Terera v Clifford

[2016] QCAT 82

CITATION: Terera & Anor v Clifford [2016] QCAT 82

PARTIES:	Sandra Phyllis Terera and Robert Bohlar (Applicants)
v
Alan Clifford (Respondent)

APPLICATION NUMBER: BDL137-14

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member McLean Williams

DELIVERED ON: 12 April 2016

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The Applicants are to pay the costs of the Respondent, fixed in the sum of $3,712.17, within 28 days.

CATCHWORDS:

MINOR BUILDING WORKS - Claim for defective building work by Applicant homeowners - Counterclaim by Respondent tiling contractor for unpaid invoices -  Circumstances where Applicant wholly unsuccessful on claim and Respondent fully succeeding on counterclaim - Discussion of general principles governing costs in QCAT building matters

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s100
Queensland Civil and Administrative Tribunal Rules 2009 (Qld)
Queensland Building and Construction Commission Act 1991 (Qld), s77(3)

Lyons v Dreamstarter Pty Ltd [2012] QCATA 071
Latoudis v Casey (1990) 170 CLR 534 at 557
Tamawood Ltd & Anor v Paans [2005] QCA 111

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

1. This dispute involved a claim by the Applicants pursuant to s.77 of the Queensland Building and Construction Commission Act 1991 (‘QBCC Act’) for relief in relation to allegedly defective tiling work, as was performed by the Respondent at the Applicants’ home; as well as a counter-claim by the Respondent, in the amount of $1,631, being the balance of the moneys claimed to be owed to him, pursuant to the agreement between the Applicants and the Respondent for the performance of the tiling work.

2. The substantive matter was heard before me on 2 February 2015.

3. On the same day as the hearing I gave an ex tempore decision, dismissing the Applicants’ claim and awarding the Respondent the full amount of his counterclaim, plus interest, and costs.

4. On 13 February 2015 the Applicants filed an Application for leave to appeal and appeal against my decision. The appeal was not heard until 10 December 2015.  In reasons handed down on 5 February 2016 the Appeal Tribunal dismissed the substantive appeal, yet determined that the question of costs ought be remitted for my further consideration, according to law. 

5. Pursuant to directions made on 24 February 2016 the parties were ordered to file written submissions on costs, so that the question could be determined without the need for another oral hearing.   Both the Applicants and the Respondent filed submissions on costs on 18 March 2016.

6. These now are my reasons for decision on the matter of costs.

7. The Respondent seeks his costs in matter BDL137-14 pursuant to s 77(3)(h) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). The Respondent also points to s 107 of the QCAT Act, and says that the Tribunal must, if possible, fix the amount to be awarded as costs, and submits that these should now be fixed…