Sallur v Howse
[2014] QCAT 475
•22 September 2014
| CITATION: | Sallur v Howse [2014] QCAT 475 |
| PARTIES: | Kenneth John Sallur Karen Ann Sallur (Applicants) |
| v | |
| Anthony Bruce Howse Betty May Howse (Respondents) |
| APPLICATION NUMBER: | BDL161-13 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Gardiner |
| DELIVERED ON: | 22 September 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Mr and Mrs Sallur pay Mr and Mrs Howse the sum of $10,274.78 in respect of the costs incurred in this matter within 14 days. |
| CATCHWORDS: | BUILDING MATTERS – COSTS – where both parties unrepresented – where matter had many expert reports – where order made in favour of home owner – whether costs should be awarded Queensland Building and Construction Commission Act 1991 (Qld), s 77 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142; followed Lyons v Dreamstarter Pty Ltd [2012] QCATA 071; followed |
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
Mr and Mrs Sallur brought an application to QCAT in a building dispute between themselves as builder and their clients Mr and Mrs Howse.
On 14 July 2014 this Tribunal handed down a decision in this building dispute in favour of Mr and Mrs Howse.
Mr and Mrs Howse had made a costs application in the event of the successful outcome. A timetable for submissions was directed and the application for costs was set to be heard on the papers. This is a consideration of that application.
Costs are determined under section 77(2)(h) of the Queensland Building and Construction Commission Act 1991 (Qld).
The effect of this section, which modifies the general position under the QCAT Act, is to give the Tribunal a broad general power to award costs in cases caught by these enabling provisions.[1] This enabling Act allows that while the power must be exercised judicially it is ‘in markedly different terms from s 100 of the QCAT Act’[2] which starts with the parties bearing their own costs.
[1]Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 at [33].
[2]Lyons v Dreamstarter Pty Ltd [2012] QCATA 071 at [10].
As his Honour the then President of QCAT determined in the appeal decision of Lyons v Dreamstarter Pty Ltd[3] about section 77,
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. Otherwise the factors affecting the discretion will vary in each case.
[3]Ibid at [11].
Mr and Mrs Sallur filed an application for a minor civil dispute in the Roma Courthouse. This was transferred to QCAT as a building matter under a practice direction of this Tribunal and became a domestic building dispute.
The matter was heard by video link with the Roma courthouse on 23 June 2014. Neither party was legally represented. Mr and Mrs Howse had applied to be represented in the proceedings but this application had been refused. Mr and Mrs Howse did have a solicitor assist them with the necessary documents and attend the hearing with them but in an advisory capacity only.
As required by sections 28 and 29 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) this tribunal endeavoured to assist the parties in the presentation of their applications. As recorded in the earlier reasons, a total of four expert reports were provided as part of the evidence. Only one expert had been arranged by the parties to attend and so the Tribunal took it upon itself to contact the lead report writer for the applicants. Both the main report writers relied upon by the parties were then available to give concurrent evidence at the hearing.
It fell to this tribunal to determine which expert’s report was preferred and to make determinations after the expert evidence had been evaluated.
Mr and Mrs Howse now seek costs as follows:
i) Paid legal fees from a solicitor’s firm it engaged to assist with the hearing ($3,564.75)
ii) Unbilled legal fees from a solicitor’s firm it engaged to assist with the hearing ($3928.00)
iii) Cost of report of Graeme Mills ($16,025.63)
iv) Cost of excavation of piers by Roma Bobcat Hire ($2,312.65).
Should Mr and Mrs Howse be paid the costs it claims?
In their submissions in support of this application, Mr and Mrs Howse make the following submissions:
i) They were wholly successful on the basis that the work of Mr Sallur was defective;
ii) The proceedings by Mr and Mrs Sallur were ill-conceived as they were in possession of a QBSA report indicating the complaints were category one defects;
iii) the evidence of the experts who personally inspected the work was preferred;
iv) an offer was made to the applicants on 15 January 2014 for the payment of a sum to settle the matter. The award to Mr and Mrs Howse after the hearing was more favourable that the offer;
v) the expert evidence was reasonable and necessary for the hearing;
vi) Mr and Mrs Howse could chose to have legal advice for the matter even though they were refused leave to be legally represented and because the matter was determined on expert evidence, it was reasonable for them to obtain this legal advice to prepare for the hearing.
