David Berry & Associates Pty Ltd v Brilman

[2011] QCAT 518

CITATION:	David Berry & Associates Pty Ltd v Brilman [2011] QCAT 518
PARTIES:	David Berry & Associates Pty Ltd ACN 109 298 973 (Applicant)
v
Frederick John Brilman (Respondent)

APPLICATION NUMBER:   BD472-07

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 28 October 2011

DELIVERED AT: Brisbane

ORDERS MADE:      1.    Each party to pay their own costs.

CATCHWORDS: 

Costs – where both parties partially successful – exercise of discretion – interests of justice do not warrant a costs order in favour of the applicant

Commercial and Consumer Tribunal Act2003, s 70

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. On 27 November 2009 the former Commercial and Consumer Tribunal ordered that the respondent pay to the applicant $26,377.00.  The order was made after a hearing in which the applicant initially claimed $53,895.00 from the respondent for monies owing under a building contract.  At the hearing the claim was reduced to $45,008.00.  The applicant accepted that the respondent was entitled to a credit of $8,887.00.

1. The respondent claimed $98,165.10 for the cost of rectification work as a result of defective building work carried out by the applicant. 

1. The respondent was partially successful by reducing the applicant’s claim to $18,895.  That sum, together with interest, resulted in the order in the applicant’s favour.

1. The applicant now applies for costs of the proceeding.  Because this application was heard and determined in the former Tribunal, the cost provisions of the Commercial and Consumer Tribunal Act 2003 are applicable. Section 70 specifically provides that the purpose of the division on costs is that the parties have to pay their own costs unless the interests of justice require otherwise. In determining that question, one has regard to the outcome of the proceeding, the conduct of the parties, the nature and complexity of the proceeding and the relevant strengths of the claims made by each of the parties to the proceeding.

1. Here both parties were partially successful in their respective claims.  Although the respondent did not recover the full amount of the counter claim, and it was reduced significantly, he was still partially successful.  On the other hand, the applicant’s claim was reduced from $53,895 down to $18,895. 

1. In my opinion, the parties had equal success in the litigation.

1. There is a complaint about Mr Brilman’s conduct prior to the proceeding.  Observations were made in the reasons for the decision querying why the some of the money due under contract was not paid to the applicant.  However, this was a typical building dispute where the homeowner and the builder fell into dispute and resolution of the claim and counter claim by mutual negotiation was not possible.  It required the Tribunal to make a decision to finally determine their respective claims. 

1. In my view, the conduct of Mr Brilman was not such which warranted an order for costs against him.

1. Like all building disputes, the case had its complexities particularly with respect to the engineering detail.  Having said that, it was a typical building case where there was a claim for monies due and payable and a counter claim for defective building work.  Overall, there was nothing particularly complex about the matters before the Tribunal.

[10]  The conclusions reached indicate that both parties had legitimate claims.  Although a large part of the counter claim was not accepted, it was found that the builder had engaged in the defective building work for which damages were awarded.  The relevant strengths of either party’s claim would not, in the interests of justice, warrant a costs order.

[11] In my view, the appropriate order, having regard to section 70 is that each party should pay their own costs.