Loesch v Placid Pools Pty Ltd (No 2)

[2018] QCAT 122

CITATION: Loesch v Placid Pools Pty Ltd (No 2) [2018] QCAT 122

PARTIES:	Ralph Loesch (Applicant)
v
Placid Pools Pty Ltd (Respondent)

APPLICATION NUMBER: BDL 093-17

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member King-Scott

DELIVERED ON: 30 April 2018

DELIVERED AT: Brisbane

ORDERS MADE: The Applicant pay the Respondent’s costs fixed at $1,000.00 by 4pm on 30 May 2018.

CATCHWORDS: PROCEDURE – COSTS – Discretionary matters affecting a decision to award costs

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

1. This matter was heard on 15 December 2017.  Neither party had legal representation. 

2. At the hearing the Applicant was unsuccessful. Both parties reside in Cairns, but attended Brisbane for the hearing.

3. Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) provides that each party to a proceeding must bear its own costs for the proceeding unless otherwise provided under that Act or an enabling Act.

4. Section 77 of the Queensland Building and Construction Commission Act 1991 empowers the Tribunal, in hearing a building dispute, to award costs.

5. Section 102 of the Act permits the Tribunal to make an order requiring a party to a proceeding to pay all or the stated part of the costs of another party if the Tribunal considers the interests of justice require it to make that order. 

6. The Tribunal may have regard to the matters set out in s.102(3) of the Act in deciding whether to award costs.  They include the nature and complexity of the dispute, and whether a party to the proceeding has acted in a way that unnecessarily disadvantages another party to the proceeding.

7. The Respondent has applied for costs order.  It has filed written submissions in support of a claim for $10,000.  Submissions have been received from the Applicant.

8. The matter involved expert evidence from a number of witnesses. I am of the opinion that the matter was sufficiently complex to warrant an award for costs.

9. The Tribunal should endeavour, where possible, to fix costs: see s.107 of the Act.

10. The Applicant’s submissions are supported by an itemised list of expenses but no particulars of the amounts claimed for each expense are provided. The expenses are as follows: 

    Return Flights to Brisbane from Cairns for two $1,000.00, including the day’s food allowance.

    $9,000 is based on 45 Hrs at a rate of $200 per hour for a total figure made up of all Persons involved, which is generous considering the case took 10 Months in total and the hours attributed to this actually far exceeded 45 hrs, however the true cost figure in my opinion would look ridiculous, this made up of:

    2 staff, Managers working on the case

    Site visits to property by staff and sub-contractors

    10 Months length from initial contact to court case

    3 x Phone mediation sessions with QCAT and Loesche

    Securing witnesses and statements

    Having Witnesses available for day of case

    21 pieces of evidence having been compiled

    Evidence gathering and investigations

    5 replies to responses from Mr Loesche

    Over 300 pieces of paper copies and / or emails

    Trips into town to mail responses to QCAT and serving to Mr Loesche

    Correlation of all parts to ensure a fluent timeline for court

    An equated minimum of 5hrs per week, over the 10 month period attributed to meetings and work done in defending ourselves.

11. The Applicant submits that at a Directions Hearing on 4 October 2017, the question of costs was raised by the Respondent and Senior Member Brown advised that each party would have to bear its own costs. The Respondents dispute this and say that Senior Member Brown advised that the issue of costs would be decided at a later date. The Directions made on 4 October 2017 make no mention of costs. I do not accept that in a matter such as this Senior Member Brown would give advice as stated by the Applicant.

12. The above expense were incurred by the Respondents own non-legal staff in house. No legal expenses were incurred. I am satisfied as to the reasonableness of air fares at $1,000.00. I fix the costs recoverable at $1,000.00.

13. The Tribunal orders the Respondent to pay the Applicants’ costs fixed at $1,000.00 by 4pm on 30 May 2018.