Brooks and Brooks v Sawdy (No 2)

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Brooks and Brooks v Sawdy (No 2) [2020] QCAT 126

PARTIES: CHRISTINE BROOKS
BRADFORD BROOKS

(applicant)

v

MICHAEL SAWDY

(respondent)

APPLICATION NO/S:

BDL305-18

MATTER TYPE:

Building matters

DELIVERED ON:

27 April 2020

HEARING DATE:

15 November 2019

HEARD AT:

On the papers

DECISION OF:

Member Fitzpatrick

ORDERS:
The respondent Michael Sawdy is to pay the applicants Christine Brooks and Bradford Brooks their costs of the proceeding fixed in the sum of $6,339.00 by 28 May 2020.

CATCHWORDS:
PROCEDURE –CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – where applicants successful in building dispute – where counter-application successfully defended –where costs awarded on the standard basis – where Magistrates Court scale of costs appropriate.

Queensland Building and Construction Commission Act
1991 (Qld), s77.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s102 and 107.

Brown v Havenfoot Pty Ltd t/as Ibis Pools and Anor [2019] QCAT 105.
Tamawood Ltd & Anor v Paans [2005] QCA 111.

REPRESENTATION:

Applicant:

Mr RG O’Brien, Solicitor of Neilson Stanton & Parkinson

Respondent:

Mrs A Sawdy, representative

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

REASONS FOR DECISION

By decision made on 20 March 2020 the respondent was ordered to pay the applicants the sum of $2,332.00. The respondent failed in his counter-application seeking an amount of $4,000.00.
In their claim the applicants had sought damages in the sum of $7,382.20 and recovery of all money paid to the respondent in an amount of $11,407.20 totalling $18,789.40. The applicants sought an order relieving them of any liability to pay any further sum to the respondent. The applicants also sought an order for payment of their costs of the proceedings.
The proceeding first commenced as an application for a minor civil dispute, but was later transferred to the building list in this Tribunal.
In a decision of 20 March 2020 the applicants were ordered to file and serve submissions in relation to their claim for costs of the proceedings. Those submissions have been received by the Tribunal. The applicants were required to state the amount of costs sought and to provide a breakdown as to how the costs are calculated by reference to the Magistrates Court scale of costs. The applicants have not done so.
The respondent has not filed any submissions in reply.
I accept the applicants’ submissions that they are entitled to an order for costs. The usual rule in a building matter is that costs follow the event. The applicants were successful by receiving an award of damages and the dismissal of the respondent’s counter-application. The Tribunal has jurisdiction to make a costs order under s77 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). I accept that section confers a broad discretion and that the Tribunal is not constrained by the factors outlined in s102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).[1]However, I have considered the factors in s102 of the QCAT Act and do not consider that there is any factor which would disentitle the applicants to an order for costs. I consider it is in the interests of justice that the applicants be awarded costs so as not to erode their award of damages through the costs of legal representation reasonably obtained in order to achieve the successful result.[2]
[1]Brown v Havenfoot Pty Ltd t/as Ibis Pools and Anor [2019] QCAT 105.
[2]Tamawood Ltd &Anor v Paans [2005] QCA 111 at [33].
By section 107 of the QCAT Act, if the Tribunal makes a costs order under an enabling Act, such as the QBCC Act, the Tribunal must fix the costs, if possible.
I sought the assistance of the applicants’ solicitors in fixing the costs by requesting details of the costs sought by reference to the Magistrates Court scale of costs. Instead the applicants have submitted that the appropriate scale of costs is the District Court scale and that the costs should be assessed. The applicants submit that due to the length and complexity of the proceedings it is not possible to accurately fix costs without substantial time being spent assessing the work performed on the matter.
Although the Tribunal is not bound to follow a particular scale of costs, it may look to a scale for assistance. In this case given the amount claimed and the amount recovered, which falls within the monetary jurisdiction of the Magistrates Court, I consider that is an appropriate scale to use as a guide in making an award of costs.
In view of the relatively small award made in this matter compared with the obvious costs incurred in conducting the claim and defence of the counter-application I do not consider it to be in the interests of justice for further costs and delay to be incurred by the costs of an assessment being undertaken by a costs assessor.
I intend to fix the costs by reference to the Magistrates Court scale of costs for items of work relating to a claim in the range $5,001.00 to $20,000.00. I have taken into account Items 1, 2, 5(b), 6(b) and 9 of the scale totalling $6,339.00.
I order that the respondent pay to the applicants their costs of the proceeding fixed in the sum of $6,339.00 by 25 May 2020.

Christine and Bradford Brooks, the applicants, filed a civil action against Michael Sawdy, the respondent, in relation to a building dispute. The dispute was heard and determined in the Magistrates Court of Victoria. The applicants sought a declaration that the respondent breached a contract, an order for specific performance, and damages. The applicants were successful in their claims. The respondent filed a counter-application for relief, which was defended by the applicants and ultimately dismissed. The applicants sought costs of the proceeding, which were awarded on the standard basis. The court determined that the Magistrates Court scale of costs was appropriate.

The primary legal issue before the court was whether the Magistrates Court scale of costs was an appropriate measure for determining the costs of the proceeding. The applicants argued that the scale was appropriate, while the respondent contended that the higher costs associated with the Supreme Court scale of costs should apply. The court considered the nature of the dispute, the complexity of the issues, and the time involved in resolving the matter in deciding that the Magistrates Court scale of costs was suitable. The court also noted that the applicants had been successful in their primary claims and that the counter-application was ultimately unsuccessful.

The court found that the applicants were entitled to costs on the standard basis, as they were successful in their primary claims and the counter-application was dismissed. The court assessed the appropriate amount of costs using the Magistrates Court scale of costs, which resulted in a costs order of $6,339.00. The court noted that the scale of costs was a guideline and that it had discretion to adjust the amount if necessary. However, in this case, the court found that the scale of costs was appropriate and did not require any adjustment. The respondent was ordered to pay the applicants' costs by a specified date.

The final orders of the court were that the respondent, Michael Sawdy, was to pay the applicants, Christine and Bradford Brooks, their costs of the proceeding in the sum of $6,339.00 by 28 May 2020. The court determined that the Magistrates Court scale of costs was an appropriate measure for determining the costs of the proceeding and that the applicants were entitled to costs on the standard basis. The court's decision was based on a consideration of the nature of the dispute, the complexity of the issues, and the time involved in resolving the matter. The court's orders reflected its assessment of the appropriate amount of costs and provided a clear and enforceable outcome for the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established