Ricchetti v Lanbuilt Pty Ltd (No 2)

[2012] QCATA 259

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 submissions on their own behalves which, with respect, largely revisit the submissions they made in respect of the earlier question whether or not Lanbuilt should be awarded its costs in the appeal.  Nothing in the submissions appears to dispute the various itemised amounts set out in the schedule of professional costs and outlays from the solicitors or in counsel’s memoranda of fees.

7. In a sense the Tribunal is required, when determining whether or not it is possible to fix costs, to undertake something approaching an informal costs assessment.  The solicitor’s fees set out a large number of itemised charges for telephone attendances, correspondence, and care and consideration.  The individual item charges do not present as excessive or unreasonable and the claim for care and consideration is, it appears, 25%.  The items charged by counsel involve reading and preparation fees and, of course, the appearance at the appeal hearing.  Again, these appear to be reasonable.  Indeed, it may be observed that the charges by both the solicitor and the barrister impress as tolerably modest.

8. The award was for indemnity costs.  I am satisfied, having perused the solicitor’s affidavit and counsel’s fee memoranda, that it is possible to assess costs and, further, that they may reasonably be assessed at the amount claimed: $14,709.85.  It is appropriate to order that costs in that sum be paid by the applicants to the respondent.

Ms Joanne Browne, Member

1. I have had the advantage of reading the reasons of the President in draft.  I agree with them, and with the orders he proposes.