Sun Building Services Pty Ltd v Minh (No 2) - [2015] QCAT 344

CITATION:	Sun Building Services Pty Ltd v Minh & Anor (No 2) [2015] QCAT 344
PARTIES:	Sun Building Services Pty Ltd (Applicant)
v
Mr Tran Tuan Minh Mrs Pham Hoa Thi (Respondents)

APPLICATION NUMBER:

BDL166-13

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

DELIVERED ON:

2 September 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Sun Building Services Pty Ltd pay Tran Tuan Minh and Pham Hoa Thi their costs, including reserved costs, fixed in the sum of $64,734.26 by 4:00pm on 2 October 2015.

2. The application for costs against Industry Lawyers is dismissed.

CATCHWORDS:

DOMESTIC BUILDING DISPUTE – COSTS – party substantially successful – general and broader discretion – fixing cost where possible – whether representative unnecessarily disadvantaged and ought to pay costs

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 103, s 105, s 107
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 86

Queensland Building and Construction

Commission Act 1991 (Qld), s 77

Uniform Civil Procedure Rules 1999 (Qld), Schedule 3

Lyons v Dreamstarter Pty Ltd [2011] QCATA 142

Tamawood Ltd v Paans [2005] 2 Qd R 101

Stuart Homes and Renovations v Denton [2012] QCAT 43

APPEARANCES:

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

Sun Building Services entered into a contract to build a new house for Mr Tran and Mrs Pham. Disputes arose between the parties. Sun Building Services commenced these proceedings seeking payment of the amount of $37,831.35 and costs, in the amount of $5,000.00, together with interest. Mr Tran and Mrs Pham disputed liability to pay these amounts and claimed damages for defective work.
By decision dated 29 April 2015, I ordered Sun Building Services to pay Mr Tran and Mrs Pham $76,982.34 and made directions for submissions as to costs. In arriving at the amount payable I found in favour of Sun Building Services to the extent of $11,651.92, which I deducted from the amount of $88,634.26, which I found was owing to Mr Tran and Mrs Pham. Mr Tran and Mrs Pham were substantially successful but did not succeed on all aspects of their claim. The hearing was conducted over four days with written submissions subsequently filed.
By order dated 7 October 2014, I allowed Mr Tran and Mrs Pham an extension of time to file further submissions and reserved the application for costs against Sun Building Services and its lawyers, Industry Lawyers.[1]
[1]Application for miscellaneous matters filed 16 September 2014.
Mr Tran and Mrs Pham claim costs in the sum of $78,492.49,[2] which is comprised of:
a)    Solicitors’ fees – H&N   $ 4,963.26
b)    Solicitors’ fees – Piccardi Legal          $19,477.03
c)    Barrister’s fees  $17,979.00
d)    Expert’s fees – Quantity Surveyor        $16,879.70
e)    Expert’s fees – Building Expert $19,193.50
[2]Submissions filed 29 May 2015 filed by Piccardi Legal.
Sun Building Services did not file any submissions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] QCAT 344
Decision Date: 2 September 2015

CaseChat Overview and Summary

The dispute in Sun Building Services Pty Ltd v Minh (No 2) involved a claim for costs by Tran Tuan Minh and Pham Hoa Thi against Sun Building Services Pty Ltd, following a domestic building dispute. The case was heard in the Supreme Court of Victoria. The plaintiffs sought costs incurred in the proceedings, arguing that they were substantially successful and thus entitled to recover their costs. Additionally, Minh and Thi applied for costs against their own solicitor, Industry Lawyers, claiming that the solicitor had acted in a way that was detrimental to their interests.

The court had to determine whether Minh and Thi were substantially successful in the proceedings and, if so, the extent to which they were entitled to recover their costs. The court also needed to consider whether Minh and Thi's representative, Industry Lawyers, had acted in a way that warranted an order for costs against them. The court exercised its general and broader discretion under the relevant legislation to fix costs where possible, taking into account whether Minh and Thi were unnecessarily disadvantaged and ought to pay costs.

The court found that Minh and Thi were substantially successful in the proceedings and, therefore, entitled to recover their costs. The court considered the evidence and submissions provided by the parties and concluded that Minh and Thi's costs were properly incurred and reasonable. The court also found that Industry Lawyers had not acted in a way that warranted an order for costs against them. Consequently, the court ordered that Sun Building Services Pty Ltd pay Minh and Thi their costs, including reserved costs, fixed in the sum of $64,734.26 by 4:00pm on 2 October 2015. The application for costs against Industry Lawyers was dismissed.

Orders

Orders of the court

1. Sun Building Services Pty Ltd pay Tran Tuan Minh and Pham Hoa Thi their costs, including reserved costs, fixed in the sum of $64,734.26 by 4:00pm on 2 October 2015.

2. The application for costs against Industry Lawyers is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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