Harrison v Meehan

Case [2018] QCATA 191


QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Harrison & Anor v Meehan [2018] QCATA 191

PARTIES:

In APL273-15

KAREN HARRISON
(first applicant/appellant)

SCOTT HARRISON
(second applicant/appellant)

v

MICHAEL MEEHAN

(respondent)

In APL375-15

MICHAEL MEEHAN

(respondent/appellant)

v

KAREN HARRISON

(first applicant/respondent)

SCOTT HARRISON

(second applicant/respondent)

APPLICATION NOS:

APL273-15

APL375-15

ORIGINATING APPLICATION NO:

BDL120-14

MATTER TYPE:

Appeals

DELIVERED ON:

19 December 2018

HEARING DATE:

23 July 2018

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

Senior Member Guthrie

ORDERS:

1.          Karen & Scott Harrison must file in the Tribunal two (2) copies and give to Michael Meehan one (1) copy of further submissions limited to the application to dismiss filed in APL273-15 which submissions must not exceed two (2) pages in length, within twenty one (21) days of the date of this decision;

2.          Michael Meehan must file in the Tribunal two (2) copies and give to Karen & Scott Harrison one (1) copy of submissions in reply which submissions must not exceed two (2) pages in length, within twenty eight (28) days of the date of this decision;

3.          The Appeal Tribunal will make final orders in relation to costs in APL273-15 and APL375-15 after twenty eight (28) days from the date of this decision.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – where party legally represented in appeal – consideration of whether ‘interests of justice’ require making of order for costs – consideration of s 102(3) of Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(h)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102(1), s 135(4), s 138(5), s 142(3)(a)(iii)

Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1423
Hennessey Glass and Aluminium Pty Ltd v Watpac Australia Pty Ltd [2007] QDC 57
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
Olindaridge Pty Ltd & Wagner v Tracey [2015] QCATA 175
Salam & Anor v Henley Properties (QLD) Pty Ltd [2016] QCATA 98
Tamawood Ltd & Anor v Paans [2005] QCA 111

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

No appearance

REASONS FOR DECISION

  1. Mr Meehan undertook building work for Mr and Mrs Harrison. The parties fell into dispute. The Harrisons commenced a proceeding for a building dispute. In BDL120-14 the tribunal ordered that Mr Meehan pay to the Harrisons $54,740.68. There was no order as to costs.

  2. Both parties appealed the decision in BDL120-14, the Harrisons in proceeding APL273-15 and Mr Meehan in proceeding APL375-15. In APL273-15 the Appeal Tribunal allowed the appeal, ordered that the decision of the tribunal in BDL120-14 be set aside and ordered Mr Meehan pay to the Harrisons $26,015.99 plus interest.[1] The appeal in APL375-15 was also allowed.[2]

  3. The Harrisons appealed the decisions in APL273-15 and APL375-15 to the Court of Appeal where their application for leave to appeal was refused.[3]

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Details
AGLC
Harrison & Anor v Meehan [2018] QCATA 191
Case
[2018] QCATA 191
Decision Date

CaseChat Overview and Summary

In the matter of Harrison v Meehan, the appeals and subsequent proceedings before the Queensland Civil and Administrative Tribunal (QCAT) involved a dispute between the Harrisons and Mr Meehan concerning building works and damages. The initial tribunal decision found that the Harrisons were not in substantial breach when they terminated the contract, and Mr Meehan was not entitled to walk off the site. The Harrisons were successful in their claim for damages related to the completion of the building works. Mr Meehan subsequently appealed the tribunal's decision in two separate appeals, APL273-15 and APL375-15, and applied to correct the tribunal's decision. The appeals were heard and decided by the Appeal Tribunal.

