accepted that this court has jurisdiction to determine the appeal notwithstanding the decision relates purely to the issue of costs[1].  The nature of an appeal of this kind was considered by McGill SC DCJ in Pointon v Redcliffe Demolitions Pty Ltd [2002] QDC 131 in which his Honour said:

It is necessary to give effect to whatever the legislature has in fact enacted, but that requires giving effect to the section as a whole.  Although the expression ‘unaffected by the Tribunal’s decision’ looked at in isolation suggests (indeed virtually demands) a rehearing de novo, it seems to me that when the section as a whole is analysed the various considerations referred to earlier arising from other provisions of the section are to the contrary and indicate overall that what was intended was an appeal by way of rehearing in the ordinary sense.  The insertion of the difficult expression may perhaps be attributed to a desire to ensure that more than an appeal in the strict sense was provided, and to add emphasis to the obligation of the court hearing the appeal to make up its own mind, as emphasised by Kirby J in Earthline.  I do not consider however that that changes the basic approach to an appeal by way of rehearing.

It follows that the appellant has been under a misapprehension as to the true nature of the appeal in the present case.  I would be disposed to forgive that misapprehension, since at one time I shared it myself.  At the time when this matter was argued before me I thought that this section did require a rehearing de novo, perhaps modified as in the case of Stephens.  Consideration of the various authorities to which I have referred, however, and in particular the terms of s 92 as a whole, finally leads me to the conclusion that it is really an appeal by way of rehearing in the usual sense.  Accordingly the onus is on the appellant to show that there was something wrong in the decision.  And further, since the decision was based on findings of primary fact involving the assessment of creditability of witnesses, the appellant will face the particularly difficulty identified by the High Court in overcoming the advantage of the Tribunal which has seen and heard the witnesses.  In this respect the applicable approach in the present case is that in Warren v Coombes.

  1. [4]
    The issue has also been considered in several subsequent cases in this court[2]. In Queensland Building Services Authority v Wyatt (2002) QDC 326 his Honour Senior Judge Skoien said:

The first point to be decided is the nature of the appeal, the difficulty arising from the extraordinary insertion in subsection (4) of the phrase ‘unaffected by the tribunal’s decision’, a phrase which would seem to negate the description of the appeal as being by way of rehearing.

My task has been made easier by the fact that his Honour Judge McGill has recently delivered reasons in Pointon v Redcliffe Demolitions Pty Ltd [2002] QDC 131, in which he carefully and comprehensively examined the Authorities.  He concluded (and I respectfully agree with him) that what is intended by s 92 is an appeal by way of rehearing in the ordinary sense.  Accordingly, the onus is on the appellant to show that there was something wrong in the decision …

To the extent that the appeal challenges the exercise of a discretion exercised by the Tribunal, it seems to me that the test must be the same.  There is a strong presumption that the discretion has been correctly exercised and it will be overturned only if the appeal court is satisfied it is clearly wrong.  A description of the sorts of error which can give rise to success on appeal is contained in House v The King (1936) 55 CLR 499 at 504-5.  While McGill DCJ did not need expressly to reach this conclusion in Pointon, it seems to be quite clear from his reasoning that he would have.

