A & S Constructions Pty Ltd v Charles Jackson & Anor [2024] QCAT 341

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: A & S Constructions Pty Ltd v Charles Jackson & Anor [2024] QCAT 341 PARTIES: A & S CONSTRUCTIONS PTY LTD (ACN 153C643 639) (applicant) v CHARLES JOHN JACKSON (respondent) JANELLE CLARE JACKSON (respondent) APPLICATION NO/S: BDL054-22 MATTER TYPE: Building matters DELIVERED ON: 2 August 2024 HEARING DATE: 15 July 2024 HEARD AT: Brisbane DECISION OF: Member S M Burke ORDERS: The Respondent is ordered to pay the Applicant the costs thrown away by the adjournment of the hearing on 19 May 2023 in the amount of $3,366.00 (incl. GST) within 28 days. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS OF ADJOURNMENT OF HEARING – costs “thrown away” - costs ordered to be paid on an indemnity basis or as agreed – evidence of costs thrown away – fixing of such costs Arcon Constructions Pty Ltd v Queensland Building Services Authority [2013] QCAT 573 Edelman v Badower [2010] VSC 427 Thornton v Lessbrook Pty Ltd (No 2) [2010] QSC 363 Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 JM Kelly Builders Pty Ltd v Murphy [2003] QSC 23 Thompson v Body Corporate for Arila Lodge & Anor [2017] QCATA 152 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 1 of 9 -- 2 REASONS FOR DECISION [1] On 19 May 2023, the Applicant and the Respondents attended at the Tribunal for the final hearing of the above matter. [2] According to the Applicant, it attended fully prepared with all its witnesses in attendance. [3] The Respondent sought an adjournment of the final hearing for a period of at least 6 months due to the Respondents’ desire to submit further evidence by way of a further statement by the Respondent, Charles Jackson, and additional expert evidence. [4] The following directions were made by the Tribunal on 19 May 2023: (a) The previous directions of the Tribunal be vacated. (b) The Respondent be given leave to file the further statement of Charles Jackson dated 19 May 2023. (c) The hearing be adjourned to dates to be fixed. (d) The Respondents file and serve any further material that they intend to rely upon at the adjourned hearing, including any expert evidence, by 11 August 2023. (e) The Applicant serve and file any further material in response by 13 October 2023. (f) The matter be set down for further directions on a date and time to be listed not before October 2023, including but not limited to, the setting of further hearing dates. (g) The parties be at liberty to apply on seven (7) days notice. (h) The Respondents pay to the Applicant the costs thrown away by the adjournment of the hearing on 19 May 2023 to be assessed on an indemnity basis or as agreed. [5] On 26 June 2023, the Applicant’s solicitor provided a revised costs assessment which included the applicable hourly rates for the costs alleged to have been incurred and thrown away as a result of the adjournment allowed by the Tribunal.1 [6] The costs sought are set out in the table below: DATE ITEM DESCRIPTION OF ITEM TIME FEES ex. GST WORK 20.4.2023 1 QCAT Directions hearing for trial date and witnesses 30 $250.00 Solicitor 1 Table of costs incurred attached to the letter from WGC Lawyers to Devenish Lawyers dated 26 June 2023. -- 2 of 9 -- 3 21.4.2023 2 Preparation for trial (drafting submissions) 24 $100.00 Paralegal 26.4.2023 3 Preparation for trial (drafting submissions) 42 $175.00 Paralegal 28.4.2023 4 Email to Applicant regarding trial 6 $50.00 Solicitor 11.05.2023 5 QCAT application for witness attendance by video 18 $60.00 Paralegal 11.05.2023 6 Telephone to witness re attendance at QCAT 6 $20.00 Paralegal 11.05.2023 7 Telephone ensuring witness attendance by video 6 $20.00 Paralegal 12.05.2023 8 Preparation for trial (drafting submissions) 54 $225.00 Paralegal 12.05.2023 9 Preparation for trial (cross examination of Respondents witnesses) 120 $1,000.00 Solicitor 15.05.2023 10 Preparation for trial (research for submissions) 78 $325.00 Paralegal 15.05.2023 11 Preparation for trial (drafting submissions) 102 $425.00 Paralegal 15.05.2023 12 Email correspondence to Applicant 12 $50.00 Paralegal 15.05.2023 13 Telephone attendance on Applicant re trial 12 $50.00 Paralegal 15.05.2023 14 Preparation for trial (cross 240 $2,000.00 Solicitor -- 3 of 9 -- 4 examination of Respondents’ witnesses) 16.05.2023 15 Preparation for trial (drafting submissions) 180 $750.00 Paralegal 16.05.2023 16 Preparation for trial (re- examination of Applicant’s witnesses) 240 $2,000.00 Solicitor 17.05.2023 17 Preparation for trial (drafting submissions) 18 $75.00 Paralegal 17.05.2023 18 Preparation for trial (re- examination of Applicant’s witnesses) 210 $1,750.00 Solicitor 18.05.2023 19 Preparation for trial (drafting submissions) 210 $575.00 Paralegal 18.05.2023 20 Preparation for trial (cross- examination of Respondent’s witnesses) 90 $750.00 Solicitor 19.05.2023 21 Attendance at QCAT for Trial 180 $1500.00 Solicitor 19.05.2023 22 Attendance at QCAT for trial 180 $750.00 Paralegal 19.05.2023 23 Attendance at QCAT for Trial $560.00 Witness TOTAL ext GST $13,460.00 OUTLAYS $208.60 REDUCTIONS $3,417.15 AMOUNT excl. GST $10,251.45 AMOUNT CLAIMED incl. GST $11,276.60 -- 4 of 9 -- 5 [7] The total award of costs sought is the sum of $11,276.60 including GST. [8] The parties have been unable to agree on the costs to be paid to the Applicant with the Respondents submitting that the proper quantum of the Applicant’s costs, on an indemnity basis, thrown away by the adjournment of the hearing on 19 May 2023 relates to items being $3,060.00 plus GST. Legislation and Legal Issues [9] Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that as a general rule each party bear its own costs. [10] Section 102 of the QCAT Act provides that costs can be awarded if the Tribunal considers that the interest of justice requires it to make such an order. [11] Section 107 of the QCAT Act contemplates that the Tribunal will itself fix costs wherever possible. The Tribunal is not bound by any particular scale of costs or by any rules of assessment or usual practice as to the basis of assessment, standard or indemnity. The aim is to make an award which is reasonable and appropriate in the circumstances.2 [12] In the case of indemnity costs, Rule 703(3) of the Uniform Civil Procedure Rules 1999 (Qld) provides that the test is whether the costs are: all costs reasonably incurred and of a reasonable amount, having regard to: (a) the scale of fees prescribed for the court; (b) any costs agreement between the party to whom the costs are payable and the party’s solicitor; and (c) charges ordinarily payable by a client to a solicitor for the work. [13] The Tribunal ordered that the Respondents pay the Applicant’s costs thrown away as a result of the adjournment sought by the Respondent on the first day of the hearing. The reason for the adjournment was for the delivery of further material by the Respondents. [14] What is determined as the “costs thrown away’ has been considered by the Courts in various jurisdictions. In Queensland Building Services Authority v Mahony,3 McGill SC DCJ considered the term “costs thrown away” as follows:4 The term “thrown away’ is often used to describe wasted costs, for example where an adjournment of a trial is granted on the basis that the costs thrown away will be paid by the party seeking the adjournment. Such an order carries the costs of doing by way of preparation for trial those things which will have to be done again as a result of the trial having changed. An example is arrangements made with witnesses to attend to give evidence on a particular day, but any item of preparation which will have to be repeated, or would ordinarily be repeated, if the trial is put off to a later date will be covered by such an order, On the other hand, preparation which will be able to be used at the new trial date as well as at the original trial date will not be; a good example 2 Arcon Constructions Pty Ltd v Queensland Building Services Authority [2013] QCAT 573. 3 [2012] QDC 226. 4 At [13]. -- 5 of 9 -- 6 is the cost of preparing a bundle of agreed documents to be put before the trial judge. [15] In The Fashion Warehouse Pty Ltd v Pola,5 Williams J held6 it was for the Taxing Master in the exercise of his discretion to determine what costs were actually “thrown away”. All that those cases establish is that or costs to be allowed as “costs thrown away”, they must have been, in the opinion of the Taxing Officer, reasonably incurred and relate to work done which has become wasted in the circumstances. Submissions [16] The Applicant contends that it is entitled to the costs thrown away as outlined in paragraph [6] hereof in the sum of $11,276.60 plus GST. At the root of the Applicant’s submission is the fact that the Respondents did not apply for an adjournment of the hearing until the start date of the final hearing despite being made aware in February 2023 that no evidence had been supplied by the Respondents to support the allegations made in its case.7 [17] The Applicant submits that the following costs incurred between 20 April 2023 and 19 May 2023 have been thrown away: (a) general preparation costs relating to preparation for the final hearing relying on evidence filed in statements to May 2023 (general preparation costs); (b) preparation of cross-examination of the Respondents’ witnesses relying on evidence in the filed statements (cross-examination preparation costs); (c) preparation for, and conferences with, witnesses (witness conference costs); (d) attendance at the Tribunal for the final hearing (attendance costs). [18] The