On the Way Up Pt Ltd v Silcock

[2018] QCAT 38

CITATION: On the Way Up Pt Ltd v Silcock [2018] QCAT 38

PARTIES:	On the Way Up Pty Ltd (Applicant)
v
Dayle Robert Silcock (Respondent)

APPLICATION NUMBER: BDL216-15

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member King-Scott

DELIVERED ON: 20 February 2018

DELIVERED AT: Brisbane

ORDERS MADE:

CATCHWORDS:

The Respondent pay the Applicant costs fixed at $13,209.00, such sum to be paid by 4 pm on 30 March 2018.

Costs – Calderbank Offer

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. The hearing of this matter took place on 23 August 2017 and, following receipt of written submissions, culminated in a decision of this Tribunal on 3 January 2018.

2. The Applicant was successful in the claim and I invited submissions on costs. Submissions have been provided by both parties.

3. The Tribunal has powers to award costs pursuant to s77(3) of the Queensland Building and Construction Commission Act1991 displacing the

   usual no costs provision in Tribunal matters as provided by s100 of the

   Queensland Civil and Administrative Tribunal Act 2009.

4. The Applicant is claiming costs, comprising a filing fee of $305, expert witness costs of $5,644 and legal fees, being counsel's fees, of $9,735.

5. On 14 March 2017 and 19 April 2017 the Applicant made two Calderbank offers to the Respondent. Both offers were that the parties walk away and bear their own costs. The Applicant being successful in its claim has obtained a more favourable result.

6. The Respondent resists the application for costs on several bases. firstly, he submits that the expert witness ICPS Australia Pty Ltd changed its evidence following the experts conclave when, initially, it, in part, had supported the Respondent's case.

7. The Respondent further submits that the Applicant's legal costs should not have to be paid for the same reason. Indeed, he seeks an order that his costs should be paid by the Applicant!

8. He submits that the joint experts report was not received by him until 20 April 2017 which was after the last Calderbank offer. Of course, that would not have stopped him from accepting the offer, or indeed, making an offer in response.

9. I observed in my earlier reasons that I considered the Respondent, Mr Silcock took an inflexible approach in his dealings with Mr Pocock, the director of the Applicant, and had forced him to come to the Tribunal. Mr Silcock was determined to have his day in court or, in this case, the Tribunal. In my opinion, the Respondent has been unreasonable in his defence of the claim, and, whereas, in different circumstances, I might have reduced the costs to reflect a standard basis for charging, in this case, in view of the Respondent’s attitude I have fixed the costs on an indemnity basis.

10. In my opinion, the Respondent should pay the filing fee of $305, the expert witness costs of $5,644.00 and a proportion of counsel’s fees. Those fees include an amount that I ordered Mr Silcock to pay for costs thrown away by an adjournment, back in May 2017. I am advised those costs remain unpaid, to this day. I, therefore, reduce the sum for legal fees  from $9,735 to $7,260.

11. Accordingly, I order the respondent to pay the applicant costs fixed at $13,209.00, such sum to be paid by 4 pm on 30 March 2018.