Thomas & Woolford v MintConstruct - [2014] QCAT 113

CITATION:

Thomas & Woolford v MintConstruct & Ors [2014] QCAT 113

PARTIES:	Anthony John Thomas Nicole Lynette Woolford (Applicants)
v
MintConstruct Pty Ltd Paul Chapman Housing Engineers Pty Ltd (Respondents)

APPLICATION NUMBER:

BDL035-13

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

DELIVERED ON:

21 March 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application by Housing Engineers Pty Ltd for costs is dismissed.

CATCHWORDS:

BUILDING MATTER – COSTS – WHERE respondents joined close to hearing - where matter settled by negotiation and hearing vacated – where joined party sort costs – where party unrepresented – where disbursements only available to claim – where no determination of liability – whether costs should be awarded

Queensland Building and Construction Commission Act 1991 (Qld) s 77
Queensland Civil and Administrative Tribunal Act 2000 (Qld) s 100

Cachia v Hanes [1994] HCA 14 followed
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 followed

von Reisner v Commonwealth of Australia (no 2) [2009] FCAFC 172
Webb v QBSA (No 2) [2012] QCAT 363
Deva v University of Western Sydney [2008] NSWCA 137
Kowal v Zoccoli [2002] VSCA 100
Walton v McBride [1995] NSWSC 17 referred

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

On 23 September 2013, on an application by MintConstruct Pty Ltd an order was made joining Paul Chapman and Housing Engineers Pty Ltd as second and third respondents to these proceedings.
A hearing was set for three days commencing 13 November 2013. On the advice of the Applicants and MintConstruct that the matter had settled, this hearing was vacated.
Housing Engineers was not a party to the settlement of the claim and now seeks its costs of being joined at such a late stage in the proceedings by MintConstruct.
In support of this application, submissions have been made by Housing Engineers and MintConstruct.
Housing Engineers has provided an invoice quantifying the costs it seeks at $38,424.70. Housing Engineers was self represented in these proceedings. The costs sought by Housing Engineers are broadly;
a)    Time spent by persons representing the company in site inspections, review of documents, preparation for interlocutory hearings, and for the final hearing (which did not proceed);
b)    Preparation of engineering report;
c)    Disbursements such as car parking, photocopying costs;
d)    Increases in PI Insurance premiums and excess payments as a result of being joined as a party.
The application for costs is determined for under s77(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[2], it is “in markedly different terms from s 100 of the QCAT Act”[3] which…

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.

Continue reading Thomas & Woolford v MintConstruct

Details

AGLC: Thomas & Woolford v MintConstruct [2014] QCAT 113
Case: [2014] QCAT 113
Decision Date

CaseChat Overview and Summary

In the case of Thomas & Woolford v MintConstruct & Ors, the applicants sought to recover costs associated with the late joinder of additional respondents to the proceedings. The matter was heard and determined by Member Gardiner of the Queensland Civil and Administrative Tribunal (QCAT) on the basis of written submissions. The applicants, Anthony John Thomas and Nicole Lynette Woolford, had initiated proceedings against MintConstruct Pty Ltd, Paul Chapman, and Housing Engineers Pty Ltd in relation to building matters. The additional respondents were joined late in the proceedings, and the case was settled before the scheduled hearing. Housing Engineers, which was not part of the settlement, applied for costs incurred due to the late joinder. The application was dismissed by the Tribunal.

The primary legal issue before the Tribunal was whether Housing Engineers was entitled to recover costs from MintConstruct for being joined as a respondent close to the hearing date, particularly when no determination of liability had been made. The Tribunal considered the principles of costs in building matters under the Queensland Building and Construction Commission Act 1991 (Qld) and the Queensland Civil and Administrative Tribunal Act 2000 (QCAT Act). Housing Engineers sought reimbursement for extensive legal costs and disbursements, while MintConstruct argued that only minor disbursements should be compensated.

The Tribunal's reasoning was grounded in the principle that costs should be awarded based on the just and reasonable cause of incurring those costs. The authorities cited, including Cachia v Hanes, Lyons v Dreamstarter Pty Ltd, and others, supported the view that legal costs generally do not include the time lost by a self-represented litigant. The Tribunal concluded that, as a self-represented party, Housing Engineers could only claim for actual disbursements, such as photocopying and parking fees, amounting to $217.00. The Tribunal found that without a determination of liability, it could not exercise its discretion to award costs as it could not ascertain that it was just and reasonable for one party to reimburse the other for incurred costs. Consequently, the application for costs was dismissed.

The Tribunal ordered that Housing Engineers' application for costs was dismissed, and each party was to bear its own costs. This decision underscores the importance of careful consideration when joining parties late in proceedings and highlights the limited circumstances under which costs may be awarded in such situations.

Orders