W & E Carlsen Builders v Tresidder (No 2)

CITATION:	W & E Carlsen Builders v Tresidder (No 2) [2015] QCAT 345
PARTIES:	William George Carlsen t/as W & E Carlsen Builders (Applicant)
v
Steven Tresidder Melissa Tresidder (Respondents)

APPLICATION NUMBER: BDL130-13

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

RESERVED DECISION OF: Member Gordon

DELIVERED ON: 2 September 2015

DELIVERED AT: Brisbane

ORDERS MADE:

Steven Tresidder and Melissa Tresidder shall forthwith pay to William George Carlsen t/as W & E Carlsen Builders $29,517 for costs being 60% of his fair recoverable costs.

CATCHWORDS:

Costs – domestic building dispute – substantial amount owed to builder - successful set-off and counterclaim reducing the amount owed - builder successful in application for approval of payment for informal variations – whether costs of set-off and counterclaim should be awarded separately – what costs order should be made – issue estoppel arising from interlocutory costs orders

Queensland Civil and Administrative Tribunal Act 2009 (2009) s 107
Queensland Building and Construction Commission Act 1991 (Qld) s 77(3)(h)
Uniform Civil Procedure Rules 1999 r 702

Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
Lyons v Dreamstarter Pty Ltd [2012] QCATA 071

APPEARANCES:

The matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. This is the costs decision following upon the tribunal’s decision of 30 June 2015[1] in which Mr and Mrs Tresidder were ordered to pay Mr Carlsen the sum of $62,425.07.

   [1]William George Carlsen t/as W & E Carlsen Builders v Tresidder [2015] QCAT 260.

2. This decision concerns what may be the appropriate costs order to make when a home owner is successful in showing that the builder’s work was incomplete and defective, but even after the allowances and deductions are made to reflect that, the home owner still owes the builder a substantial amount of money.  This decision also considers whether a builder may recover costs for a claim for payment for informal variations when the builder cannot recover these without the tribunal’s approval.  This decision also deals with the extent to which an interlocutory order for costs might be binding in respect of the work done at that interlocutory stage when considering a final costs order.

3. A number of different types of costs orders have been mooted in the submissions, from a costs order only in favour of Mr Carlsen to a costs order only in favour of the Respondents, cross costs orders or no costs order.

4. The claim arose from the building of an extension to Mr and Mrs Tresidder’s house in Cairns by Mr Carlsen, a licensed builder who was engaged to do this work under a formal contract.[2]   During the course of the work the Respondents asked for variations to the work.  The statutory provisions applicable at the time required the variations to be in writing and signed.  At first this was done, but after that the formalities were dispensed with. 

   [2]On the Master Builders Residential…