The primary legal issues before the Appeal Tribunal were whether the tribunal's decision in the initial proceedings was correct and whether Mr Meehan was entitled to costs in the appeals and subsequent proceedings. The tribunal found that the initial tribunal had erred in not taking into consideration an amount payable by the Harrisons to Mr Meehan in assessing damages. The tribunal also found that the Harrisons were successful in their claim for damages, albeit to a modest extent, and that Mr Meehan was ordered to pay the Harrisons a specific amount.

In addressing the question of costs, the Appeal Tribunal considered the statutory framework governing costs in QCAT proceedings and the broad discretion available to the tribunal to order costs if the interests of justice require such an order. The tribunal found that the Harrisons had not been wholly successful in the appeals and that the costs of the appeals should be borne by the respective parties. The tribunal also found that the tribunal below was correct in not ordering the builder to pay costs in the initial proceedings as the Harrisons had pursued a claim for the completion of incomplete work based on the actual amounts they had paid for that work, without particularising the details of the actual completion works carried out and the amount paid by them to third parties.

The tribunal ordered the parties to file further submissions and set a timeline for the final orders in relation to costs in the appeals and subsequent proceedings. The tribunal found that the Harrisons were not wholly successful in the appeals and that the costs of the appeals should be borne by the respective parties. The tribunal also found that the tribunal below was correct in not ordering the builder to pay costs in the initial proceedings.

Orders

Orders of the court

1. Karen & Scott Harrison must file in the Tribunal two (2) copies and give to Michael Meehan one (1) copy of further submissions limited to the application to dismiss filed in APL273-15 which submissions must not exceed two (2) pages in length, within twenty one (21) days of the date of this decision;

2. Michael Meehan must file in the Tribunal two (2) copies and give to Karen & Scott Harrison one (1) copy of submissions in reply which submissions must not exceed two (2) pages in length, within twenty eight (28) days of the date of this decision;

3. The Appeal Tribunal will make final orders in relation to costs in APL273-15 and APL375-15 after twenty eight (28) days from the date of this decision.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is appropriate to examine a little more closely what the appeals in APL273-15 and APL375-15 were about. The decisions in APL273-15 and APL375-15 In APL273-15 the tribunal at first instance was found to have erred in concluding that the Harrisons unduly delayed in undertaking completion works. Leave to appeal was granted and the appeal conducted by way of a rehearing. It was not contested in the appeals that the tribunal at first instance had erred in not taking into consideration in assessing damages an amount payable under the contract by the Harrisons to Mr Meehan of $31,749.17. This error was the subject of the appeal by Mr Meehan in APL375-15. In conducting APL273-15 by way of rehearing, the ground of appeal in APL375-15 was also addressed. The Harrisons were successful, albeit to a modest extent, in APL273-15 with the assessed damages being increased by $3,024.47 (‘the primary decision’). In the final result, and addressing the ground of appeal in APL375-15, Mr Meehan was ordered to pay to the Harrisons $26,015.99.The application for reopening, correction, renewal or amendment – REO006-15 Following the decision in BDL120-14, Mr Meehan filed an application to correct the decision (proceeding REO006-15). Mr Meehan relied upon the same ground as identified subsequently in APL375-15. In REO006-15 Mr Meehan sought, in the alternative to a correction of the final decision, that the proceeding in BDL120-14 be reopened. The application in REO006-15 was filed on 8 July 2015. The Harrisons filed the application for leave to appeal or appeal in APL273-15 on 10 July 2015. A difficulty then arose for Mr Meehan. A party cannot make an application to correct a decision that is the subject of an appeal or an application for leave to appeal.[4] A party cannot make an application to reopen a proceeding in relation to a decision the subject of an appeal or an application for leave to appeal.[5] [4]QCAT Act, s 135(4).[5]Ibid, s 138(5). Mr Meehan subsequently applied to withdraw the application in REO006-15 and orders were made accordingly. Costs – the statutory framework Parties to proceedings in the tribunal must bear their own costs subject to the operation of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) or an enabling Act.[6] The tribunal may require a party to pay another party’s costs if the interests of justice require such an order.[7] [6]Ibid, s 100.[7]Ibid, s 102(1). The relevant enabling Act is the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). By s 77(3)(h) of the QBCC Act, the tribunal may award costs. The power to award costs under the QBCC Act applies in appeal tribunal proceedings.[8] [8]See Olindaridge Pty Ltd & Wagner v Tracey [2015] QCATA 175 followed in Pivovarova v Michelsen [2016] QCATA 45. See also Wharton v Duffy Constructions (QLD) Pty Ltd [2016] QCATA 12 followed in Lee Manson t/as Manson Homes v Brett & Anor [2018] QCATA 109. The discretion to order costs under s 77(3)(h) is a broad general one, which must be exercised judicially, not upon irrelevant or extraneous considerations but upon facts connected with or leading up to the litigation.[9][9]Lyons v Dreamstarter Pty Ltd [2011] QCATA 142.What do the parties say?