  1. [5]
    The issues in this appeal have a context in the rather unusual history of the proceedings before the Tribunal. An action was commenced in the Magistrates Court at Brisbane in December 2000 between a Mr David King as plaintiff and the appellant as defendant, Mr King claiming under an oral agreement for performance of painting work at a unit block at Mermaid Beach called “Paloma”. That claim was transferred to the Tribunal by order of the Magistrates Court of 30 April 2001. In the interim Mr Mitchell had brought an application in the Tribunal on 9 March 2001 nominating the Body Corporate of Paloma as first respondent and Mr King as a third party and claiming $25,367.40 together with interest in respect of variations to a contract for certain rectification work to the Paloma units. A mediator was appointed by the Tribunal on 4 June. The mediation took place on 19 June and achieved a partial resolution.
  1. [6]
    The matter then came before the Tribunal on 31 July 2001 for orders in terms of that resolution. Some issues remained unresolved and the Tribunal appointed the Queensland Building Services Authority (“the Authority”) as an expert for the purpose of conducting an on-site inspection.
  1. [7]
    At a directions hearing on 21 August 2001 a consent order was made joining the second respondent Monier to the application, at the request of the appellant. On 30 August further consent orders were made requiring a payment by the first respondent to the appellant, the completion of works by the appellant and a further report to be delivered by a Mr MacGregor, the expert nominated by the Authority.
  1. [8]
    On 16 October 2001 further consent orders were made that the application as between the appellant and the first respondent be dismissed, with no orders as to costs. Later, on 12 November 2001 another consent order was between the remaining parties to the dispute, the appellant and the present second respondent Monier “…that the matter be deemed resolved and adjourned to the Registry”.
  1. [9]
    There was however a further directions hearing on 20 December 2001 when it appeared that certain matters relating to the fixing of tiles had not been resolved and orders were made for the filing of statements of evidence by the appellant and the second respondent and the matter was listed for hearing on 11 February 2002.
  1. [10]
    A pre-hearing directions hearing took place on 4 February and then on 11 February the Tribunal heard evidence on the question of tile fixing. The Tribunal found that the tile fixing had been completed to a reasonable, workmanlike standard and nothing further was required to be done. Reasons for this decision were delivered on 16 April 2002. The question of costs was adjourned to 17 June when further argument was heard and the orders, from which the appellant now appeals, were made.
  1. [11]
    It is clear from the Tribunal’s reasons of 17 June 2002 that delay and uncertainty in the proceedings before it were caused by a difference of opinion between Mr MacGregor, the Authority’s inspector, and the second respondent. Mr MacGregor wrote reports on 15 August and 9 October 2001 concluding that the tile fixing was inadequate, but Monier disagreed. Ultimately, the Tribunal agreed with Monier, Mrs Roney concluding that on the weight of the expert evidence before her the tile fixing was adequate.
  1. [12]
    Matters became complicated because, in the course of the proceedings, the appellant had consented to the order of 30 August 2001 which included a requirement that he “…complete the work the subject of the superintendent’s defects list and that work identified in Mr MacGregor’s report by 13 September 2001”.  In the hearing on 11 February 2002, however, Mrs Roney determined the appellant did not have to comply with Mr MacGregor’s requirements or indeed do anything more in terms of fixing the tiles.
  1. [13]
    In her reasons for making the costs order (delivered 17 June 2002, after a hearing of 7 May 2002) Mrs Roney traversed these matters and said, relevantly:
  1. 19.
    By the terms of this further agreement as recorded in the order of 30 August 2001 regarding performance of the tile fixing work the applicant has in fact agreed to undertake a higher standard of fixing than is required by the MacGregor report of 15 August 2001, when compared with the performance required under the mediation agreement of 18 June 2001, which required performance in accordance with Monier specifications.
  1. 20.
    The applicant appeared to argue that by some means the content of his obligations as recorded in the order of 30 August 2001 was affected by the tribunal’s findings in the 11 February 2002 order. The submission appeared to be that the applicant was relieved from performing fixing in accordance with the MacGregor report by virtue of the fact that, some five months after the agreement, the tribunal found that the standard of fixing acceptable in the industry was that detailed by Monier in its specifications, a lesser standard than that required in the MacGregor report.
  1. 21.
    I find this to be a nonsensical proposition with no basis in law. I find that the terms of the mediation agreement are to be construed on the face of the agreement as they are capable of, without reference to other documents.

