Faulks v. New World Constructions Pty Ltd (No. 2) - [2014] QCAT 329

CITATION:

Faulks v New World Constructions Pty Ltd (No 2) [2014] QCAT 329

PARTIES:	Mr Richard Faulks and Mrs Megan Faulks (Applicant)
v
New World Constructions Pty Ltd (Respondent)

APPLICATION NUMBER:

BDL173-12

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

DELIVERED ON:

17 July 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

The Respondent pay the Applicants’ costs fixed at $32,316.89 by 4pm on 15 August 2014.

CATCHWORDS:

PROCEDURE - APPLICATION TO REOPEN PROCEEDINGS - COSTS – Discretionary matters affecting a decision to award costs.

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

New World Constructions Pty Ltd (New World) has applied to reopen the proceeding brought by Mr and Mrs Faulks, in particular the order made in respect of costs, on 3 June 2014.
The application is brought pursuant to s 138 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”).
Pursuant to s 139, each party must be given an opportunity to make written submissions about the application. New World has filed written submissions in respect of the reopening. Mr and Mrs Faulks have declined to do so.
The Tribunal may grant a reopening only if it considers a reopening ground exists and the ground could be effectively or conveniently dealt with by reopening the proceeding: s 139 (4) of the Act.
The substantive hearing was heard on 1, 2 and 3 October 2013. The decision was reserved and delivered on 24 December 2013. The parties were invited to make written submissions in respect to costs which were to be filed.[1]
[1] Faulks v New World Constructions Pty Ltd [2013] QCAT 658 at [71].
The Faulks’ submissions were forwarded to the Tribunal and to me by email. New World’s solicitors forwarded its submissions to me directly by email but did not file a copy in the Tribunal, nor was a copy served on the Faulks’ solicitors. Counsel for Faulks therefore made reference in his submission that New World had not filed any submissions in respect to costs.
I therefore made the decision on 3 June 2014 without considering the submissions made by New World.
Although in the substantive reasons I invited the parties to file their submissions in the Tribunal in respect to costs, I had, at the end of the substantive hearing, invited the parties to send their written submissions directly to me. Therefore, the error by New World’s solicitors in not filing the submissions in respect to costs was caused in part by the procedure I had earlier invited them to follow. I now regret that I did so as it allows for confusion. However, I can appreciate that this led to a misunderstanding by New World’s solicitors and clearly an injustice has been done. Therefore, there is a ground to reopen the proceeding and…

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 329
Decision Date

CaseChat Overview and Summary

The case of Faulks v New World Constructions Pty Ltd (No. 2) was heard by the Queensland Civil and Administrative Tribunal, specifically by Member King-Scott. The applicants, Mr and Mrs Faulks, brought the case against New World Constructions Pty Ltd, the respondent, in a building matter. The applicants sought an order for the reopening of the proceedings, specifically regarding the costs order made on 3 June 2014. The respondent applied to reopen the proceedings under section 138 of the Queensland Civil and Administrative Tribunal Act 2009.

The legal issues before the court were whether a reopening ground existed for the proceedings and if so, whether it could be effectively dealt with by reopening. The court found that a reopening ground did exist, as the respondent's solicitors had not filed the written submissions in respect to costs as required. The error in not filing the submissions was partially caused by the procedure that the Tribunal had previously invited, which led to a misunderstanding by the respondent's solicitors and caused an injustice. The court was satisfied that the reopening ground could be effectively dealt with by re-hearing the costs issue.

After reconsidering the costs issue, the court found that the applicants, being the successful party, were entitled to their costs. The respondent did not dispute the quantum of the amount claimed by the applicants for costs. The court fixed the costs comprising professional costs of $13,984.50 and outlays of $18,332.39, totaling $32,316.89. The court ordered the respondent to pay the applicants' costs by 4pm on 15 August 2014.

The final orders of the court were that the respondent, New World Constructions Pty Ltd, pay the applicants, Mr and Mrs Faulks, costs fixed at $32,316.89 by 4pm on 15 August 2014.

Orders