Martin v Gosdschan
[2012] QCAT 316
•25 July 2012
| CITATION: | Martin v Gosdschan [2012] QCAT 316 |
| PARTIES: | Brad Martin (Applicant) |
| v | |
| Petra Gosdschan (Respondent) |
| APPLICATION NUMBER: | BD439-09 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr B Cullen, Member |
| DELIVERED ON: | 25 July 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Mr Martin to pay the sum of $13,345.10 in legal costs to Ms Gosdschan within 30 days of this Order. |
| CATCHWORDS: | Domestic Building Dispute – Legal Costs – Applications by both parties – costs awarded to respondent homeowner in circumstances where applicant builder was, in substance, wholly unsuccessful Queensland Civil and Administrative Tribunal Act 2009 , ss 43, 100, 102 Bradley Martin v Petra Gosdschan [2011] QCATA 71 |
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
This is an application for costs by both the Applicant, Mr Brad Martin, and also by the Respondent, Ms Petra Gosdschan, following a long and tumultuous journey of this matter through the Tribunal.
Briefly, it is necessary to outline the relevant history of this matter, which began with some renovations of Ms Gosdschan’s home, performed by Mr Martin. Mr Martin commenced a claim in the former Commercial and Consumer Tribunal, seeking $20,030.00 of payments allegedly owed to him by Ms Gosdschan for work performed at her home.
As it eventuated, Mr Martin was operating with a suspended builder’s license, and without a written building contract as required for domestic building works over $3,300.00 in value, by virtue of section 8 and Schedule 2 of the Domestic Building Contracts Act 2000. As such, Mr Martin eventually amended his application to make a claim for his work in quantum meruit, which was the only avenue of possible legal relief open to him in the circumstances.
Ms Gosdschan, as is commonly the case in matters where builders seek to recover payments allegedly owing to them by homeowners in this Tribunal, had something to say about these matters and filed a counterclaim, alleging that she had in fact overpaid Mr Martin. She additionally alleged that the works performed by Mr Martin were defective in many respects. The matter proceeding to hearing before the Tribunal on 15 July 2010, and Mr Martin was ordered to pay Ms Gosdschan the sum of $48,020.07. There was no order made as to costs.
Following the 15 July 2010 decision of the Tribunal, Mr Martin appealed to the Appellate Tribunal, comprised of Senior Member O’Callaghan and Member Cotterell. These learned Members produced a comprehensive appellate decision[1], and granted leave to appeal. The learned Members determined that Mr Martin had been denied procedural fairness in the 15 July 2010 Tribunal hearing, in that Mr Martin had been precluded from cross-examining a critical witness, who had given evidence on the costs of rectification. For this reason, the learned Members ordered that the 15 July 2010 decision be stayed pending a rehearing of Ms Gosdschan’s counterclaim relating to the costs of rectification.
[1] Bradley Martin v Petra Gosdschan [2011] QCATA 71.
The rehearing came before me on 22 November 2011. Following that hearing, I determined that:
1. The Applicant, Mr Brad Martin, pay to Ms Gosdschan the sum of $15,434.00, representing the cost of rectification of work previously found to be defective.
2. Mr Martin to make payment to Ms Gosdschan of this sum, together with the sum of $27,505.67, representing the amount previously found to have been overpaid by Ms Gosdschan to Mr Martin, by:
4:00pm on 30 December 2011
3. Any submissions on the issue of legal costs are to be filed and exchanged by the parties on or before 22 November 2011.
Legal costs in QCAT proceedings
The parties have each made submissions in relation to legal costs. Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) provides that, ordinarily, each party is to bear their own costs. However, s102 of the QCAT Act provides that the Tribunal may award costs against a party in the interests of justice, as follows:
102 Costs against party in interests of justice
(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.
(2) However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.
(3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
(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
(ii) whether 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.
Costs arguments of the parties
Ambitiously, or perhaps just optimistically, Mr Martin seeks that Ms Gosdschan contribute to the costs of his appeal. His submissions on the matter are brief, but simply explain a view that having been successful in his appeal, and in having the matter remitted, that he should receive his costs. Considering that it was an error on the Tribunal’s part in denying Mr Martin the full benefit of the procedural fairness that litigants should expect in QCAT, and not owing to the conduct of Ms Gosdschan in any way, there is no basis for a departure from the provisions contained in s 100 of the QCAT Act. Ms Gosdschan should not be required to bear the costs of an error made in this respect. For this reason, I dismiss Mr Martin’s application for costs.
Ms Gosdschan’s submissions on legal costs are extensive and articulate the lengthy and protracted history of this matter. The submissions draw attention to the decisions of this Tribunal in both Fitzpatrick as trustee for the Fitzpatrick Discretionary Trust v Young [2010] QCAT 408, as well as Kehl v Board of Professional Engineers of Queensland [2010] QCATA 77.
In Fitzpatrick, the Tribunal, deciding in the respondent’s favour, determined that although the applicant’s claim therein was not vexatious, it should not have brought. I am of a similar view with regards to Mr Martin’s application, for a number of reasons. Firstly, Mr Martin saw fit to operate outside the parameters of the Domestic Building Contracts Act 2000, in circumstances where his license was suspended by the Queensland Building Services Authority. In quantum meruit, the Tribunal determined that Mr Martin was not entitled to have charged Ms Gosdschan what he might otherwise have, and Mr Martin has been wholly unsuccessful in his application. Although his appeal was successful, it can be seen as a hollow victory in that it did not result in his actually receiving any of the compensation he sought in his application.
Rather, his appeal meant that Ms Gosdschan was put to the cost of the original hearing, the appeal, and then the rehearing. She was successful in her arguments at every turn, and it would be grossly unfair for her award, representing the costs of rectification and overpayments made by her to Mr Martin, to be frittered away by her legal costs.
In Kehl, her Honour Judge Kingham considered that an appropriate approach to the issue of costs was to examine the “relative strengths of the parties’ cases”.[2] Applying that approach here, it is my view that Ms Gosdschan had a much stronger case, and one that should have caused Mr Martin to take stock of his own position in continuing to press his doomed application.
[2] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 77, para 7.
Ms Gosdschan’s submissions in support of her legal costs outline a lengthy history of continued non-compliance by Mr Martin with Tribunal directions. Although all of the conduct pointed to was on the lesser scale of non-compliance, and resulted in eventual compliance, I am convinced that parties who are forced to continually pester their opponent incur costs in the process. This sort of conduct falls within the factors contained in s 102 of the QCAT Act that the Tribunal may consider in making a costs award.
As there has already been an order made that the parties bear their own costs of the 15 July 2012 hearing, it is not now open to me to make an order in relation to those proceedings. However, for the reasons provided above, and in view of the costs Ms Gosdschan has been put to in circumstances where Mr Martin has been wholly unsuccessful in substance, I consider that she is entitled to the costs of both the appeal and the rehearing in this matter.
I note in this regard that there was an order made entitling the parties to legal representation. Ms Gosdschan was represented, and incurred costs as a result, in circumstances where the Tribunal determined that she was entitled to legal representation pursuant to s43 of the QCAT Act. Ms Gosdschan’s solicitor has advised by way of the submissions filed in support of the application for costs that these costs amount to $7,590.59 for the appeal, and $4,754.51 for the rehearing. In my view, these are not unreasonable commercial legal costs.
Order
Mr Martin is to pay the sum of $13,345.10 in legal costs to Ms Gosdschan within 30 days of this Order.
0
3
0