Respondents submit that item 1 does not relate to a cost incurred by the Applicant which was thrown away as a result of the adjournment. Item 1 relates to a Directions hearing on 20 April 2023 which the Respondents say would have been incurred regardless of the adjournment in May 2023. Accordingly, item 1 is not a cost incurred as a result of the adjournment. [19] The Respondents submit that items 2, 3, 8, 10, 11, 15, 17 and 19 relate to preparation which will be able to be used at a new trial date and thus have not been wasted. It is submitted that these are not costs “thrown away” as that term is usually understood. [20] Further, the Respondents claim that items 9, 14, 16, 18 and 20 relate to preparation of cross-examination of the Respondents’ witnesses. It is submitted that as the Respondents continue to rely upon the material filed at the time of the adjournment there will be no amendment required to the cross-examination prepared and thus no costs wasted. [21] The Respondents submit that the costs thrown away as a result of the adjournment are limited to those items numbered 4, 5, 6, 7, 12, 13, 21, 22 and 23. Accordingly, the costs thrown away should be assessed in the sum of $3,060.00 plus GST. 5 [1984] 1 Qd R 251. 6 At 254. 7 Statement in reply of Adam McLean dated 10 February 2023 paras. 31-36. -- 6 of 9 -- 7 Evidence of Wasted Costs [22] The Applicant submits that the filing of further evidence by the Respondents on 19 May 2023 and 21 August 2023 substantially altered the Applicant’s approach to the issues in contention. The particulars provided for this submission are in general terms and state as follows: (a) the further evidence revealed that the Respondents’ expert considers many of the Applicant’s claims are fair and reasonable and that the amounts claimed by the Applicant are due and owing by the Respondents; (b) the further evidence superseded and makes obsolete much of the Applicant’s and Respondents’ quantum evidence already filed; (c) the Applicant intends to substantially amend its examination and cross- examination of witnesses and its submissions on the further evidence. (d) it is no longer necessary for the Applicant to rely on much of the work claimed for general preparation costs and examination preparation costs at the adjourned hearing as a result of the delivery of the further evidence rendering such work as wasted in the circumstances. [23] The Applicant says that the costs assessment provided to the Respondents does not make a claim for amendment of the Applicant’s submissions because of the further evidence but rather claims costs for preparation of material for the further hearing which is now wasted in circumstances due to the further evidence. [24] An order for costs thrown away is regarded as compensation for work already done but wasted as a result of the other party’s error or failure or an instance of the other party seeking the indulgence of the Court such as to accurately formulate its pleading or for an adjournment of a hearing. [25] The assessment of costs thrown away is an exercise that looks back.8 A costs order is compensatory in nature; and the compensatory entitlement is to look back at the costs wasted by reason of, in this case, the adjournment. [26] The question to decide is whether much of the pre-adjournment work was wasted at all. [27] Whilst the Applicant has submitted that the drafting of submissions and preparation of cross-examination of witnesses has been work which has been wasted, no details supporting this contention have been provided. [28] This Tribunal is unable to correlate that the work undertaken prior to the adjournment is no longer relevant to the adjourned hearing because of the additional material filed by the Respondents. [29] It is possible that, without explanation, the work which has been carried out is still relevant to the case which the Respondents will argue at the hearing. It is possible, without explanation, that the preparation of the cross-examination of the Respondents’ witnesses for the adjourned hearing will include both the work already performed and further cross-examination preparation. 