…

  1. 27.
    In all the circumstances of the matter I consider that the reason that this matter in fact advanced to hearing was the inability of the first and (second) respondents to reach agreement about the MacGregor report and the pressure applied by the first respondent to the applicant to comply with the terms of the agreement.
  1. 28.
    As indicated earlier, my view is that what the applicant had promised to do under the 30 August 2001 consent order was attend to tile fixing to a degree that has ultimately been found to be above that required by the industry standard. The applicant promised to do this under the agreement but in my view nothing that occurred subsequent to 30 August 2001 changed the content of that obligation.
  1. 29.
    However it is not possible to avoid the conclusion, as is urged upon me, that the first respondent has been agitating behind the scenes, in effect “stirring the pot”. While, in a formal sense, not a party for litigation it remained actively interested in the litigation, as evidenced by its appearances in this application after its release from that application. No doubt the first respondent was disappointed by the Authority’s decision not to issue a direction to rectify to the applicant consequent upon its lodgement of dispute notification form with the Authority. Had that occurred the first respondent could have “sat back” as it were and left the Authority to run the tile fixing argument with the applicant. This of course however did not eventuate, perhaps unexpectedly so given the contents of Mr MacGregor’s report and his known views on the subject of tile fixing. It seems likely that the Authority in the exercise of its discretion to issue a direction to rectify pursuant to s 72 of the Queensland Building Services Authority Act 1991 … had regard to the existence of the compromise effected between the applicant and the first respondent. This may well have been the proper course of the Authority to adopt.
  1. 30.
    For these reasons I consider that both the applicant and first respondent ought bear responsibility in relation to the third respondent’s costs.

Mrs Roney then made the orders for costs against which this appeal is brought. 

  1. [14]
    In short, the appellant had consented to orders to undertake the tile fixing in terms of Mr MacGregor’s reports. Then, as a consequence of further evidence the Tribunal was persuaded that Mr MacGregor’s conclusions were wrong, the submissions from the second respondent about the tile fixing which had been performed were correct, and the appellant was absolved of the obligation to do anything more under the MacGregor report.
  1. [15]
    The appellant contends that in those circumstances the apportionment of costs was unfair and he should have been absolved of any costs order or the proportions should have been reversed so that the first respondent paid two-thirds, rather than one-third of the second respondent’s costs, and he paid the other third.
  1. [16]
    At the hearing of this appeal the appellant sought to adduce new evidence, by affidavit, about the circumstances in which the consent orders were made and his state of mind at that time and up to and including the hearing of 11 February 2002. The discretion to allow fresh evidence arises under s 92(4) but new evidence should only be permitted if the circumstances in which it is sought to be adduced conform with established principles[3].  No reason is advanced from which it could be inferred the evidence could not have been presented at the original hearing.  Further, as the evidence goes purely to the appellant’s state of mind and he consented to the orders, it seems highly improbable it would have had an important, or indeed any impact upon Mrs Roney’s decision. 
  1. [17]
    The Tribunal’s general power to award costs appears in s 61 of the Act:

