Salam & Anor v Henley Properties (QLD) Pty Ltd
[2016] QCATA 98
•4 February 2016
| CITATION: | Salam & Anor v Henley Properties (QLD) Pty Ltd [2016] QCATA 98 |
| PARTIES: | Muhammad Salam Seowmee Salam (Applicants/Appellants) |
| v | |
| Henley Properties (QLD) Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL429-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member O’Callaghan Member Deane |
| DELIVERED ON: | 4 February 2016 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Henley Properties (QLD) Pty Ltd is to pay Muhammad Salam and Seowmee Salam’s costs of and incidental to the appeal on the Magistrates Court scale of costs for claims over $50,000. 2. Muhammad Salam and Seowmee Salam’s costs are to be assessed by Hickey & Garrett, Legal Costs Assessors, on a short form basis. 3. Henley Properties (QLD) Pty Ltd is to pay Muhammad Salam and Seowmee Salam’s costs as assessed by Hickey & Garrett within 28 days from receipt by Henley Properties (QLD) Pty Ltd of the final decision or within 14 days of receipt by Henley Properties (QLD) Pty Ltd of the assessment made by Hickey & Garrett, whichever is the later. |
| CATCHWORDS: | APPEALS – DOMESTIC BUILDING DISPUTE – COSTS – where appeal allowed – whether in the interests of justice to award costs Donald Campbell & Co v Pollak (1927) AC 732 Latoudis v Casey [1990] HCA 59 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 |
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).
REPRESENTATIVES:
| APPLICANTS: | Muhammad Salam and Seowmee Salam represented by Mr Russell Ensby of CBP Lawyers |
| RESPONDENT: | Henley Properties (QLD) Pty Ltd represented by Mr Dale Cliff of Mills Oakley Lawyers |
REASONS FOR DECISION
Dr and Mrs Salam were successful in their appeal to set aside:
a) the decision of 3 September 2014 to award Henley Properties the amount of $17,779.53;[1] and consequently
[1] $21,417 recoverable by Henley Properties under s 84(4) of the Domestic Building Contracts Act 2000 (Qld) less $3,637.47 for damages for defective work found to be owing to the Salams.
b) the decision of 1 May 2015 as to costs.
The Salams now apply for an order that Henley Properties pay the costs of and incidental to the appeal.
The QCAT Act provides ‘Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceedings.’[2] It is not disputed that the Tribunal’s discretion to award costs in a building dispute[3] is a broader and more general discretion than the one conferred by the QCAT Act.[4] The Appeal Tribunal has recently held in the matter of Olindaridge Pty Ltd & Wagner v Tracey[5] that, for the purposes of considering an award of costs, a building dispute includes an appeal in relation to the claim or dispute.
[2] QCAT Act s 100.
[3] Queensland Building and Construction Commission Act 1991 (Qld) s 77(3)(h); Lyons v Dreamstarter Pty Ltd [2011] QCATA 142.
[4] QCAT Act s 100, s 102.
[5][2015] QCATA 175.
Henley Properties contend that as the matter has been remitted to the Tribunal for determination according to law that it is premature to determine costs of the appeal and that costs should be determined at the rehearing when the outcome is known, because ‘the ordinary rule that costs should follow the event cannot yet be applied’. Henley Properties concedes that this ‘rule’ does not automatically apply.[6] It contends that there is nothing in Henley Properties’ conduct in the appeal, which would require an award of costs.
[6] Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 at [26].
On balance, we find that the factors are in favour of the award of an order for costs in respect of the appeal.
In Lyons v Dreamstarter Pty Ltd[7] the then President stated at [11]
[7] [2012] QCATA 71.
The discretion to award costs starts with the proposition that it is just and reasonable that a party who causes another to incur costs should reimburse the other party for them[8]. Otherwise, the factors affecting the discretion will vary in each case.[9]
[8] Latoudis v Casey [1990] HCA 59.
[9] Donald Campbell & Co v Pollak (1927) AC 732 at 811-12.
The Tribunal, in exercising its general discretion to award costs, may consider the matters referred to in s 102(3) of the QCAT Act.
The Salams do not contend that Henley Properties acted in a way that unnecessarily disadvantaged them[10] nor do they seek to rely upon the nature and complexity of the appeal[11] nor the financial circumstances of the parties.[12]
[10] QCAT Act s 48(1)(a)-(g), s102(3)(a).
[11] Ibid s 102(3)(b).
[12] Ibid s 102(3)(e).
Essentially, they rely upon their success in setting aside the decision and contend that there was no disentitling conduct on their behalf. The relative strength of the Salams’ claims in the appeal is a factor in favour of an award of costs.[13] The Salams had strong grounds for overturning a number of findings at first instance.
[13] Ibid s 102(3)(c).
Ultimately, they succeeded in establishing a number of errors of law because of the inadequacy of the learned Member’s reasons. The inadequacy of reasons was not a matter over which Henley Properties had any influence. However, they also succeeded in establishing a number of other errors of law.
As the matter has been remitted for determination, the Appeal Tribunal is not in a position to assess whether the Salams’ ultimate success will be eroded through legal costs because the outcome is not yet known.[14] This is a factor in favour of deferring determination.
[14] Tamawood Ltd v Paans [2005] 2 Qd R 101; Stuart Homes and Renovations v Denton [2012] QCAT 43.
A factor, which may be relevant, is whether or not either party sought to protect itself through the making of offers to settle.[15] Henley Properties has not submitted that any such offers were made in support of its contention that it is premature to make a costs order.
[15] QCAT Act, s 105; Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’), r 86.
The Salams’ submit that in deciding whether they were successful on appeal for the purposes of awarding costs the tribunal is not bound to concern itself with the ultimate ‘value’ of the outcome of the appeal to the outcome at first instance. They rely upon Pertzel v Queensland Paulownia Forests Ltd.[16]In that case, the Court of Appeal made such a statement in the context that the issue upon which the appellant succeeded on appeal was an issue of public importance.
[16] [2008] QCA 344 at [5].
The Salams’ appeal was necessary to correct some errors although they were not necessarily issues of ‘public importance’. Henley Properties chose to oppose the appeal and as a consequence, the Salams incurred costs.
The Tribunal is to fix the costs if possible.[17] If it is not possible, the Tribunal may make an order requiring the costs be assessed.[18] The Salams did not provide evidence as to costs because they sought an order as to the appropriate scale of costs and an order for an assessment.
[17] Ibid s 107(1).
[18] Ibid s 107(2).
The Salams contend that in terms of quantum alone the appropriate court scale would be the Magistrates’ Court scale of costs but submit that apart from the Magistrates’ Court scale of costs for claims over $50,000 the scales are ill suited. The Tribunal has previously accepted that lump sum scales are less suitable for assessing costs than itemised scales.
We find that Henley Properties are to pay the Salams’ costs of and incidental to the appeal on the Magistrates Court scale of costs for claims over $50,000 and that the costs are to be assessed by Hickey & Garrett, Legal Costs Assessors, on a short form basis.
As the matter has been remitted for determination, we find that it is appropriate to defer payment of the amount of costs so assessed.[19]
[19] Ibid s 127(b).
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