James v. Robins
[2012] QCAT 400
•4 September 2012
| CITATION: | James v Robins [2012] QCAT 400 |
| PARTIES: | Mitcham James (Applicant) |
| v | |
| Luke Robins trading as Solarus Projects Pty Ltd (Respondent) |
| APPLICATION NUMBER: | BDL017-11 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Townsville TTT |
| DECISION OF: | Mark Johnston, Member |
| DELIVERED ON: | 4 September 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. That the Applicant must pay the Respondent the sum of $1,635.27 within 28 days. |
| CATCHWORDS: | COSTS – wrong party named as respondent – entitlement to costs Queensland Civil and Administrative Tribunal Act 2009, s 100 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Background
On 31 May 2011 the Tribunal conducted a compulsory conference in this matter.
Mr Marr, the solicitor for Applicant, appeared in person.
Mr Robins, the Respondent, appeared in person.
The position without disclosing the discussions which took place during the compulsory conference centred on whether Mr James had any right to sue Mr Luke Robins.
Mr Marr told the Tribunal that he would get instructions from Mr James and it was highly probable that Mr James would withdraw his application. Mr James subsequently withdrew his application. Mr Robins asked to be reimbursed for being required to attend.
The Tribunal made the following orders:
(a)The Tribunal gives the Applicant leave to withdraw his application against the Respondent Mr Luke Robins trading as Solarus Projects;
(b)The Tribunal gives the Applicant leave to file a fresh application against Solarus Projects Pty Ltd by 4.00pm on 30 June 2011;
(c)The Tribunal directs the Respondent to file in the Tribunal registry and serve on the Applicant a list of the costs thrown away in relation to the Compulsory Conference of 2 June 2001, by 4.00pm on 16 June 2011;
(d)The Tribunal directs the Applicant to file in the Tribunal registry and give to the Respondent his submissions in relation to the question of costs, by 4.00pm on 30 June 2011;
(e)The Tribunal directs the Respondent to file in the Tribunal Registry and serve on the Applicant any submissions in reply to the Applicant’s submissions on costs, by 4.00pm on 14 July 2011; and
(f)The Tribunal will decide the matter of costs on the papers.
Background
Mr James was unhappy with the state of repair of the unit which he had acquired from Solarus Projects Pty Ltd.
The subject matter of the complaint was defective tiling. Mr James had apparently been unable to resolve his claim over the preceding 18 months. His intention, according to his solicitor, was to bring the application against Solarus Projects Pty Ltd.
The excuse that was offered by the Applicant’s solicitor was that the Respondent was the person who the Applicant had contact with when dealing with the purchase of the unit and subsequently with issues regarding the tiling defects.
The Applicant’s solicitor concedes in his submission that the Respondent sent an e-mail on 12 April 2011 to his client, which has given him the correct details of who the respondent should be.
Entitlement to costs
The Applicant seeks that no costs be given.
It is material to the application for costs that the matter had not been commenced before QCAT commenced on 1 December 2009.
Section 100 of the QCAT Act provides that “other than as provided under the QCAT Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.”
The proceeding arises out of a building matter dispute.
Deputy President Kingham, in Lyons v Dreamstarter Pty Ltd [2010] QCAT 447 (14 September 2010) stated that the jurisdiction to award costs
‘allows the Tribunal to make an order as to costs that is justified in the circumstances. It is a broad general discretion which must be exercised judicially, not upon irrelevant or extraneous considerations but upon facts connected with to leading up to the litigation.’
The QCAT cost provisions (Ch 2, Pt 6, Div 6) commence with s 100 which, on its face, indicates a plain intention that costs orders will not be an integral feature of QCAT’s operations:
‘other than as provided under this Act or an Enabling Act, each party to a proceeding must bear the party’s own costs for that proceeding’.
However, under s 102 the Tribunal may make an order for costs ‘…if the Tribunal considers the interests of justice require it to make the order’.[1] Under s 102(3) in deciding whether to award costs the Tribunal may have regard to certain matters including:
a) Whether a party in a proceedings is acting in a way that unnecessarily disadvantages the other party;
b) The nature and complexity of the dispute;
c) The relative strengths of the claims made by each party;
d) The financial circumstances of the parties;
e) Anything else the Tribunal considers relevant.
[1] Section 102(1) Queensland Civil and Administrative Tribunal Act 2009.
As the QCAT Appeal Tribunal has observed about these provisions, the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ points. They must be such to point so compellingly to a costs order that they overcome the strong contra-indication against costs orders contained in s 100.[2]
[2]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at paragraph [29].
Applicant’s Submissions
The Applicant’s solicitor contends that the Applicant should not be penalised by a costs order being made against him because he put the wrong respondent on the application. The Applicant is a lay person with a genuine grievance which he is pursuing.
Respondent’s Submissions
Mr Robins communicated directly with Mr James on receiving the Application advising him that he was not the right person to bring an action against and provided Mr James with the right details as to against whom to pursue his grievance.
Mr Robins submits that Mr James has no right of action against him. He told Mr James who should be the respondent in relation to the complaint that he had about defective tiling. He gave Mr James the correct details of a respondent who Mr James did have legal rights against.
Mr Robins submits that on receiving this e-mail the Applicant had the opportunity to get legal advice and withdraw his application so that the claim would be brought to the end. He stated that Mr James had failed to withdraw the application and that meant that he was required to attend the compulsory conference which involved a flight to Townsville to attend.