61General power of tribunal to award costs

  1. (1)
    In a proceeding, the tribunal may award the costs it considers appropriate on -
  1. (a)
    the application of a party to the proceeding; or
  1. (b)
    its own initiative.
  1. (2)
    The costs the tribunal may award may be awarded at any stage of the proceeding or after the proceeding has ended.
  1. (3)
    If the tribunal awards costs during a proceeding, the tribunal may order that the costs not be assessed until the proceeding ends.
  1. (4)
    in deciding whether to award costs, and the amount of the costs, the tribunal may have regard to the following -
  1. (a)
    the outcome of the proceeding;
  1. (b)
    the conduct of the parties to the proceeding before and during the proceeding;
  1. (c)
    the nature and complexity of the proceeding;
  1. (d)
    the relative strengths of the claims made by each of the parties to the proceeding;
  1. (e)
    any contravention of the Queensland Building Services Authority Act 1991, the Domestic Building Contracts Act 2000 or any other Act by a party to the proceeding;
  1. (f)
    for a proceeding to which the authority is a party, whether the other party to the proceeding was afforded natural justice by the authority;
  1. (g)
    anything else the tribunal considers relevant.
  1. (5)
    A party to a proceeding is not entitled to costs merely because –
  1. (a)
    the party was the beneficiary of an order of the tribunal; or
  1. (b)
    the party was legally represented at the proceeding.
  1. (6)
    The power of the tribunal to award costs under this section is in addition to the tribunal’s power to award costs under another provision of this or another Act.
  1. [18]
    The appellant must show that the Tribunal has acted on a wrong principle; allowed extraneous or irrelevant matters to guide or influence it; has mistaken the facts; or, has failed to take into account some material consideration. These principles are taken from the High Court decision in House v The King (1936) C55 CLR 499 at 504-5, and, as Skoien SJDC said in Pointon (supra), guide the court in appeals of this kind.
  1. [19]
    The appellant contends, firstly, that the Tribunal has failed to take into account and/or give sufficient weight to the outcome of the proceedings. In particular it is submitted that the Member’s final order vindicated the appellant’s consistent position – that the tiles had been properly affixed and nothing further needed to be done. It is clear however from paras 20 and 28 of the reasons, set out earlier, that Mrs Roney did take all of these matters into account and the appellant was unable to point to anything suggesting she failed to properly relate the history of the proceedings or give sufficient weight to the events which had occurred in the course of it. The reasons also show that the Member understood, and acknowledged and considered the appellant’s submissions about these matters.
  1. [20]
    It is also contended that the Tribunal should not have ordered the appellant to pay the second respondent’s costs in the face of the finding that in the agreement of 30 August 2001 the appellant had agreed to perform a standard of tile fixing above that required by the “industry standard”. Again, however, the reasons make it clear that Mrs Roney took into account the fact of the consent order (and that it was, ultimately, found to be based upon a fallacious opinion) but that does not lead to an automatic conclusion that her discretion misfired. All relevant matters were fully considered by the Tribunal. The concurrent findings made about the first respondent’s conduct make it clear Mrs Roney was anxious to ensure that all relevant factors were considered and given appropriate weight in the course of the exercise of her discretion.
  1. [21]
    It was also submitted that the appellant had, in the course of the proceedings, been no less successful than the second respondent and the Tribunal’s reasons quote, with apparent acceptance, submissions made by that respondent in support of its application for costs. Again, however, those submissions were considered in the context of the history of the matter including, in particular, the appellant’s motivation for continuing the litigation.
  1. [22]
    It was argued for the appellant, too, that the Tribunal’s conclusion that the opinions of Mr MacGregor should not, ultimately, be accepted must have been given insufficient weight. The submission has to be considered in light of the fact that Mrs Roney noted Mr MacGregor’s views were not without merit, and in the frequent context, in building litigation, of disagreement between experts. The only unusual element here is that the appellant chose to compromise the proceedings with the first respondent before Mr MacGregor’s evidence was tested by hearing in the Tribunal.  That conduct does not, however, constitute evidence of any improper exercise of a discretion by the Tribunal and, again, references to it in the Decision make it clear it was taken into account.
  1. [23]
    The appellant’s further submission is that the Tribunal was motivated by irrelevant considerations or erroneous factual findings unsupported by the weight of evidence. First, it is contended that Mrs Roney was wrong to accept a submission that the appellant was motivated to continue the litigation with Monier “in order ultimately to have its position with the Authority vindicated”.  Specific mention of this contention appears at para 14 of the Decision and, at para 15, Mrs Roney went on to consider the details of the matter “…to fully comprehend what may have been the motives of the applicant …”.  It is clear she was satisfied the appellant did have a motive and she was entitled to infer a conclusion to that effect from the material she reviewed.
  1. [24]
    Secondly, paras 23-27 of the reasons show the Member considered these matters in the light of, and giving obvious weight to, the first respondent’s ongoing agitation behind the scenes. The appellant contends that a finding of that kind, adverse to the first respondent, must mitigate his own culpability (as it should be reflected in the costs order) but it is very clear the Tribunal, again, did not overlook any relevant matter in a way suggesting an inappropriate exercise of the discretion.
  1. [25]
    Finally it is submitted that in paras 20 and 21 of her Reasons Mrs Roney erred in law – presumably, by her finding that the Decision of 11 February 2002 did not affect the earlier Decision of 30 August 2001 which had been made by consent. That issue was, however, addressed and traversed in paras 20 and 21 of the reasons and no error is apparent there. Mrs Roney simply found that the appellant could not reasonably submit that he was forever relieved from performing his obligations under the mediation agreement or the order of 30 August 2001 simply because, almost five months later, a Tribunal found his consent to that order was superfluous, in the sense that the Tribunal’s later decision meant he was relieved of the obligation. No appeal has ever been brought from the order of 30 August 2001.
  1. [26]
    The appellant’s complaint is in truth that he ought not to have been ordered to pay two-thirds of the second respondent’s costs or indeed any of them in circumstances where he consented to an order which imposed obligations upon him but, as it transpired some considerable time later, the Tribunal would not ultimately have ordered him to perform the work he had agreed to do. It is clear the Tribunal took the view that his own acts, including his consent to those orders in 2001 were a major element in the incurring of costs by the parties to the proceedings and that, weighed in the balance with the first respondent’s culpability for those costs, the appellant should bear the greater part. Nothing in the appellant’s submissions shows any error of the relevant kind by the Tribunal and his arguments fall far short of persuading me that Mrs Roney was clearly wrong.
  1. [27]
    The appeal is dismissed. The second respondent’s presence at the appeal was, essentially, a formality but it had been served. In those circumstances the costs of the first and second respondents of and incidental to the appeal should be paid by the appellant, assessed on the standard basis.

