Feldis Holdings Trading as PGS Constructions v Tweddell

[2013] QCAT 271

CITATION: Feldis Holdings Trading as PGS Constructions v Tweddell & Anor [2013] QCAT 271

PARTIES:	Feldis Holdings Trading as PGS Constructions (Applicant)
v
Rebecca Jane Tweddell and James Hebuirn Tweddell (Respondents)

APPLICATION NUMBER: BDL228-11

MATTER TYPE: Building Matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Ann Fitzpatrick, Member

DELIVERED ON: 12 June 2013

DELIVERED AT: Brisbane

ORDERS MADE: No order as to costs in favour of the respondents in relation to the application or counter-application.

CATCHWORDS:

Costs of application and counter-application – exercise of discretion as to costs in the Tribunal.

Queensland Building Services Authority Act 1991, section 77(1)(h)
Queensland Civil and Administrative Tribunal Act 2009, section 102

Lyons v Dreamstarters Pty Ltd [2011] QCATA 142
Oshlak v Richmond River Council (1998) CLR 72
Togito Pty Ltd v Pioneer Investments (Aust) Pty Ltd & Ors (No2) [2011] QSC 21

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. On 12 April, 2013 a decision in this matter was handed down.  The applicant was successful in obtaining an order for payment of $38,457.29 from the respondents.  That amount resulted after offset of the sum of $8,148.44 awarded in favour of the respondents upon their counter-application.

2. Only the respondents were legally represented during this matter.

3. The respondents seek their costs on the basis that the applicant’s case only emerged in material filed one month before the hearing and in some particulars only during cross examination; the amount recovered was significantly less than the sum of $150,859.78 originally claimed and the respondents substantially succeeded in their defence of the claim.  The respondents say that the hearing was lengthy, tedious and extensive because of the need for lengthy cross examination to determine the evidence and then find photographs or other evidence in relation to the claim. By contrast, they say that their preparation for the hearing was diligent and detailed.

4. The respondents say that the hearing could have been avoided if the applicant had made a reasonable claim, supported by invoices and evidence of the work.

5. The respondents complain that if no costs order is made against the applicant, it will be rewarded for bringing an unmeritorious claim, involving failure to comply with the Domestic Building Contracts Act 2000 and for conducting the proceedings in an unreasonable way, whilst the applicant itself did not incur legal expenses.

6. The applicant has made no submissions in relation to costs and in particular has not responded to the claim by the respondents.

7. The respondents appear to seek their costs of the whole proceeding including the application and the counter-application. They did not make any distinction in their submissions and did not address their success in the counter-application as a ground for an award of costs in their favour with respect to the counter-application.

Considerations applicable to the awarding of costs

1. Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) provides that “other than as provided under the QCAT Act or an enabling Act,” each party to a proceeding must bear the party’s own costs for the proceeding.

2. This matter involved a building dispute.  The Tribunal draws it jurisdiction to deal with building disputes from the Queensland Building Services Authority Act 1991 (QBSA Act).

3. Section 77(1)(h) of the QBSA Act provides that the Tribunal “may award costs”, in proceedings arising out of a building dispute. Pursuant to section 7 of the QCAT Act, section 77(1)(h) of the QBSA Act modifies section 100 of the QCAT Act, so that section 77(1)(h) is read as part of the QCAT Act. Section 77(1)(h) does not provide guidance or prescription about the occasions for or conditions of exercise of the power to award costs.[1]

   [1] Lyons v Dreamstarters Pty Ltd [2011] QCATA 142.

4. Deputy President Kingham, in Lyons v Dreamstarters Pty Ltd [2011] QCATA 142 said that a jurisdiction given in general terms, such as the jurisdiction to award costs in s77(1)(h) of the QBSA Act, “allows the Tribunal to make an order as to costs that is justified in the circumstances.  It is a broad general discretion which must be exercised judicially, not upon irrelevant or extraneous considerations but upon facts connected with or leading up to the litigation.”[2]

   [2] Ibid at [33]

5. The general principle is that in the absence of special circumstances the court exercises its discretion to award costs to the successful party.[3] Given the outcome of the hearing the ordinary expectation would be that the applicant having succeeded in its claim (even though not entirely), would be awarded its costs of the proceedings.  As the applicant was not legally represented and has not sought costs, no such order will be made.

   [3] Oshlack v Richmond River Council (1998) 193 CLR 72.

6. I do not think that any special circumstances exist to reverse the general principle so as to award the respondents the costs of the proceedings.  Although the applicant did not succeed to the full extent of its claim, it nevertheless had a valid claim.  It was supported by evidence filed prior to the hearing, so that the respondents were not caught by surprise, although no doubt some of the evidence was provided later than they would have preferred. By the time of the hearing the parties were well organized with a Scott Schedule which formed the basis of the hearing. I do not consider that the applicant acted in a way that unnecessarily disadvantaged the respondent.[4]

   [4] Section 102 of the Queensland Civil and Administrative Tribunal Act 2009 provides that the Tribunal may make an order for costs if the Tribunal considers the interests of justice require it to make the order.  A relevant consideration is whether a party is acting in a way that unnecessarily disadvantages another party.

7. I reject the submissions of the respondents that they should be awarded the costs of the proceedings.

8. Following the general principle, the respondents having succeeded in their counter-application (even though not entirely), would be entitled to their costs of the counter-application, to the extent that the costs of the proceedings were increased by the counter-application.[5]

   [5] Togito Pty Ltd v Pioneer Investments (Aust) Pty Ltd (No2) [2011] QSC 21.

9. The respondents undertook extensive and thorough cross examination of Mr Stringer, which took up a substantial part of the hearing time. Matters relevant to the application were still being dealt with on the last day of the hearing.  The counter-application was largely dealt with on the last day.  The last day was also utilized by the parties to make submissions.  In these circumstances, I do not think the costs of the proceeding were increased by the counter-application.  Accordingly, in the exercise my discretion, I determine that there should be no order for costs in favour of the respondents with respect to the counter-application.

10. I make no order as to costs in favour of the respondent in relation to the application or the counter-application.