Ricchetti v Lanbuilt Pty Ltd (No 2)

CITATION: Ricchetti and Ors v Lanbuilt Pty Ltd (No 2) [2012] QCATA 259

PARTIES:	Clem Ricchetti Angela Ricchetti Bruno Ricchetti (Applicants/Appellants)
v
Lanbuilt Pty Ltd (Respondent)

APPLICATION NUMBER: APL023-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President
Joanne Browne, Member

DELIVERED ON: 12 December 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Fix the Respondent’s indemnity costs awarded pursuant to the order of 27 June 2012 at $14,709.85.

2.    The Applicants/Appellants must pay the Respondent’s costs in that sum.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – where dispute regarding building contract – where matter determined by the Tribunal – where applicants sought leave to appeal that decision – where Appeal Tribunal refused leave – where respondent sought costs in original proceedings and appeal – where Appeal Tribunal ordered applicants to pay respondent’s costs of and incidental to application for leave to appeal after specified date – whether it is possible for the Tribunal to fix costs

Queensland Civil and Administrative Tribunal Act 2009, ss 32, 107

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

Justice Alan Wilson, President

1. This dispute arose out of a building contract.  Lanbuilt began proceedings in 2007 against Mr and Mrs Ricchetti, and that matter was determined by a Senior Member of QCAT on 17 December 2010.  Mr and Mrs Ricchetti applied for leave to appeal that decision.  The application was heard in Townsville on 7 June 2011.  The Appeal Tribunal subsequently refused leave, with Reasons published on 15 September 2011.

2. Lanbuilt then sought costs in both the original proceedings and the appeal.  On 27 June 2012 the Appeal Tribunal ordered that Mr and Mrs Ricchetti pay Lanbuilt’s costs of and incidental to their application for leave to appeal from and after 11 May 2011, assessed on an indemnity basis.

3. Under s 107(1) of the QCAT Act, if the Tribunal makes a costs order it must ‘… fix the costs if possible’. It was ordered that the parties exchange written submissions about costs, as they have now done.

4. Section 107, on its face, requires the Tribunal (including the Appeal Tribunal) to consider and determine whether or not it is possible to fix costs. Consideration of that question will involve the exercise of a discretion, to be based upon the material supplied by the parties relevant to the possibility.

5. Lanbuilt’s solicitors have filed an affidavit to which is exhibited a schedule showing how the claim for costs is made up.  Lanbuilt’s solicitors claim $5,469.85 for their professional costs and outlays, based on an itemised account of the work done and the amount charged for each individual item.  In addition there is a claim for $9,240.00 for counsel’s fees, reflecting the memoranda of fees received from the barrister retained for Lanbuilt.

6. Mr and Mrs Ricchetti have filed…