Hill Constructions Qld Pty Ltd v Davis and Pegg
[2011] QCAT 57
•25 February 2011
| CITATION: | Hill Constructions Qld Pty Ltd v Davis and Pegg [2011] QCAT 57 | |
| PARTIES: | Hill Constructions Qld Pty Ltd | |
| v | ||
| Ms Karen Davis and Mr David Pegg | ||
| APPLICATION NUMBER: | BD494-09 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Bridget Cullen Mandikos, Member |
| DELIVERED ON: | 25 February 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] The Respondents pay the Applicant’s legal costs fixed in the sum of $1,000.00 no later than 4pm on Friday 11 March 2011. |
| CATCHWORDS : | Legal Costs – Costs against party in interests of justice – conduct of party unreasonable in refusing to communicate with Tribunal, resulting in unnecessary attendance at Directions Hearing Queensland Civil and Administrative Tribunal Act 2009, ss 100 and 102 |
APPEARANCES and REPRESENTATION (if any):
| Decision on the papers. |
REASONS FOR DECISION
This decision relates to the awarding of costs in a domestic building dispute, for attendance by the Applicant at a Directions Hearing that the Respondents unreasonably refused to adjourn.
Following a compulsory conference, this matter was resolved by consent of the parties on 16 March 2010. Thereafter, as there were difficulties complying with the terms of the consent order as drafted, a Directions Hearing was held on 5 August 2010.
At the Directions Hearing, the Tribunal directed as follows:
“1. The parties must use their best endeavours to have Peter McGregor provide a cost to complete or rectify the rectification work undertaken by the applicant pursuant to paragraph 5 of the Decision dated 16 March 2010 no later than
4.00pm on Friday, 27 August 2010.
Upon receipt of the costing provided by Peter McGregor, DC Law will disburse the trust money to the applicant after deducting the cost of any further rectification or completion of any building work pursuant to paragraph 1 hereof.
In the event that there is a further cost to the parties for the completion of Peter McGregor’s report, the costs are to be borne equally between the parties and adjusted upon the disbursement of the $15,000.00 from the trust account of DC Law.”
Following this, a series of events transpired resulting in an entirely unnecessary Directions Hearing being held at QCAT on 7 December 2010.
The difficulties began to unfold after the Respondents, unsatisfied with the terms of their negotiated decision, made further complaint to the Queensland Building Services Authority (“QBSA”), apparently for matters arising out of the same set of circumstances. It appears that when the Respondents lodged their complaint with the QBSA, they supplied the QBSA with both a complaint form, as well as a copy of the 5 August 2010 directions. Subsequently, the QBSA wrote to the QCAT Registrar, advising that the QBSA had not received an order from QCAT (as is standard QCAT practice), and requested same. Additionally, the QBSA advised QCAT that Peter McGregor, Building Inspector, no longer worked for the QBSA.
Upon receiving the QBSA’s letter, QCAT listed the matter for a Directions Hearing, with the assumption that there were further difficulties complying with the 5 August 2010 Directions, which specified that Peter McGregor was to play a role in providing a costing to the parties with respect to the rectification work being undertaken by the Applicant. For this reason, QCAT presumed that a new building inspector would need to be appointed for purposes of compliance with the 5 August 2010 Directions.
On 26 November 2010, Mills Oakley Lawyers, acting on behalf of the Applicant, wrote to the solicitor on record for the Respondents, advising that the Directions Hearing scheduled for 7 December 2010 was unnecessary. Mills Oakley requested that the Respondents’ solicitor advise QCAT that as the proceedings had been resolved, and all monies held on trust had been disbursed in accordance with the directions of Peter McGregor, the Directions Hearing was not required. Further, Mills Oakley advised that in the event that they did not receive correspondence from the Respondents prior to close of business on 30 November 2010, they intended to make application for the Applicant’s costs that were thrown away in attending the unnecessary Directions Hearing.
On 30 November 2010, the Respondent Mr David Pegg (“Mr Pegg”) emailed Mills Oakley, advising that, “the case with QCAT has been reopened by BSA Qld and not by David Pegg or Karen Davis. Any issues you have with the proceedings of QCAT should be taken up with QCAT and BSA.”
Thereafter, on 2 December 2010, Mr Pegg wrote to QCAT and advised that he understood the Directions Hearing on 7 December 2010 to be for purposes of resolving issues relating to the disbursement of monies held on trust in accordance with QCAT’s 5 August 2010 directions. Considering that the monies had, in fact, been distributed in accordance with the terms of settlement, it is difficult to understand how this belief was rational.
