| CITATION: | Barry Pitt Constructions Pty Ltd v Smith & Anor [2015] QCAT 526 |
| PARTIES: | Barry Pitt Constructions Pty Ltd (Applicant) |
| V | |
| Shane Harold Smith Agnieska Smith (Respondent) |
| APPLICATION NUMBER: | BDL037-13 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Hughes |
| DELIVERED ON: | 23 December 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Shane Harold Smith and Agnieska Smith are to pay to Barry Pitt Constructions Pty Ltd the sum of $3,797.25 by way of interest by 27 January 2016. 2. Shane Harold Smith and Agnieska Smith are to pay to Barry Pitt Constructions Pty Ltd, within 28 days of agreement or assessment as applicable, its costs of: (a) the application (including their remission by the Appeal Tribunal by its order dated 9 December 2014 in APL085-14) on an indemnity basis calculated on the District Court Scale, to be agreed, or absent agreement to be assessed by Hickey & Garrett Legal Costs Assessors, Level 21, 141 Queen Street, Brisbane; and (b) any assessment. |
| CATCHWORDS: | BUILDING DISPUTE – INTEREST – where liquidated claim for progress payments – where Tribunal may award interest at rate specified by contract – where no basis to award interest for adjustments and variations - COSTS – where general rule that successful party is entitled to costs in building dispute – where essential element of counter-claim not proven – where counter-claim dismissed in entirety – where Tribunal awarded applicant full amount of claim – where applicant wholly successful - whether indemnity costs to be awarded – where parties contractually agreed on basis to recover costs and therefore appropriate to enforce terms of contract to recover costs on ‘solicitor and own client’ or indemnity basis Civil Proceedings Act 2011, ss 5, 58, 59 A L Builders Pty Ltd v. Fatseas (No. 2) [2014] QCATA 319 |
APPEARANCES:
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
What is this Application about?
Barry Pitt Constructions Pty Ltd successfully recovered $74,431.50 for building work done for Shane…
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- AGLC
- Barry Pitt Constructions Pty Ltd v Smith [2015] QCAT 526
- Case
- [2015] QCAT 526
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Tribunal were whether the applicants were entitled to interest on the liquidated damages for the progress payments and whether the applicants were entitled to indemnity costs as the wholly successful party. The respondents argued that the applicants were not entitled to interest for adjustments and variations and that the applicants were not entitled to indemnity costs as they had not proven an essential element of their counter-claim.
The Tribunal found that the applicants were entitled to interest on the liquidated damages for the progress payments as the contract allowed for the award of interest at a specified rate. However, the Tribunal held that there was no basis to award interest for adjustments and variations. Regarding costs, the Tribunal noted that generally, the successful party in a building dispute is entitled to costs. However, as the applicants' counter-claim was dismissed in its entirety, and they were wholly successful, the Tribunal held that it was appropriate to enforce the terms of the contract to recover costs on an indemnity basis. This decision was based on the contractual agreement between the parties regarding the recovery of costs.
The Tribunal ordered that Shane Harold Smith and Agnieska Smith pay Barry Pitt Constructions Pty Ltd $3,797.25 by way of interest by 27 January 2016. Additionally, the Tribunal ordered that the respondents pay the applicants' costs of the application on an indemnity basis calculated on the District Court Scale, to be agreed, or absent agreement to be assessed by Hickey & Garrett Legal Costs Assessors.
Orders
Orders of the court
1. Shane Harold Smith and Agnieska Smith are to pay to Barry Pitt Constructions Pty Ltd the sum of $3,797.25 by way of interest by 27 January 2016.
2. Shane Harold Smith and Agnieska Smith are to pay to Barry Pitt Constructions Pty Ltd, within 28 days of agreement or assessment as applicable, its costs of:
(a) the application (including their remission by the Appeal Tribunal by its order dated 9 December 2014 in APL085-14) on an indemnity basis calculated on the District Court Scale, to be agreed, or absent agreement to be assessed by Hickey & Garrett Legal Costs Assessors, Level 21, 141 Queen Street, Brisbane; and
(b) any assessment.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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