W&E Carlsen Builders v Tressider - [2014] QCAT 131

CITATION:

W&E Carlsen Builders v Tressider [2014] QCAT 131

PARTIES:	William George Carlsen t/as W & E Carlsen Builders (Applicant)
v
Steven Tressider Melissa Tressider (Respondents)

APPLICATION NUMBER:

BDL130-13

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

4 April 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

Steven Tressider and Melissa Tressider pay to William George Carlsen t/as W & E Carlsen Builders his costs thrown away by the adjournment of the expert’s conclave of 24 February 2014 fixed at $412.50 by 5 May 2014.

CATCHWORDS:

COSTS – whether respondent unnecessarily disadvantaged applicant – where respondent’s expert failed to attend conclave – where respondent claimed applicant delayed in providing expert report and alleged conflict of interest by applicant’s expert – where respondent failed to apply to adjourn conclave – where respondent unrepresented – whether respondent failed to act in own best interests

Queensland Civil and Administrative Tribunal Act 2009 ss 100, 102 and 107

Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226
James v Robins [2012] QCAT 400
Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 12
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412
Shorten v Bell-Gallie & Brisbane QCAT Registry [2014] QCA 57
Tyler v Queensland Building Services Authority (No.2) [2010] QCAT 589
Urguhart v Partington [2013] QCAT 133

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 (QCAT Act).

REASONS FOR DECISION

What is this Application about?

W & E Carlsen Builders claims Mr Steven Tressider and Mrs Melissa Tressider owe $82,004.04 for building work. The Tribunal has made comprehensive directions throughout the application to facilitate the expeditious resolution of the dispute.
One of these directions was to order an Experts’ Conclave in Cairns on 24 February 2014.[1] Because Mr and Mrs Tressider’s expert did not attend, the conclave was adjourned.
[1]Directions dated 6 December 2013 at paragraph 4, confirmed in Directions dated 24 February 2014 at paragraph 3.
The Tribunal has therefore ordered that the costs thrown away of the adjournment be determined.[2]
[2]Directions dated 24 February 2014 at paragraph 5.

What is the Tribunal’s jurisdiction to award costs?

Costs in the Tribunal are not awarded as a matter of course. Each party must bear their own costs[3], unless the interests of justice require the Tribunal to order a party to pay the costs of another party.[4]
[3]Queensland Civil and Administrative Tribunal Act 2009, section 100.
[4]Queensland Civil and Administrative Tribunal Act 2009, section 102.
There is therefore a strong indicator against awarding costs:
Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders…

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 W&E Carlsen Builders v Tressider

Details

AGLC: W&E Carlsen Builders v Tressider [2014] QCAT 131
Case: [2014] QCAT 131
Decision Date: 4 April 2014

CaseChat Overview and Summary

W&E Carlsen Builders brought a claim against Steven and Melissa Tressider, who were the defendants, in relation to a dispute about a building contract. The matter was heard by the Magistrates Court of Victoria. The primary issue before the court was whether the Tressiders unnecessarily disadvantaged the Carlsens by failing to take appropriate steps during the proceedings, particularly at an expert conclave. The Carlsens argued that the Tressiders' expert failed to attend the conclave, and the Tressiders claimed that the Carlsens delayed in providing their expert report and alleged a conflict of interest with the Carlsens' expert. The Tressiders did not apply to adjourn the conclave, despite being unrepresented. The Carlsens contended that the Tressiders' failure to act in their own best interests led to unnecessary costs.

The court considered the conduct of both parties and the impact of the Tressiders' decision not to seek an adjournment. It was noted that the Tressiders were unrepresented and did not take steps to address the absence of their expert or seek an adjournment. The Carlsens did not unreasonably delay in providing their expert report, and the allegation of a conflict of interest was not substantiated. The court held that the Tressiders' failure to act in their own best interests resulted in unnecessary costs being incurred by the Carlsens. Therefore, the Tressiders were ordered to pay the Carlsens' costs associated with the adjournment of the expert conclave.

The final orders of the court required Steven and Melissa Tressider to pay William George Carlsen, trading as W & E Carlsen Builders, the costs incurred due to the adjournment of the expert conclave. The amount of $412.50 was to be paid by 5 May 2014. This decision underscores the importance of parties acting in their own best interests and the potential consequences of failing to do so, particularly in cases where unrepresented parties are involved.

Orders

Orders of the court

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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