Interests of justice
Mr Robins is the innocent party to these proceedings. Mr James had no right to sue Mr Robins. This must be a cautionary tale to any litigant who wants to proceed in relation to a legal grievance against another party and to issue proceeding against that party. Mr James had the opportunity to get legal advice and chose not to. I would compare it to the situation where the surgeon takes out the wrong kidney of the patient – there may have been no intention to cause harm but it is simply unacceptable. Issuing proceeding is a very serious step for anyone and the Applicant must at least have the right respondent. If the Applicant is unsure then he can get advice. There is nothing to suggest that Mr James did not have the opportunity to get legal advice. The evidence is that he had that opportunity.
Mr James was advised by the Respondent that he had made a mistake in which he had named Luke Robins as respondent and gave him the opportunity to withdraw his Application. Mr James was brought on notice that he had named that wrong respondent to the proceedings. Again Mr James had the opportunity to get advice; clearly he did not do so.
In his solicitor’s submissions, it is stated that Mr James telephoned QCAT on 12 April 2011 after receiving Mr Robins’ e-mail to seek to withdraw his application but was told that they do not provide legal advice.
The Tribunal Registry rightly states that it cannot provide legal advice and the Tribunal infers that would mean that the Applicant had not tried to withdraw the application but was trying to get advice from the Registry in response to the Respondent’s e-mail stating that he has sued the wrong respondent. Again this highlights the fact that the Applicant was being put on notice that he needed to get advice if he did not understand the information from the Respondent’s e-mail.
These failures led to the Tribunal scheduling a compulsory conference. The QCAT Rules require parties to attend in person and that meant that Mr Robins had to attend personally. He clearly incurred costs of attending that were in effect completely unnecessary.
The Tribunal has also given Mr James with the opportunity to file a fresh application in relation to his grievance so that his rights have not been compromised.
Conclusions
The factors material to the discretion here include issuing proceedings against the wrong respondent; not withdrawing proceedings on notice that the wrong respondent had been named; and the rights of the innocent party in these particular circumstances.
In relation to the first of those matters, the Applicant has issued proceedings against Mr Robins when he had no right of action against Mr Robins. He has not acted on that advice from the Respondent and Mr Robins has incurred costs as a result of that failure. Mr Robins didn't ask to be joined as a party. The fact is that he was shocked when he received the Application and went out of his way to help the Applicant by providing him with details of the correct respondents in his e-mail of 12 April 2011. Mr Robins was acting appropriately and is clearly the innocent party.
The Applicant might well have an appropriate grievance in relation to the defective tiles but this is a dispute that involves the developer/builder and the Applicant. Mr James surely would have known who he bought this property from and this was certainly not Mr Robins. His name would not have been on the contract of sale as vendor. If Mr James has no right of action against Mr Robins that means the Application is a complete failure.
In relation to the relative strengths of the party Mr James had no case against Mr Robins.
If Mr James had acted after being put on notice by the Respondent’s e-mail of 12 April 2011 then Mr Robins would not have needed to attend the compulsory conference. These costs arise because the Applicant did not act when he was on notice that he had made a mistake.
The Tribunal would like to make it very clear that it is not awarding costs because the Respondent won the case. There are several factors that the Tribunal has accepted that place this matter within the interests of justice contra-indication against costs orders.
Costs
In relation to costs, Mr Robins has made a claim in relation to his lost time of 12 hours. I have considered the Applicant’s submissions on this point and do not accept the extent of those hours claimed. Mr Robins is clearly an astute, busy professional person who would have organised his day to work outside his commitment to attend the compulsory conference. I accordingly allow five hours, which consists of three hours for the compulsory conference and two hours travelling time. There has been no dispute as to the hourly rate which Mr Robins charges so I will allow five hours at $160 plus GST.
I do not accept the submission that the Applicant’s solicitor has made about travel, namely that the Respondent travels to and from Townsville on business and that this should therefore not be allowed. The evidence of Mr Robins was that he had to travel in order to attend the compulsory conference. Whilst it would be helpful if the parties aligned their affairs to minimise the costs incurred in the matter, it would be unrealistic to require business people to arrange their travel arrangements simply to suit court proceedings. If that occurred the case for a higher allowance in relation to time allowed would need to be made. I have accordingly made a decision about the costs of travelling. I see the costs as being firstly appropriate and secondly not unreasonable in their quantum. Accordingly I allow the out-of-pocket expenses for two flights.
In relation to the car rental it is not unreasonable for the Respondent to have obtained a car rental to let him attend the Tribunal hearing. This also gave the Respondent an opportunity to do other work whilst in Townsville and this is one of the reasons I have reduced his claim for lost time from 12 hours.
I do not accept any of the other claims as I do not consider them to be appropriate in the circumstances.
I have calculated that the sum payable to Mr Robins is $1,635.27. This sum having been calculated as follows:
(a) $880 for five hours professional time lost at $160 per hour plus GST;
(b) $234.00 for car rental costs;
(c) $246.09 for the flight from Cairns to Townsville; and
(d) $275.18 for the flight from Townsville to Brisbane.
Findings
Mr James issued an application against Mr Luke Robins trading as Solarus Projects.
Mr Robins sent an email to Mr James on 12 April 2011 advising him that he had issued the application against the wrong party. Mr Robins provided Mr James with the correct details for the Respondent.
The Tribunal set the matter down for a compulsory conference on 31 May 2011.
Mr Robins attended the conference in person on 31 May 2011.
Mr Robins incurred costs in attending the conference in person on 31 May 2011.
Orders
That the Applicant must pay the Respondent the sum of $1,635.27 within 28 days.
4