In their reply, Mr and Mrs Sallur submit:
i) On the basis of sworn evidence from Mrs Sallur, the Solicitor’s offer to settle was not received by them until one day after the offer had lapsed and that after enquiries as to whether the offer remained open, no advice was ever received by her for the Solicitor assisting Mr and Mrs Howse;
ii) Mr and Mrs Sallur claimed $16,290.00 for the final payment and this was set off against the claim of Mr and Mrs Howse. It is therefore not correct to say that they were wholly successful, in fact both the original claim of Mr and Mrs Sallur and counter claim of Mr and Mrs Howse succeeded;
iii) Expert reports and the excavation and bobcat hire were engaged directly Mr and Mrs Howse and paid by them. They are therefore not classified as solicitor’s disbursements (as they were not paid to the solicitor directly) and therefore not costs in these proceedings;
iv) The cost of the bobcat hire was part of the rectification work to determine defects in order to obtain a final certification from the Regional Council and not costs of legal work.
Discussion
Because of the confusion over the dates of the offer, I do not place weight on Mr and Mrs Sallur not accepting the offer in circumstances where they thought it had lapsed.
I am satisfied that the parties had the right to have the competing claims heard and determined and there was a live argument between them.
I do not agree with the submission that both parties were wholly successful. Mr and Mrs Sallur were not paid their final payment under the contract as claimed by them and as well as that, further costs were visited on them for rectification of the works. This is not in my view a successful outcome for them.
Considering the legal costs sought by Mr and Mrs Howse, I am not satisfied that these costs should be allowed against Mr and Mrs Sallur. Legal representation was not granted under the QCAT Act. Mr and Mrs Howse had the right to seek assistance but this was in the knowledge that the right to formal representation in this tribunal had been refused.
I see no reason to visit these costs now on Mr and Mrs Sallur, even though they were unsuccessful in their claim.
The High Court decision in Cachia v Hanes[4] speaks in detail about the entitlement of an unrepresented party to “out of pocket expenses” where these are necessary or proper costs in the proceedings.
[4][1994] HCA 14 see for example the judgment of Justices Toohey and Gaudron from paragraph 22 onwards.
As both parties submit, this was a matter that was substantially based on expert evidence. Mr Mill’s report was a part of the case presented by Mr and Mrs Howse. I am satisfied that this disbursement was necessary and proper in the conduct of their case before me. The engagement of the excavation and bobcat was necessary to inform the report and rectification costs. I am satisfied that this hire is also a proper cost.
On the basis of the High Court authority above, I am not satisfied it is necessary for disbursements accepted as necessary or proper in a matter to be paid by or through a legal representative.
I will now address the quantum of theses costs.
Mr and Mrs Howse claim $16,025.63 for the cost of Mr Mills report and in support of this, provide a detailed tax invoice. It was a very detailed invoice and there are numerous attendances, review, variations to the report listed and costed.
Mr and Mrs Sallur say that if I am minded to allow the costs of the report, in the circumstances of an argument over a shed, what would be reasonable would be to allow one site inspection, and one written report but no report on costings for rectification work. They submit I should allow $3000.00.
I agree that the work undertaken by Mr Mill is very detailed and seems disproportionate to the value of the argument, but I do not accept that costs of rectification should not be included. These costings were integral to my decision.
Having examined the invoice supplied, I disallow all items dated 17 February to 28 February 2014 as variations and quote items not in my view reasonable for the circumstances of this matter. I allow the costs of attendance and preparation for the hearing of the matter. The report cost after the deductions is set at $7,962.13.
The excavator and bobcat hire is claimed by Mr and Mrs Howse at a total amount of $2,312.65. Mr and Mrs Sallur submit this amount if allowed by me should be set at $858.00, being 4 hours of excavator time and 3 hours of bobcat time to expose and backfill the shed piers. Mrs Sallur give this evidence on the rates she has been informed by Mr Sallur are the standard for the area.
The invoice supplied to this hire shows that the price has been costed on the rates supplied by Mrs Sallur as common to the area. What is in dispute is the time and the supply of loam as backfill. I have no reason to not accept the time as set out by the independent operator of the hire equipment and will allow the invoices as supplied at $2,312.65.
I am satisfied it is just and reasonable to exercise my discretion to award costs as itemised above at the amount for assessed outgoings of $10,274.78 to be paid by Mr and Mrs Sallur to Mr and Mrs Howse within 14 days of this order.
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