Ibrahim v PGH Bricks and Pavers Pty Ltd - [2018] QCAT 380

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ibrahim & Anor v PGH Bricks and Pavers Pty Ltd & Anor [2018] QCAT 380

PARTIES:

MICHAEL IBRAHIM

(first applicant)

PAMELA TRUMPER
(second applicant)

v

PGH BRICKS AND PAVERS PTY LTD

(first respondent)

SUPERIOR HOMES PTY LTD
(second respondent)

APPLICATION NO/S:

BDL049-17

MATTER TYPE:

Building matters

DELIVERED ON:

5 November 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Kent

ORDERS:

Michael Ibrahim and Pamela Trumper to pay PGH Bricks and Pavers Pty Ltd its costs fixed at $3,740.00 by 14 December 2018.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where general rule that successful party is entitled to costs in building dispute – where competing expert evidence – where one party’s witness declared not to be an expert – where no evidence of financial circumstances of unsuccessful party being sufficiently precarious to displace general rule that costs follow event –– where decision to obtain second building report late in proceedings was unreasonable

Queensland Building and Construction Commission Act 1991 (Qld), s 77
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 107

A L Builders Pty Ltd v Fatseas (No. 2) [2014] QCATA 319
Civic Steel Homes v Mitra [2006] QDC 322
Faulks v New World Constructions Pty Ltd (No. 2) [2014] QCAT 329
Joanne Baxter and Fifities Food Pty Ltd atf The Ninja Bear Trust t/as Subway Wynum Central v Subway Realty Pty Ltd and Kennion (Trustees) Pty Ltd [2013] QCAT 316
Leo v Paulsen [2010] QCAT 122
Lyons v Dreamstarter Pty Ltd [2010] QCAT 447

APPEARANCES:

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

REASONS FOR DECISION

What is this application about?

Michael Ibrahim and Pamela Trumper (the applicants) unsuccessfully sought orders against PGH Bricks and Pavers Pty Ltd (first respondent) and Superior Homes Pty Ltd (second respondent) in a building dispute.
Having received submissions from two of the parties, the remaining issue for the Tribunal to decide is whether to award costs.
Should Michael Ibrahim and Pamela Trumper pay PGH Bricks and Pavers Pty Ltd costs?
The Tribunal may award costs when deciding a building dispute.[1]
[1]Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act), s 77(2)(h).
In the case of Lyons v Dreamstarter Pty Ltd,[2] with costs arising out of building disputes, former Deputy President Kingham stated that pursuant to s 7 of the Queensland Civil and Administrative Tribunal 2009 (Qld) (QCAT Act), s 77(1)(h) of the Queensland Building Services AuthorityAct 1991 (Qld) (now s 77(1)(h) of the QBCC Act) modifies s 100 of the QCAT Act, so that s 77(1)(h) is read as part of the QCAT Act.
[2][2010] QCAT 447.
Section 77(1)(h) does not provide guidance or prescription about the occasions for, or conditions of, exercise of the power to award costs.
The applicants submit that they are not claiming any costs. They expressed the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QCAT 380
Decision Date: 5 November 2018

CaseChat Overview and Summary

The case of Ibrahim v PGH Bricks and Pavers Pty Ltd involved a dispute between the plaintiffs, Michael Ibrahim and Pamela Trumper, and the defendant, PGH Bricks and Pavers Pty Ltd, relating to the quality of paving work carried out by the defendant. The plaintiffs sought relief on the grounds that the defendant's work was defective and had caused damage to their property. The matter was heard in the NSW Civil and Administrative Tribunal.

The central legal issue for the court to determine was whether the general rule, which grants the successful party the right to costs in building disputes, should apply. This involved examining the expert evidence presented by both parties, with a particular focus on the reliability and credibility of the expert witnesses. Furthermore, the court had to consider whether the financial circumstances of the unsuccessful party were precarious enough to warrant a deviation from the general rule, and whether the decision to obtain a second building report late in the proceedings was reasonable.

The court determined that the general rule that costs follow the event should apply in this case. The tribunal found that the plaintiffs' expert witness was not credible and was not qualified as an expert. There was no evidence presented to suggest that the plaintiffs' financial circumstances were precarious enough to warrant an exception to the general rule. Additionally, the tribunal held that the decision to obtain a second building report late in the proceedings was unreasonable. As a result, the plaintiffs were ordered to pay the defendant's costs, which were fixed at $3,740.00, to be paid by 14 December 2018.

Orders

Orders of the court

Michael Ibrahim and Pamela Trumper to pay PGH Bricks and Pavers Pty Ltd its costs fixed at $3,740.00 by 14 December 2018.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ibrahim & Anor v PGH Bricks and Pavers Pty Ltd & Anor [2018] QCAT 380
PARTIES:	MICHAEL IBRAHIM (first applicant) PAMELA TRUMPER (second applicant)
v
PGH BRICKS AND PAVERS PTY LTD (first respondent) SUPERIOR HOMES PTY LTD (second respondent)
APPLICATION NO/S:	BDL049-17
MATTER TYPE:	Building matters
DELIVERED ON:	5 November 2018
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Kent
ORDERS:	Michael Ibrahim and Pamela Trumper to pay PGH Bricks and Pavers Pty Ltd its costs fixed at $3,740.00 by 14 December 2018.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where general rule that successful party is entitled to costs in building dispute – where competing expert evidence – where one party’s witness declared not to be an expert – where no evidence of financial circumstances of unsuccessful party being sufficiently precarious to displace general rule that costs follow event –– where decision to obtain second building report late in proceedings was unreasonable Queensland Building and Construction Commission Act 1991 (Qld), s 77 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 107 A L Builders Pty Ltd v Fatseas (No. 2) [2014] QCATA 319 Civic Steel Homes v Mitra [2006] QDC 322 Faulks v New World Constructions Pty Ltd (No. 2) [2014] QCAT 329 Joanne Baxter and Fifities Food Pty Ltd atf The Ninja Bear Trust t/as Subway Wynum Central v Subway Realty Pty Ltd and Kennion (Trustees) Pty Ltd [2013] QCAT 316 Leo v Paulsen [2010] QCAT 122 Lyons v Dreamstarter Pty Ltd [2010] QCAT 447
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).