8 Edelman v Badower [2010] VSC 427 at [36]. -- 7 of 9 -- 8 [30] To this extent, it is not possible to identify whether the extra material sought to be tendered and being the cause of the adjournment has made redundant the preparation work already performed. It is not sufficient for the Applicant merely to state this scenario as a fact without providing details supporting such a result. [31] This Tribunal is unable to ascertain whether the Applicant’s costs of dealing with previous allegations have been wasted as there is no evidence that certain issues have been withdrawn from the Respondents’ case and replaced by new allegations. [32] “Costs thrown away” is an expression that means costs that have been wasted: The Fashion Wardrobe Pty Ltd v Pola [1984] 1 Qd R 251 at 254. In the present circumstances, it is not possible to ascertain that all the costs incurred by the Applicant in preparation for the hearing have been entirely wasted. [33] The Respondents contend that they have not abandoned their approach to their case but rather have sought an adjournment to provide further evidence. The Applicant has not provided any evidence which assists in concluding that the earlier case has been abandoned. [34] Whilst good reason has been provided by the Applicant for its entitlement to costs thrown away, namely, that the Applicant had warned the Respondents that its case was deficient in evidence to support its defence and thus the adjournment was caused by the Respondents’ failure to amend earlier, there is little assistance for this Tribunal to assess the wasted costs as a result of the additional material and/or change in approach of the Respondents’ defence. [35] The order of the Tribunal was that the costs thrown away be paid on an indemnity basis. This, in itself, is evidence of either some unreasonableness or some irresponsibility on the part of the Respondents.9 [36] In all tests for fixing costs, only those costs which are reasonable, necessary or proper should be allowed. That is, they must be “properly and reasonably incurred”.10 [37] In considering whether the costs claimed by the Applicant are reasonable, the Tribunal makes the following determination: (a) Item 1 – Directions hearing dated 20 April 2023 The date of the Directions hearing was set down by order of the Tribunal on 15 December 2022. The cost of the Directions hearing was not a cost wasted by virtue of the adjournment of the hearing date on 19 May 2023. Whilst it was an opportunity for the Respondents to make an application for the filing of further material or to seek orders relating to the hearing date which was set for 24 May 2023, it was not a wasted cost resulting from the adjournment on 19 May 2023. (b) Items 2, 3, 8, 10, 11, 15, 16, 17, 18 and 19 – Preparation of submissions for the final hearing The Applicant submits that that the preparation based on the evidence contained in the statements provided by the Respondents is largely unnecessary and 9 Thornton v Lessbrook Pty Ltd (No 2) [2010] QSC 363 at [6]; Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; JM Kelly Builders Pty Ltd v Murphy [2003] QSC 23. 10 Thompson v Body Corporate for Arila Lodge & Anor [2017] QCATA 152 at [27]. -- 8 of 9 -- 9 therefore thrown away. New material is required to be prepared to address the further evidence. Whilst the Applicant states that the general preparation costs were based on the evidence since superseded by the further evidence and that the material upon which preparation was based is no longer necessary to be relied upon, no details supporting this submission are provided. I am not satisfied that these costs have been thrown away by the filing of further material. (c) Items 9, 14 and 20 – Preparation for Cross-examination of Witnesses The Applicant submits that the preparation for cross-examination based on the material filed to date has become redundant as a result of the delivery of the further material. The fact that new material must be prepared by the Applicant to appropriately address the further evidence does not support the notion that the preparation work already done involves costs thrown away. No detail is provided of the items for cross-examination which will no longer be required at the adjourned hearing. The Respondents submit that the written statements which would have been relied upon by the Applicant’s solicitors for the preparation of cross- examination have not been amended or withdrawn and are relied upon by the Respondent for its defence. It is accepted that the costs of preparation of cross-examination based on the Respondents’ written statements already in evidence are costs which have not been wasted.. (d) Items 4, 5, 6, 7, 12, 13, 21, 22 and 23 – Witness conference costs and Attendance costs The Respondents agree that the costs incurred by the Applicant for attendance on witnesses and at the first day of the hearing are costs thrown away as a result of the adjournment. (e) Outlays - $208.60 There is no evidence that the printing and scanning of relevant material for the final hearing on 19 May 2023 will not be useful for the adjourned hearing. Orders [38] Based on the reasons provided above, the Tribunal determines that the following orders should be made: - 1. The Applicant’s costs thrown away as a result of the adjournment allowed on 19 May 2023 be assessed in the sum of $3,366.00 inclusive of GST, such sum relating to items 4, 5, 6, 7, 12, 13, 21, 22 and 23 of the Applicant’s costs statement. -- 9 of 9 --