Ward v Jordan (No 2)

[2020] QCAT 298

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ward v Jordan (No 2) [2020] QCAT 298

PARTIES:

MICHAEL WARD

(applicant)

v

KENNETH DONALD JORDAN T/AS KEN JORDAN SWIMMING POOLS

(respondent)

APPLICATION NO/S:

BDL180-16

MATTER TYPE:

Building matters

DELIVERED ON:

3 August 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

Kenneth Donald Jordan t/as Ken Jordan Swimming Pools is to pay Michael Ward costs fixed in the amount of $7,601.90 by 4pm 17 August 2020.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – where homeowner partly successful – where appropriate to fix costs

Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(h)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 107

Cruceru v Medical Board of Australia [2016] QCAT 111

Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
Stuart Homes and Renovations v Denton [2012] QCAT 43

Tamawood Ltd v Paans [2005] 2 Qd R 101

REPRESENTATION:
Applicant:	W Morgan of Morgan Mac Lawyers
Respondent:	No submissions received
APPEARANCES:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. By decision delivered 19 February 2020 I awarded Mr Ward damages for breach of contract by Mr Jordan in the amount of $15,131.15 (incl GST) and invited submissions on the question of costs.

2. Mr Ward applied for an order for costs in the amount of $9,750.70 as follows:

   (a)Legal costs in the sum of $5,000 (incl GST) pursuant to a fixed sum client agreement for work done to the filing of written submissions;

   (b)Legal costs of $1,320 for work done in connection with an affidavit and submissions on costs;

   (c)Filing fee of $315.70;

   (d)Fees paid to Mr Follett, who gave expert evidence on behalf of Mr Ward in the sum of $3,115.

3. No submissions from Mr Jordan have been received despite the time for their receipt having expired.

4. It is a well-established principle that the Tribunal’s discretion to award costs in a building dispute[1] is a broader and more general discretion than the one conferred by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).[2]

   [1]Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(h) (‘QBCC Act’); Lyons v Dreamstarter Pty Ltd [2011] QCATA 142.

   [2]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 (‘QCAT Act’).

5. The Tribunal, in exercising its general discretion to award costs, may consider the matters referred to in s 102(3) of the QCAT Act.

6. The relative strength of the claims is a factor in favour of an award of costs. Mr Ward was successful in obtaining a decision in his favour but not for the full amount of damages sought. 

7. I was satisfied that he had made out a claim for three of the six items of defective or incomplete work, being $7,260 (incl GST) for…