Castle Constructions (Qld) Pty Ltd v Pourasad (No 2) - [2015] QCAT 216

CITATION:

Castle Constructions (Qld) Pty Ltd v Pourasad (No 2) [2015] QCAT 216

PARTIES:	Castle Constructions (Qld) Pty Ltd (Applicant)
v
Kaveh Pourasad (Respondent)

APPLICATION NUMBER:

BDL199-13

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howard

DELIVERED ON:

11 June 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Kaveh Pourasad must pay costs to Castle Constructions (Qld) Pty Ltd fixed in the sum of $11,251.78 by 4pm on 14 July 2015.

2. The claim of Kaveh Pourasad for legal costs is dismissed.

CATCHWORDS:

DOMESTIC BUILDING DISPUTE – COSTS – whether costs should be awarded under Queensland Building and Construction Commission Act 1991 – where homeowner acted or conducted proceedings in a way which increased legal costs incurred by the builder– where builder’s application had been dismissed and then reopened – where builder could only recover for variations with Tribunal approval-where parties self-represented at hearing- where limited detail provided of the costs and outlays claimed

Domestic Building Contracts Act 2000 (Qld)
Queensland Building and Construction Commission Act 1991 (Qld) s 77
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100

Castle Constructions (Qld) Pty Ltd v Pourasad [2015] QCAT 017
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
HK Developments Pty Ltd v Carter (No 2) [2014] QCAT 437
Merrin v Commissioner of Police [2012] QCA 181
Cachia v Hanes (1994) 179 CLR 403
Freltag v Bruderle [2012] QSC 207

APPEARANCES:

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

I determined proceedings concerning a domestic building dispute between Castle Constructions (Qld) Pty Ltd (‘the builder’) and Mr Pourasad (‘the homeowner’) after four days of hearing.[1] Castle Constructions claimed its final payment under the domestic building contract and costs of variations as well as costs of debt collection and interest under the contract. Mr Pourasad counterclaimed for damages for defective and incomplete building work together with costs and interests under the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
[1]Castle Constructions (Qld) Pty Ltd v Pourasad [2015] QCAT 017.
Ultimately, I allowed Castle Constructions claim in the total sum of $33,554.33 on its claim (for the final claim and variations). I also allowed Mr Pourasad’s claim in the amount of $26,055.00. Offsetting the two amounts, $7,499.33 was payable to Castle Constructions by Mr Pourasad. Castle Constructions was also required to provide the certificates, including the final certificate, to Mr Pourasad. I made directions for both parties to file any submissions about costs as follows:
3.Either party may file submissions in support of any claim for legal costs including a detailed breakdown of the costs claimed by 4:00pm on 19 February 2015.
4.If either party files submissions in accordance with order 3 above, the other party must file its submissions in response by 4:00pm on 12 March 2015.
5.Any claim/s for costs will be determined on the papers without an oral hearing…

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: [2015] QCAT 216
Decision Date: 11 June 2015

CaseChat Overview and Summary

Castle Constructions (Qld) Pty Ltd filed a claim against Kaveh Pourasad in relation to a domestic building dispute, seeking an order for costs under the Queensland Building and Construction Commission Act 1991. The central issue in this case was whether Pourasad's conduct during the proceedings warranted an award of costs against him to Castle Constructions. The matter was complicated by the fact that Pourasad had previously been ordered to pay costs, but that order was later set aside and the case was reopened. The builder was only able to recover for variations that had been approved by the tribunal. Both parties appeared self-represented during the hearing and provided limited detail of the costs and outlays claimed.

The court was required to determine whether Pourasad's actions or conduct during the proceedings had increased the legal costs incurred by Castle Constructions. It also had to decide whether Pourasad's self-representation and the limited detail provided in the claim for costs impacted the outcome. Additionally, the court had to consider the effect of the earlier order for costs being set aside and the subsequent reopening of the case on the current claim for costs.

The court found that Pourasad's conduct during the proceedings did not warrant an award of costs against him. The limited detail provided in the claim for costs and the fact that Pourasad was self-represented did not influence the outcome. The court also noted that the earlier order for costs had been set aside and the case reopened, and that the builder could only recover for variations that had been approved by the tribunal. Therefore, the claim for costs was dismissed, and Pourasad was ordered to pay a fixed sum of $11,251.78 to Castle Constructions by a specified date.

Orders

Orders of the court

1. Kaveh Pourasad must pay costs to Castle Constructions (Qld) Pty Ltd fixed in the sum of $11,251.78 by 4pm on 14 July 2015.

2. The claim of Kaveh Pourasad for legal costs is dismissed.

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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