Henley Properties (Qld) Pty Ltd v Salam

CITATION: Henley Properties (Qld) Pty Ltd v Salam [2015] QCAT 148

PARTIES:	Henley Properties (Qld) Pty Ltd (Applicant)
v
Muhammad Salam Seowmee Salam (Respondent)

APPLICATION NUMBER: BDL122-13

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member McLean Williams

DELIVERED ON: 1 May 2015

DELIVERED AT: Brisbane

ORDERS MADE: 1.    No order as to costs.

CATCHWORDS:

Costs – circumstances where applicant succeeded under s 84 of the Domestic Buildings Contract Act 2000 – further circumstances where building contract entitles builder to legal costs of attempted recovery of amounts under the building contract

Domestic Building Contracts Act 2000 (Qld), s 84
Queensland Building and Construction Commission Act 1991 (Qld), s 77
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 86

Tamawood Limited & Anor v Paans [2005] QCA 111
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142

APPEARANCES:

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

REPRESENTATIVES:

APPLICANT: Henley Properties (Qld) Pty Ltd represented by Gemma Twemlow, solicitor of Mills Oakley Lawyers

RESPONDENT: Muhammad Salam and Seowmee Salam represented by Russell Ensbey, solicitor of CBP Lawyers

REASONS FOR DECISION

1. On 3 September 2014, reasons for decision and orders were published in this matter. By the orders made on that date, the respondents were ordered to pay the applicant the sum of $17,779.53 within 21 days. This was nearly all of the total sum claimed by the applicant.

2. Further, the parties were invited on that occasion to make written submissions on the question of costs, and further or ancillary orders were made by me that the question of costs then be determined, on the papers. These now are my reasons for decision, in relation to the question of costs.

3. The original proceeding was a domestic building dispute in relation to the non-payment, by the respondents, of sums of money referrable to building variations which had been requested by the respondents and then agreed, in writing, between the parties during the course of construction. Although the variations had been reduced to writing, as is revealed in my reasons for decision in the primary dispute, the variation documents did not comply with the strict requirements of the Domestic Building Contracts Act 2000 (Qld) (‘DBC Act’).

4. Although the applicant commenced its claim before QCAT seeking payment of sums owing under a building contract, ultimately, the applicant only succeeded by reason of s 84(4) of the DBC Act, which enables QCAT to approve an amount, in defined circumstances, in the case of variations that do not comply with s 79, s 80, s 82 and s 83 of the DBC Act.

5. At the end of the reasons for decision in the primary dispute, I invited submissions in relation to the question of costs because of clause 31.1 in the building contract. Relevantly, clause 31.1 provided as follows:

   The owner must pay to the…