Footnotes

[1]Pingel v R & R Leach Pty Ltd & Ors (2002) QCA 275

[2]Budlex v Hogue (2002) QDC 260; Northbuild Construction Pty Ltd v McGrath Corporation Pty Ltd (2002) QDC 202

[3]Brisbane City Council v Mainsel Investments Pty Ltd (1989) 2 Qd R 204; Clarke v Japan Machines (Australia) Pty Ltd (1984) 1 Qd R 404

Close

Editorial Notes

  • Published Case Name:

    Mitchell v The Body Corporate of Paloma

  • Shortened Case Name:

    Mitchell v The Body Corporate of Paloma

  • MNC:

    [2004] QDC 11

  • Court:

    QDC

  • Judge(s):

    Wilson DCJ

  • Date:

    09 Jan 2004

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
Brisbane City Council v Mainsel Investments Pty Ltd [1989] 2 Qd R 204
2 citations
Jump To
Cite 1 - [1989] 2 Qd R 204
Cite 2 - [1989] 2 Qd R 204
Budlex v Hogue [2002] QDC 260
2 citations
Jump To
Cite 1 - [2002] QDC 260
Cite 2 - [2002] QDC 260
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
2 citations
Jump To
Cite 1 - [1984] 1 Qd R 404
Cite 2 - [1984] 1 Qd R 404
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Northbuild Construction Pty Ltd v McGrath Corporation Pty Ltd [2002] QDC 202
2 citations
Jump To
Cite 1 - [2002] QDC 202
Cite 2 - [2002] QDC 202
Pingel v R & R Leach Pty Ltd[2003] 1 Qd R 533; [2002] QCA 275
2 citations
Jump To
Cite 1 - [2002] QCA 275
Cite 2 - [2002] QCA 275
Pointon v Redcliffe Demolitions Pty Ltd [2002] QDC 131
3 citations
Jump To
Cite 1 - [2002] QDC 131
Cite 2 - [2002] QDC 131
Cite 3 - [2002] QDC 131
Queensland Building Services Authority v Wyatt [2002] QDC 326
2 citations
Jump To
Cite 1 - [2002] QDC 326
Cite 2 - [2002] QDC 326
State Rail Authority (New South Wales) v Earthline Constructions Pty Ltd (1999) 74 ALJR 306
1 citation
Jump To
Cite 1 - (1999) 74 ALJR 306
Warren v Coombes (1979) 142 CLR 531
1 citation
Jump To
Cite 1 - (1979) 142 CLR 531

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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