[10] Thereafter, on 3 December 2010, the solicitors that had been listed on record for the Respondents at QCAT advised QCAT that as their instructions were limited to appearance at the settlement conference, they could not assist with the delisting of the Directions Hearing scheduled for 7 December 2010.
[11] On 2 December 2010, Mills Oakley again wrote to the Respondents’ solicitor and clearly explained that the matter had been resolved, and that as there were no matters outstanding, again requested that the Respondents notify the Tribunal that the dispute was at an end. Again, Mills Oakley put the Respondents on notice that they considered the Respondents to be unreasonably refusing to notify QCAT that the matter had been finalised.
[12] Although Mills Oakley’s 2 December 2010 letter was sent to the Respondents’ solicitor, who no longer held instructions, I am confident that it was received by Mr Pegg. On 6 December 2010, Mr Pegg appended Mills Oakley’s 2 December 2010 letter to an email delivered by Mr Pegg to Ms Tiffany Barber of the QBSA, and also to the relevant QCAT case manager. It is therefore impossible for Mr Pegg to argue that he did not understand the nature of Mills Oakley’s request to advise QCAT that the matter had been finalised.
[13] At the Directions Hearing that was held on 7 December 2010, it became immediately apparent that all matters had been settled between the parties. In response to questioning from myself as to why Mr Pegg did not comply with an abundantly reasonable request by Mills Oakley Solicitors to notify QCAT that the matter had been finalised, and that there was no need for further Tribunal involvement, Mr Pegg had no satisfactory explanation. Rather, Mr Pegg’s explanation was that he did not view it as his problem. The end result of Mr Pegg’s attitude was that the Applicant was put to the expense of sending along a solicitor to appear at a Directions Hearing that should have been de-listed by consent. Mr Pegg chose not to advise the Tribunal, out of an apparent desire not to cooperate with what was a very clear and abundantly reasonable request by the Applicant. I found Mr Pegg’s general attitude toward the matter to be verging on contemptuous.
[14] Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) clearly indicates that in the normal course of events, parties are to bear their own costs. However, section 102 of the QCAT Act provides QCAT with the power to award costs against a party in the interests of justice. Section 102(1) provides that:
“(1) The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.”
[15] Further, in deciding whether to award costs under subsection 1, section 102(3) provides that QCAT may have regard to the following factors:
“(a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);
(b)the nature and complexity of the dispute the subject of the proceeding;
(c)the relative strengths of the claims made by each of the parties to the proceeding;
(d)for a proceeding for the review of a reviewable decision—
(i)whether the applicant was afforded natural justice by the decision-maker for the decision; and
(iiwhether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
(e)the financial circumstances of the parties to the proceeding;
(f)anything else the tribunal considers relevant.”
[16] In respect of this Directions Hearing, I consider that Mr Pegg acted in a manner that unnecessarily disadvantaged the Applicant, by causing it to incur legal costs when Mr Pegg was in a position to advise QCAT that his matter had been finalised, trust monies had been disbursed, and there were no difficulties with interpretation of QCAT’s orders.
[17] In order to afford the parties procedural fairness, I ordered that the Applicant and Respondents have the opportunity to provide any written submissions on the issue of costs with respect to the 7 December 2010 Directions Hearing. In order to avoid incurring further costs, Mills Oakley sensibly made their submissions orally at the time of the Directions Hearing.
[18] Mr Pegg filed submissions in QCAT on 16 December 2010, setting out his arguments as to why QCAT should not order him to pay the Applicant’s legal costs. In broad compass, Mr Pegg’s submissions allege that the difficulties with the Directions Hearing relate to QCAT and the QBSA’s failure to communicate with each other. I do not consider this to be a reasonable submission, for the reason that the 2 December 2010 letter from Mills Oakley to the Respondents quite clearly set out the relevant factors, and requested that the Respondents notify QCAT that the matter had settled.
[19] I am also conscious of the fact that the Applicant, who has been put to these additional legal costs, is a small business, run by a builder who is responsible for supporting a family.
[20] Having regard to the Magistrates Courts Scale of Costs, I order that the Respondents pay the Applicant’s costs of attendance at the 7 December 2010 Directions Hearing, fixed in the sum of One Thousand Dollars ($1,000.00).
Order
The Respondents pay the Applicant’s legal costs fixed in the sum of $1,000.00 no later than
4pm on Friday 11 March 2011.
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