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 Cachia v Hanes [1994] HCA 14 followed von Reisner v Commonwealth of Australia (no 2) [2009] FCAFC 172 |
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 starts with each party bearing its own costs.
[1]Lyons v Dreamstarter Pty Ltd [2011] QCATA 142.
[2]Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 at para 33.
[3]Lyons v Dreamstarter Pty Ltd [2012] QCATA 071 at para 10.
As His Honour the President of QCAT determined in the appeal decision of Lyons v Dreamstarter Pty Ltd[4] about s 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.”
[4]Lyons v Dreamstarter Pty Ltd [2012] QCATA 071 at para 11.
MintConstruct submits that an award of legal costs does not extend to time lost by a litigant in preparing or conduction its case. MintConstruct relies on the High Court decision in Cachia v Hanes[5] saying costs means reimbursement for work done or expenses incurred by a legal practitioner and compensation for the loss of time of a litigant in person cannot be said to constitute costs. Costs were never intended to compensate for any loss by a litigant. This decision is also authority to say that it is not permissible to treat as a disbursement any loss of earnings incurred by a litigant in presenting or conducting a case[6].
[5][1994] HCA 14 in the majority judgment at paragraphs 10 and 11.
[6]See von Reisner v Commonwealth of Australia (no 2) [2009] FCAFC 172 at para 8
MintConstruct further says that this approach has been accepted in QCAT[7] and numerous other courts and tribunals since the High Court decision in 1994[8].
[7]Webb v QBSA (No 2) [2012] QCAT 363 at para 26.
[8]Deva v University of Western Sydney [2008] NSWCA 137; Kowal v Zoccoli [2002] VSCA 100; Walton v McBride [1995 [1995] NSWSC 17.
MintConstruct submits the only amounts that can be claimed are copying and postage costs of $168 and car parking totalling $49 – altogether $217.00,
MintConstruct finally submits that it made numerous attempts to resolve the matter by negotiation but that Housing Engineers remained insistent that it would not contribute to any resolution. MintConstruct says in all the circumstances, its actions were reasonable and each party should bear their own costs.
Housing Engineers argues it should never have been joined as a party. Housing Engineers says the home owners and MintConstruct knew the Housing Engineers drawing SDH was generic, non-specific and not for construction. It says they knew they needed a site specific drainage plan but did not ask Housing Engineers for a plan. Housing Engineers alleges MintConstruct built without the necessary plan and when the drainage failed, MintConstruct tried to blame Housing Engineers based on the non-specific plan.
Housing Engineers says MintConstruct acted deceptively and irresponsibly as a builder and breached its duty of care. Housing Engineers says its resources and time was wasted, its reputation tarnished, insurance premiums and excess increased now and into the future and created great personal and family stress.
Discussion
On the authorities set out above and as a self represented litigant in the present costs claim, Housing Engineers would be only entitled to disbursements amounting to $217.00
Each side alleges liability should rest with the other for actions since the joinder of the extra respondents. There has been no determination of the facts in this matter as the applicants and MintConstruct have settled the action and the hearing vacated. Housing Engineers makes no submissions about the lateness of the joinder in relation to its costs application.
Without such findings on the evidence, it is not possible to for me to determine responsibility between the parties as alleged by each. Further, without such a determination, I am unable to exercise the discretion to award costs as I am unable to find that it is just and reasonable that one party has caused another to incur costs should be reimbursed.
This case demonstrates why there needs to be a very good reason to add parties to proceedings at a late stage and close to the hearing of the matter.
Section 42 of the QCAT Act speaks of a person being joined if they should be “bound” or “have the benefit” or their “interest may be affected” or if, for some other reason it is “desirable” for them to be joined.
Coming, as the application always does to the Tribunal, prior to any decision on facts in the matter, these are often difficult concepts in a joinder application.
In this matter there was no claim or counterclaim filed between MintConstruct and Housing Engineers. With the settling of the matter by the applicants and MintConstruct there remains no action between MintConstruct and Housing Engineers except the costs application and Housing Engineers make no submissions in this regard, referring only to the substance of the now settled matter, not to the cost application itself.
Despite Housing Engineers allegations, there is no evidence before me that Housing Engineers has been unnecessarily disadvantaged by this joinder as allowed by section 48 of the QCAT Act.
It may be prudent in joinder applications to direct parties to file formal applications and responses when a joinder order is made so that the circumstances of this matter are not repeated – to the detriment of the joined party.
In this matter, each party should bear its own costs. Housing Engineers’ costs application is therefore dismissed.
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