Ratio Decidendi

Legal Principle Established

In respect of APL374-15, Mr Meehan says that he has been wholly successful and that he should therefore have his costs of the appeal. Consideration We will consider the question of costs by reference to each of the proceedings. i.Costs in BDL120-14 The tribunal below dealt with the question of the costs in the following passages from the reasons:[68] The owners seek interest and costs. The only costs claimed are the account of their solicitors covering the solicitor’s involvement to terminate the contract, and the account of the expert they engaged, Mr Sim. [69] The owners’ application did not limit the claim against the builder to carpentry and supervision of other trades. They referred to the scope of work relied on by their expert, Mr Sim. But Mr Sim was not advised of the builder’s limited retainer by the owners. He understood it was the entire construction work set out in item 3 to the schedule to the contract. The owners therefore purported to claim far more than carpentry and supervision. In result, the builder was put to additional and unnecessary costs in preparing his case and understandably resisted the owners claim. In the circumstances, I conclude it would be unfair to order the builder to pay costs or interest. The tribunal below identified the issues for determination as: firstly, what were the terms of the contract between the parties; secondly, which party fell into breach and was the contract validly terminated; thirdly, what damages flowed from the breach. As to what the terms of the contact were, the tribunal found that the scope of the works agreed by the parties was for Mr Meehan to perform all carpentry work required on site, including the supply and fixing of external cladding and internal plasterboard, and for the builder to supervise other trades on site for an agreed fixed remuneration.[13] [13]Harrison v Meehan [2015] QCAT 205 at [32]. On the issues of breach and termination the tribunal found that the Harrisons were not in substantial breach when they served the notice of breach on Mr Meehan and that Mr Meehan was not entitled to walk off the site. The tribunal found that the Harrisons were entitled to terminate the contract and that the termination was in accordance with the requirements of the contract.[14][14]Ibid at [48] and [49]. The reasons for the primary decision set out the history of the dispute including the engagement by the Harrisons of the services of a building expert, Mr Sim, to assist with the quantification of their claim for damages. As we observed in the primary decision, Mr Sim prepared a report addressing the quantification of the costs of completing what the Harrisons asserted to be incomplete building work. The Harrisons had engaged another builder to complete the building works. However Mr Sim was not briefed by the Harrisons with details of the actual cost of the completion works nor was he instructed to cost the completion works by reference to the actual amount paid by the Harrisons to the new builder. In the primary decision it was found:It is clear that, from the outset, the Harrisons intended to, and did, pursue a claim for the completion of incomplete work based upon the actual amounts they had paid for that work to be undertaken. There was however no attempt by the Harrisons to particularise the details of the actual completion works carried out and the amount paid by them to third parties to complete the works by reference to each item of work. Despite reference to defective building work, the only evidence of such defective building work adduced by the Harrisons is limited to a number of photographs and six items said to be the defective work. No attempt was made by the Harrisons to quantify the cost of the rectification work.[15][15]Harrison and Anor v Meehan [2016] QCATA 197 at [31].