A L Builders Pty Ltd v Fatseas

CITATION: A L Builders Pty Ltd v Fatseas [2015] QCAT 273

PARTIES:	A L Builders Pty Ltd (Applicant)
v
Nicholas Fatseas and Tricia Fatseas (Respondents)

APPLICATION NUMBER: BDL302-12

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member King-Scott

DELIVERED ON: 10 July 2015

DELIVERED AT: Brisbane

ORDERS MADE:

The Applicant pay to the Respondents as agreed, or failing agreement within 28 days hereof, as assessed by Queensland Independent Costs Services, Costs Assessors:

[1]   The Respondents’ costs of the application on a standard basis, by reference to the District Court of Queensland Scale of Costs;

[2]   The Respondents’ costs of the Magistrates Court of Queensland at Brisbane proceeding being M10308/11 reserved to the Tribunal by order of the Magistrates Court of Queensland on 25 September 2012 on a standard basis on the Magistrates Court Scale of Costs;

[3]   The Respondents’ costs reserved by order of the Tribunal in proceedings made 21 March 2014 and 24 March 2014 on a standard basis by reference to the District Court of Queensland Scale of Costs;

[4]   Half of the Respondents’ costs of the counterclaim on a standard basis by reference to the District Court of Queensland Scale of Costs;

The assessed amounts to be paid within 28 days of delivery of such assessments.

CATCHWORDS:

BUILDING MATTERS - costs – building dispute – award of costs outside the usual rule of the Tribunal that each party bear their own costs – success on some issues ­– exercise of discretion

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. The decision in this matter was delivered on 8 May 2015.  I dismissed the Applicant/Builder’s application for $384,494.85. I allowed only $191,559.86 of the Respondent/Owners’ counterclaim of $1,697,630.80.[1] I directed the parties file their submissions as to costs.  Those submissions have been filed within the time limits directed.

   [1]There was also an unquantified claim for damages for distress and inconvenience that was disallowed.

2. The Applicant/Builder [for convenience I will hereinafter refer to the parties as Owner and Builder] failed in its application which was for moneys due under the contract, essentially on the basis of accounting errors.  It was apparent on the material that the Owners had paid all of the amounts outstanding and more.

3. A significant amount of time was spent on the issue of whether the contract between the parties was a fixed price contract as alleged by the Owners, or a costs plus contract as alleged by the Builder.  On this issue, I found for the Builder, but it was in a sense a pyrrhic victory, as it recovered nothing. 

4. On the other hand, a substantial part of the counterclaim which I disallowed may have been recoverable had I found it was a fixed price contract. 

5. It was agreed by all parties that the matter was a complex and difficult building dispute.  It certainly…