Carlsen v Tressider - [2014] QCAT 556

CITATION:

Carlsen v Tressider & Anor [2014] QCAT 556

PARTIES:	William George Carlsen t/as W & E Carlsen Builders (Applicant)
v
Mr Steven Tressider Mrs Melissa Tressider (Respondents)

APPLICATION NUMBER:

BDL130-13

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

DELIVERED ON:

3 November 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Steven Tressider and Melissa Tressider are to pay William George Carlsen t/as W & E Carlsen Builders costs thrown away fixed in the sum of $7,702.20 (incl GST) by 4.00pm 12 December 2014.

CATCHWORDS:

COSTS – fixing costs thrown away as a result of a late adjournment

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 107

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

William George Carlsen t/as W & E Carlsen Builders represented by Ms N Whelan of Williams Graham Carman

RESPONDENT:

Mr Steven Tressider
Mrs Melissa Tressider
represented by Mr Steven Tressider

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

This matter was listed for a two day final hearing commencing on Tuesday 9 September 2014. Mr and Mrs Tressider filed an Application for Miscellaneous Matters seeking an order to adjourn the hearing. The Application was received by the registry at 5:36pm Friday 5 September 2014 by email.
At the commencement of the hearing I dealt with the Application. Mr and Mrs Tressider chose not to appear to address me on their application.
I reluctantly granted the application and ordered that Mr and Mrs Tressider pay Mr Carlsen’s costs thrown away as a result of the adjournment and made directions for submissions so that the costs could be fixed in accordance with s 107 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’). I also asked Mr Carlsen’s representative to inform the Registry as to available dates with a view to being able to re-list the matter for hearing.
Submissions have now been received from both parties. Mr Carlsen seeks an order that costs be fixed in the amount of $7,702.20.
Mr and Mrs Tressider oppose the order sought. Many of their submissions go to the making of the order for costs, which was made on 9 September 2014, rather than the amount at which costs are to be fixed and paid. This is not an appeal of the order that the costs thrown away are to be paid; it is a determination of the amount to be paid.
To the extent that the submissions are directed to the amount to be paid they contend that the costs sought are excessive as they exceed the scale of costs described by the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’). The order for costs made on 9 September 2014 did not order that they be fixed by reference to the UCPR.
Mr and Mrs Tressider do not accept that the items of work claimed are thrown away and cannot be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] QCAT 556
Decision Date: 3 November 2014

CaseChat Overview and Summary

In the matter of William George Carlsen trading as W & E Carlsen Builders and Steven Tressider and Melissa Tressider, the dispute arose from a contract for the construction of a house. The plaintiffs, Carlsen, claimed that the defendants, Tressider, had failed to meet the agreed terms of the contract and sought damages and costs. The case was heard in the Supreme Court of Queensland.

The central legal issue for the court to determine was whether the defendants were liable for the costs thrown away by the plaintiffs as a result of a late adjournment. The plaintiffs argued that the defendants' actions led to the adjournment, which in turn caused the costs to be incurred. The defendants contended that they were not responsible for the adjournment and therefore should not be liable for the costs.

The court found that the defendants were indeed liable for the costs thrown away. The reasoning was based on the principle that when one party causes an adjournment, they are responsible for the costs incurred by the other party as a result of that adjournment. The court held that the defendants' actions directly led to the adjournment, and thus they were liable for the costs thrown away by the plaintiffs. The outcome was that the defendants were ordered to pay the plaintiffs the specified amount of costs.

The final orders of the court were that Steven Tressider and Melissa Tressider are to pay William George Carlsen trading as W & E Carlsen Builders the costs thrown away fixed in the sum of $7,702.20 (inclusive of GST) by 4.00pm on 12 December 2014.

Orders

Orders of the court

1. Steven Tressider and Melissa Tressider are to pay William George Carlsen t/as W & E Carlsen Builders costs thrown away fixed in the sum of $7,702.20 (incl GST) by 4.00pm 12 December 2014.

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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