Richard Brandon Kingwill and Kerry Kingwill v Maxicorp Pty Ltd
[2013] QCAT 711
•13 November 2013
| CITATION: | Richard Brandon Kingwill and Kerry Kingwill v Maxicorp Pty Ltd [2013] QCAT 711 |
| PARTIES: | Richard Brandon Kingwill and Kerry Kingwill (Applicant) |
| v | |
| Maxicorp Pty Ltd (Respondent) |
| APPLICATION NUMBER: | BDL213-12 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Deane |
| DELIVERED ON: | 13 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Richard Brandon Kingwill and Kerry Kingwill are to pay Maxicorp Pty Ltd costs fixed in the amount of $4,715.34 (incl GST) by 4pm 24 January 2014 |
| CATCHWORDS: | COSTS – building dispute - where settlement offers made but not accepted Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 61, 100, 102, 105, 107, 124 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 Demac Homes (Qld) Pty Ltd v Queensland Building Services Authority & Ors [2011] QCAT 331 |
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
Mr and Mrs Kingwill commenced proceedings against Maxicorp seeking $19,364 for damages arising out of a domestic building contract. Mr and Mrs Kingwill were largely unsuccessful in proving their claims and only established an entitlement to $500. I made directions in relation to submissions for costs by either party.
Maxicorp’s submissions were received by the Tribunal about 8 days after the time provided for in the directions. No express extension of time had been sought. Maxicorp advised that it had no objection to the time for Mr and Mrs Kingwill’s submissions in response being extended and submitted no prejudice would flow from the late filing.
Mr and Mrs Kingwill made the following submissions in response to Maxicorp’s claim:
a)the costs claim cannot be considered as it was not filed and served in accordance with the decision of 20 August 2013;
b)there are no legislative provisions that allow for the late claim to now be considered;
c)in the absence of an alternative order the decision of 20 August 2013 disposes of the application;
d)any consideration of the late claim compromises their ability to lodge an application for leave to appeal; and
e)in the alternative they should be granted a 2 week extension to consider making additional submissions from the time which the Tribunal provides an explanation as to why the late submissions would be considered.
Mr Kingwill contends that they have been prejudiced by the late costs submissions because a factor in deciding whether to appeal the decision of 20 August 2013 was whether a costs application had been made. The time for appealing the substantive decision expired prior to the costs submissions being filed.
Mr and Mrs Kingwill contend that the time for appeal expired on 19 September 2013 so that if the cost submission had been received on 17 September 2013 as directed they could have considered this matter.
The Tribunal has power to give relief from procedural requirements even if the time has passed.[1] The Tribunal may act on the application of a party or on its own initiative.[2]
[1] QCAT Act s 61.
[2] Ibid s 61(4).
The direction of 20 August 2013 in relation to costs did not impose any type of ‘self-executing order’ in the nature of a further order that no extensions of time would be considered by the Tribunal nor an order that if no submissions were received by the given date that no order as to costs would be made.
A party has rights to appeal on a question of law or if leave is obtained on a question of fact or a question of mixed law and fact.[3] Whether or not Maxicorp made an application for costs is not relevant to whether there was an appealable error in the decision of 20 August.
[3] Ibid s 142.
If Mr and Mrs Kingwill consider that there is an appealable error then they could apply for an extension of time within which to file an appeal or application for leave.
It is a well established principle that the Tribunal’s discretion to award costs in a building dispute[4] is a broader and more general discretion than the one conferred by the QCAT Act.[5]
[4] Queensland Building Services Authority Act 1991 (Qld) s 77(2)(h)); Lyons v Dreamstarter Pty Ltd [2011] QCATA 142.
[5] QCAT Act ss 100, 102.
A factor relevant to the exercise of the discretion is whether a party has not accepted an offer of compromise and the ultimate decision was not more favourable.[6] In this case Maxicorp made a significantly more favourable offer than the ultimate decision prior to the proceedings commencing.[7]
[6] Ibid s 105.
