Faulks v New World Constructions Pty Ltd

[2014] QCAT 242

CITATION: Faulks v New World Constructions Pty Ltd [2014] QCAT 242

PARTIES:	Richard Faulks Megan Faulks (Applicant/Appellant)
v
New World Constructions Pty Ltd (Respondent)

APPLICATION NUMBER: BDL173-12

MATTER TYPE: Building matter

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member King-Scott

DELIVERED ON: 3 June 2014

DELIVERED AT: Brisbane

ORDERS MADE:

The Respondent pay the Applicants’ costs fixed at $32,316.89 by 4pm on 27 June 2014.

CATCHWORDS:

PROCEDURE - COSTS – Discretionary matters affecting a decision toward costs

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

APPEARANCES and REPRESENTATION (if any):

APPLICANT: The Applicants were represented by Mr A West of Counsel instructed by Dale and Fallu.

RESPONDENT: The Respondent was represented by Mr B Hall of Counsel instructed by JKR Lawyers

REASONS FOR DECISION

1. The hearing of this building dispute took 3 days.  Both parties were represented by counsel. 

2. At the hearing the Applicant was substantially successful, although I dismissed the First and Second Applicant’s claim for general damages for inconvenience, distress and discomfort.  That claim was not particularised and very little evidence was led on the subject. 

3. Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that each party to a proceeding must bear its own costs for the proceeding unless otherwise provided under that Act or an enabling Act.

4. Section 102 permits the Tribunal to make an order requiring a party to a proceeding to pay all or the stated part of the costs of another party if the Tribunal considers the interests of justice require it to make that order. 

5. The Tribunal may have regard to the matters set out in s 102(3) in deciding whether to award costs.  They include the nature and complexity of the dispute, and whether a party to the proceeding has acted in a way that unnecessarily disadvantages another party to the proceeding.

6. The Applicant has applied for costs order.  It has filed submissions in support of that claim.  No submissions have been received from the Respondent.

7. This matter came on for hearing, initially, on 15 April 2013.  The Respondent sought an adjournment because it had not had time to confer with its Quantity Surveyor.  The adjournment was granted with an order that the costs thrown away be reserved.  The Respondent did not lead evidence from the Quantity Surveyor at the ultimate hearing.  Undoubtedly, the Applicant should recover those costs.

8. I am of the opinion that the matter was sufficiently complex to warrant not only legal representation but an award for costs.

9. The Tribunal should endeavour, where possible, to fix costs: see s 107 of the Act.

10. The Applicant’s submissions are supported by an itemised assessment of costs.  I am satisfied as to the reasonableness of those costs and I fix the costs comprising professional costs of $13,984.50 and outlays of $18,332.39.

11. The Tribunal orders the Respondent to pay the Applicants’ costs fixed at $32,316.89 by 4pm on 27 June 2014.