Grasso v CMG Consulting Engineers Pty Ltd

[2012] QCATA 32

CITATION: Grasso & Anor v CMG Consulting Engineers Pty Ltd [2012] QCATA 32

PARTIES:	Steven Grasso Diane Grasso (Applicants/Appellants)
v
CMG Consulting Engineers Pty Ltd (Respondent)

APPLICATION NUMBER:   APL264-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 20 February 2012

DELIVERED AT: Brisbane

ORDERS MADE:      That the applicants Mr and Mrs Grasso pay the respondent CMG Consulting Engineers Pty Ltd $4,549.00 for its costs of and incidental to their failed application for leave to appeal.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – COSTS ORDER – BUILDING DISPUTE – where the Applicants made a failed application for leave to appeal – where the Respondents sought costs for the failed application for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009, s 32

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. This application concerns CMG’s application for costs arising out of Mr and Mrs Grasso’s failed application for leave to appeal the decision of a QCAT Member on 5 July 2011 which refused them leave to file an amended statement of claim in this building case.

1. The application for leave was determined on the papers and refused, with Reasons, on 16 September 2011. CMG sought an order for costs and on 23 November 2011 I determined, with Reasons, that the Grassos should pay CMG’s costs and, in light of s 107(1) of the QCAT Act, I also directed that the parties file and exchange submissions about the amount of costs. The parties have done so.

1. CMG’s submissions also claim costs of $2,077.50 for the failed application by Mr and Mrs Grasso to a QCAT Member on 25 May 2011 to amend their statement of claim.  It is said these costs should be resolved in the appeal, and not left to the Member who ultimately determines the proceeding itself.

1. As I pointed out in my decision of 23 November 2011, no order for costs was made by the learned Member in May, and it was unclear whether costs were sought.  It is now asserted, in submissions from the solicitor for Mr and Mrs Grasso, that CMG did seek costs in respect of that application but the Member made no order.  This uncertainty is, in itself, sufficient to cement my view that costs in the Tribunal itself in respect of that proceeding should not be determined by the Appeal Tribunal and, if CMG wishes to establish an entitlement to them, it should advise any arguments about that to the Member who determines the proceeding itself.

1. As to the costs of the failed application for leave to appeal, CMG seeks $4,549.00.  An affidavit from its solicitor contains particulars of that amount, the largest component of which is $2,500.00 for ‘general care and conduct’.  Mr and Mrs Grasso dispute that amount, and an affidavit from their solicitor swears that an experienced cost assessor, Mr Garrett, disputes the amount of that claim and says that, ‘…the appropriate amount for general care and conduct is a figure which represents an uplift of between 20 and 30% on the item charges, not an amount which represents an uplift of … 122%’.

1. The claim for the general care and conduct item of $2,500.00 is supported by CMG in submissions referring to the complexity of the appeal, the difficulty and novelty of the questions raised in it, its importance to CMG, and the time spent by its solicitor (said to be over 20 hours) researching and considering the relevant questions of law and fact.

1. That submission may be tested by reference to the Reasons in my decision to refuse a grant of leave to appeal, delivered on 16 September 2011.  Those Reasons show that the factual issues including, in particular, the history of expert reports and evidence in this long building case had a degree of complexity; and, that it was necessary to closely consider the nature and proper exercise of QCAT’s discretion to allow amendments in light of important High Court authority.

1. Those factors are persuasive that the matter did have a degree of complexity and difficulty.  I accept, too, that it involved matters of considerable importance to CMG.  In light of those matters, I am persuaded that the claim for $2,500.00 for general care and conduct is not inappropriate, or excessive.  It follows that the applicants should be ordered to pay the respondent’s costs, fixed at $4,549.

1. It will be ordered, then, that the applicants Mr and Mrs Grasso pay CMG $4,549.00 for its costs of and incidental to their failed application for leave to appeal.