Oswin v Conn
[2012] QCAT 630
| CITATION: | Oswin v Conn and Anor [2012] QCAT 630 |
| PARTIES: | Denis Oswin |
| v | |
| Timothy Conn Caroline Conn |
| APPLICATION NUMBER: | BDL259-12 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 17 December 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Denis Oswin pay Timothy Conn and Caroline Conn’s costs thrown away by the failure to amend, fixed at $1,070.00 by 21 December 2012. |
| CATCHWORDS: | COSTS – where proceeding commenced in wrong name – where proceeding named incorrect respondents – where error brought to applicant’s attention – where no action taken – where application to strike out proceedings – where application to amend names of parties – where application for costs – whether costs should be ordered – where costs sought pursuant to costs agreement – where no leave for legal representation Queensland Civil and Administrative Tribunal Act 2009, ss 43, 48, 100 ,103 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Oswin started these proceedings in the name of D & D Oswin Builders Pty Ltd. He named the respondents as Nathan and Caroline Conn. In fact, as the heading shows, the correct applicant was Mr Oswin personally and the correct respondents were Timothy and Caroline Conn.
On 28 August 2012, Mr and Mrs Conn, through their lawyer Hemming + Hart, invited Mr Oswin to either amend the claim or discontinue it. Hemming + Hart said that their clients were Timothy and Caroline Conn. They said that Mr and Mrs Conn had entered into a contract with Mr Oswin but had not entered into a contract with D & D Oswin Builders Pty Ltd.
By letter of 29 August 2012, Mr Oswin’s lawyers advised that their client would not discontinue the proceeding and would not amend the names of the parties. In the same letter, they threatened to bring an application for a decision in default of a response.
On 31 August 2012, Mr and Mrs Conn filed a response and an application to strike out the proceeding. On 14 September 2012, Mr Oswin filed an application to change the names of the parties. I granted the application to amend and refused the application to strike out. Mr and Mrs Conn wanted an order that Mr Oswin pay their costs of and incidental to the proceedings to date, calculated at $10,660.10.
Other than as provided under the Queensland Civil and Administrative Tribunal Act 2009 or an enabling Act, each party to a proceeding must bear that party’s own costs for the proceeding[1]. The tribunal may make an order for costs if it considers that the interests of justice require it to make an order[2]. The tribunal can order costs if a party is acting in a way that unnecessarily disadvantages another party to the proceeding[3]. “Unnecessarily disadvantages” includes “vexatiously conducting the proceeding”[4].
[1] Queensland Civil and Administrative Tribunal Act 2009, s 100.
[2] Section 103.
[3] Section 48(2)(c).
[4] Section 48(1)(f).
Had Mr Oswin’s lawyers conducted even a cursory examination of the contract on which their client relied, it would have been obvious that the parties named in the application were wrong. Hemming + Hart brought this fact to their attention. Not only did they fail to correct the mistake, Mr Oswin’s lawyers threatened summary action if Mr and Mrs Conn did not file a response within time. I am satisfied that this behaviour is within the meaning of “vexatiously conducting proceedings” and a costs order is appropriate.
Mr and Mrs Conn’s claim for $10,660.10 is based upon Hemming + Hart’s charge pursuant to a costs agreement.
The main purpose of the Tribunal is to have parties represent themselves[5]. Leave for legal representation will only be granted if the interests of justice require it. Mr and Mrs Conn did not have leave for legal representation and the skirmish about the correct parties, although annoying, was not so complex that Mr and Mrs Conn needed legal representation. In the absence of leave for legal representation, I see no reason why Mr and Mrs Conn should be compensated for the costs they incurred in engaging legal assistance by reference to the costs agreement.
[5] Section 43.
If the tribunal makes an order for costs, it must fix those costs if possible[6]. The amounts in dispute are less than $50,000. The appropriate scale is the Magistrates Scale for matters less than $50,000. Mr and Mrs Conn have not lost the benefit of work done in examining Mr Oswin’s claim or in filing the response and counterclaim. They do have costs thrown away by filing the application to strike out, and attending the directions hearing where the application was determined. Although not strictly referable to the steps taken by Hemming + Hart, I propose to fix costs by reference to the following items:
[6] Section 107(1).
Item 3 250.00 Item 6(j) 260.00 Item 10 560.00
Denis Oswin shall pay Timothy Conn and Caroline Conn’s costs thrown away by the failure to amend, fixed at $1,070.00 by 21 December 2012.
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