Queensland Building Services Authority v Fenwick
[2014] QCATA 93
•4 February 2014
| CITATION: | Queensland Building Services Authority v Fenwick [2014] QCATA 93 |
| PARTIES: | Queensland Building Services Authority (Applicant/Appellant) |
| v | |
| Mr Don Charles Fenwick (Respondent) |
| APPLICATION NUMBER: | APL069-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Oliver Dr Cullen, Member |
| DELIVERED ON: | 4 February 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The applicant must pay the respondent’s costs of the appeal fixed in the sum of $25,454.30 by 21 March 2014. |
| CATCHWORDS: | Costs – Queensland Building Services Authority Home Warranty Scheme – Application to review decision to reject homeowner’s claim – homeowner successful – QBSA entirely unsuccessful – application by homeowner for costs of the appeal – quantum of costs to be awarded. |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
History of this Application/Appeal
On 16 October 2012 the Appeal Tribunal ordered that the respondent must pay the applicant’s costs of the appeal to be agreed or assessed on a standard basis. The Tribunal also ordered that if the parties cannot agree the costs the applicant was to give the respondent a short form assessment and the costs would be fixed by the Tribunal consistent s 107 of the Queensland Civil and Administrative Tribunal Act 2009. The parties have not been able to agree the costs so it is now left to the Tribunal to now fix the costs.
Although the costs decision was to be listed for an oral hearing, it proved difficult to find a date suitable to the legal representatives so directions were made by the Tribunal for the parties to file written submissions, and for the Tribunal to determine the quantum of costs on the papers. The following written submissions have been received from both parties:
1.The Commission’s submissions, which include a response prepared by the Commission’s costs assessor (QICS Law) to the assessment performed by Hartwell Cost Consultants, were filed in the Tribunal on 25 September 2013; and
2.Mr Fenwick’s submissions in reply, which were filed in the Tribunal on 14 October 2013.
Mr Fenwick’s Cost Assessment
Mr Fenwick’s solicitors obtained a short form assessment of costs from Hartwell Cost Consultants that assessment which assessed the total costs of the appeal, including the application for a stay, at $45,130.21. This assessment comprised $11,791.82 for professional costs and $33,338.39 for outlays. The outlays comprised: $32,312.50 for counsel; $907.97 for the assessment fee and $117.92 for postage and petties.
Mr Fenwick’s counsel’s fees of $32,312.50 were included in the Hartwell’s assessment as an “outgoing”. In other words, these were just accepted, without comment and any regard as to what might be “standard” for the purposes of the assessment. Rather, it seems they were included as though they were to be recovered on and “indemnity” basis. The fees included work done in respect to the application for a stay filed by the Commission. This application was withdrawn without any order being made about costs. This is not surprising because of s 100 of the QCAT Act.
The Commission’s review of the Hartwell assessment
The QBSA (since restyled as the Queensland Building and Construction Commission, here referred to by us as ‘the Commission’) did not accept those costs as being reasonable for what was, in the end, only a half-day appeal hearing. The Commission had the Hartwell assessment reviewed by QICS Law, an independent cost assessor. QICS proved a commentary on the Hartwell assessment in a letter of 25 September 2013 in which it was critical of some of the professional fees charged.
Based on a review of the applicant’s appeal file, QICS was of the opinion that some of the correspondence claimed by Hartwell’s did not specifically relate to the appeal “as opposed to other matters”. It counted the ‘formal letters’ passing between them and reduced the amount for “drawing and engrossing” documents for the appeal. With respect to “special attendances,” the costs for this seemed to be taken from counsel’s breakdown of fees and it is obviously questionable as to whether all of these attendances were necessary for this appeal, when parties were directed to file submissions in writing prior to the hearing of the appeal. Hartwell’s did not provide any justification for the care and consideration component of a 30% uplift. There were other minor adjustments to “perusals” and “facsimiles”.
As for the outlays, QICS was critical of the amount claimed for counsel. Having regard to the issues in the appeal, the requirement for the parties to file written submissions with the hearing only allocated a half day with the parties speaking to the submissions, the amount claimed for counsel’s professional fees, as an outlay, is on a full indemnity basis rather that a standard basis as ordered by the Tribunal. It also includes professional fees in respect of the applicant’s application for a stay which was ultimately withdraw without any orders as to costs. QICS was of the view that counsel’s fees were “grossly excessive”. QICS’s justification for this can be summarised as follows:
(a)The same counsel was involved with the original hearing and was fully familiar with the issues in the appeal;
(b)The factual matrix had not altered from the original hearing;
(c)The decision under appeal was not complex, where no detailed consideration of a transcript of the original hearing was necessary;
(d)The submissions in the appeal were similar to those in the substantive hearing and were “re-arguing the respondent’s interpretation of the contract documentation and price
(e)Two days preparation for the appeal hearing to speak to the written submissions was plainly excessive.
In the end, the QICS assessment allowed $6,641.80 for the solicitor’s professional fees and reduced counsel’s fees by $18,312.50. QICS therefore adopted a figure of $14,000.00 as being reasonable for counsel’s fees, which the Commission is willing to accept. QICS also contended the assessment fee was high and reduced that to $500.00. The total costs and outlays were assessed at $25,454.30.
The Respondent’s submission
After reviewing the QICS commentary the respondent reduced the professional to $9,019.92 with no change to the outlays. However, rather than have Hartwell’s file any evidence from to justify the assessment, particularly counsel’s fees on a full indemnity basis, Mr Fenwick’s solicitor filed submissions in support of the assessment. The solicitor argues that:
(a)the appeal submissions were obviously different to the closing submissions in the substantive hearing;
(b)even though the factual matrix was the same, there were different matters to be considered in the appeal;
(c)the comparison to an appeal in the Supreme Court or the District Court are irrelevant to the matters under consideration in the subject appeal and QICS’s comments lack particularity;
(d)As there were seven grounds of appeal, each had to be addressed and QICS do not say how counsel’s fees can be said to be excessive;
(e)The appeal was “argued vigorously” in the hearing and therefore the preparation claimed was necessary.
Decision
The submissions of Mr Fenwick do not give any justification to the professional fees claimed by counsel. There is no distinction drawn between “indemnity” and “standard” rather they are simply taken at face value and passed onto the applicant as though the order for costs was on an indemnity basis. Whereas, the report from QICS provides some justification as to why the fees, of both counsel and the solicitor, are excessive. We accept generally the evidence of Mr Bloom from QICS, firstly because he is an expert cost assessor and secondly, because we are familiar with the issues involved in the appeal and consider that the amount sought to be recovered, particularly counsel’s fee, is excessive on a standard basis. Also, counsel’s fees do not distinguish fees associated with the stay application and those for the appeal.
We are therefore prepared to accept the evidence and opinions expressed by QICS in preference to the Hartwell assessment and make an order accordingly.
Orders
The Queensland Building and Construction Commission is ordered to pay Don Charles Fenwick the sum of $25,454.30, the costs of and incidental to the appeal in APL069-11, no later than 21 March 2014.
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