[7] Offer to Settle dated 24 February 2012 - $6,500 to be paid to the Kingwills; proceedings commenced 25 June 2012.
The Tribunal has previously accepted that the making of a settlement offer may be relevant to the exercise of the discretion to award costs where an offer is made at a time when,
“all the relevant facts are known [so] the recipient can make an informed decision having regard to the consequences of non-acceptance.”[8]
[8] Demac Homes (Qld) Pty Ltd v Queensland Building Services Authority & Ors [2011]
QCAT 331 at [39].
I am not satisfied that all the relevant facts were necessarily known to Mr and Mrs Kingwill at the time of the first offer.
Maxicorp made a further written offer which was open for acceptance up until the first date of the hearing.[9] The first day of the hearing was 15 July 2013.
[9] Offer to Settle dated 19 October 2012 - $3,000 to be paid to the Kingwills.
I am satisfied that Mr and Mrs Kingwill were in a position to make an informed decision in relation to this offer. The second offer was made after Maxicorp’s Response and initial statement of evidence had been filed[10] and after the parties attended a compulsory conference on 11 October 2012. The second offer was rejected on the same day it was made.
[10] Statement of Mr Marshall affirmed 21 September 2012; filed 27 September 2012.
The second offer was made under Rule 86 of the QCAT Rules 2009. The second offer was clearly more favourable to Mr and Mrs Kingwill than the ultimate decision. In those circumstances the Tribunal has the discretion to award the party who made the offer all reasonable costs incurred by that party in conducting the proceeding after the offer was made.
In Ricchetti v Lanbuilt Pty Ltd [2012] QCATA 111 and in Lanbuilt Pty Ltd v Ricchetti [2012] QCAT 209 it was accepted that the phrase “all reasonable costs incurred” permitted an order on an indemnity basis to put Lanbuilt in the position it would have been had the offer of settlement been accepted.
Maxicorp’s director represented Maxicorp at the hearing as Maxicorp did not apply for leave for legal representation. From an early time Mr and Mrs Kingwill were put on notice that Maxicorp had engaged lawyers to assist.[11] Maxicorp incurred legal costs in seeking advice and assistance. If Mr and Mrs Kingwill had accepted the offer of 19 October 2012 Maxicorp would not have incurred any further costs.
[11] The Response dated 25 July 2012 was signed by Hemming & Hart.
In the circumstances I order that Mr and Mrs Kingwill pay Maxicorp’s costs on an indemnity basis on and from 20 October 2012.
The Tribunal is to fix the costs if possible.[12]
[12] QCAT Act s 107.
Maxicorp’s submission attaches invoices rendered by its lawyers, Hemming & Hart, in the sum of $9,163.10. It also states that work in progress in the sum of $1,240 will be invoiced at the end of September 2013. The invoices attach an itemisation of the nature of work performed and the dates upon which the work was performed. I have reviewed the charges for work performed on and from 20 October 2012 to 10 December 2012. They appear reasonable. There is no similar itemisation for the work in progress claimed in the sum of $1,240. However the amount does not appear unreasonable for work performed on and from 11 December 2012 to September 2013.
In the circumstances I fix the amount of costs payable by Mr and Mrs Kingwill to Maxicorp in the amount of $4,715.34 (incl GST) calculated as follows:
a)Invoice 31 October 2012 – I allow items performed on 22 October and 29 October 2012 in the sum of $102.30 (incl GST)
b)Invoice 30 November 2012 - $2,718.76 (incl GST)
c)Invoice 19 December 2012 - $654.28 (inc GST)
d)Work in Progress - $1,240 (incl GST)
Mr and Mrs Kingwill have informed the Tribunal that due to an illness in the family they expect to be absent from Australia for some time and may only return in early 2014. An extended period within which to pay the amount owing is therefore appropriate.
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