Brooks and Brooks v Sawdy (No 2) [2020] QCAT 126

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Brooks and Brooks v Sawdy (No 2) [2020] QCAT 126 PARTIES: CHRISTINE BROOKS BRADFORD BROOKS (applicant) v MICHAEL SAWDY (respondent) APPLICATION NO/S: BDL305-18 MATTER TYPE: Building matters DELIVERED ON: 27 April 2020 HEARING DATE: 15 November 2019 HEARD AT: On the papers DECISION OF: Member Fitzpatrick ORDERS: The respondent Michael Sawdy is to pay the applicants Christine Brooks and Bradford Brooks their costs of the proceeding fixed in the sum of $6,339.00 by 28 May 2020. CATCHWORDS: PROCEDURE –CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – where applicants successful in building dispute – where counter-application successfully defended –where costs awarded on the standard basis – where Magistrates Court scale of costs appropriate. Queensland Building and Construction Commission Act 1991 (Qld), s77. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s102 and 107. Brown v Havenfoot Pty Ltd t/as Ibis Pools and Anor [2019] QCAT 105. Tamawood Ltd & Anor v Paans [2005] QCA 111. REPRESENTATION: -- 1 of 3 -- 2 Applicant: Mr RG O’Brien, Solicitor of Neilson Stanton & Parkinson Respondent: Mrs A Sawdy, representative APPEARANCES: This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION By decision made on 20 March 2020 the respondent was ordered to pay the applicants the sum of $2,332.00. The respondent failed in his counter-application seeking an amount of $4,000.00. In their claim the applicants had sought damages in the sum of $7,382.20 and recovery of all money paid to the respondent in an amount of $11,407.20 totalling $18,789.40. The applicants sought an order relieving them of any liability to pay any further sum to the respondent. The applicants also sought an order for payment of their costs of the proceedings. The proceeding first commenced as an application for a minor civil dispute, but was later transferred to the building list in this Tribunal. In a decision of 20 March 2020 the applicants were ordered to file and serve submissions in relation to their claim for costs of the proceedings. Those submissions have been received by the Tribunal. The applicants were required to state the amount of costs sought and to provide a breakdown as to how the costs are calculated by reference to the Magistrates Court scale of costs. The applicants have not done so. The respondent has not filed any submissions in reply. I accept the applicants’ submissions that they are entitled to an order for costs. The usual rule in a building matter is that costs follow the event. The applicants were successful by receiving an award of damages and the dismissal of the respondent’s counter-application. The Tribunal has jurisdiction to make a costs order under s77 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). I accept that section confers a broad discretion and that the Tribunal is not constrained by the factors outlined in s102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).1However, I have considered the factors in s102 of the QCAT Act and do not consider that there is any factor which would disentitle the applicants to an order for costs. I consider it is in the interests of justice that the applicants be awarded costs so as not to erode their award of damages through the costs of legal representation reasonably obtained in order to achieve the successful result.2 By section 107 of the QCAT Act, if the Tribunal makes a costs order under an enabling Act, such as the QBCC Act, the Tribunal must fix the costs, if possible. I sought the assistance of the applicants’ solicitors in fixing the costs by requesting details of the costs sought by reference to the Magistrates Court scale of costs. Instead 1 Brown v Havenfoot Pty Ltd t/as Ibis Pools and Anor [2019] QCAT 105. 2 Tamawood Ltd &Anor v Paans [2005] QCA 111 at [33]. -- 2 of 3 -- 3 the applicants have submitted that the appropriate scale of costs is the District Court scale and that the costs should be assessed. The applicants submit that due to the length and complexity of the proceedings it is not possible to accurately fix costs without substantial time being spent assessing the work performed on the matter. Although the Tribunal is not bound to follow a particular scale of costs, it may look to a scale for assistance. In this case given the amount claimed and the amount recovered, which falls within the monetary jurisdiction of the Magistrates Court, I consider that is an appropriate scale to use as a guide in making an award of costs. In view of the relatively small award made in this matter compared with the obvious costs incurred in conducting the claim and defence of the counter-application I do not consider it to be in the interests of justice for further costs and delay to be incurred by the costs of an assessment being undertaken by a costs assessor. I intend to fix the costs by reference to the Magistrates Court scale of costs for items of work relating to a claim in the range $5,001.00 to $20,000.00. I have taken into account Items 1, 2, 5(b), 6(b) and 9 of the scale totalling $6,339.00. I order that the respondent pay to the applicants their costs of the proceeding fixed in the sum of $6,339.00 by 25 May 2020. -- 3 of 3 --