Farrell Builders Pty Ltd & Anor v Hall & Anor [2019] QCAT 221

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Farrell Builders Pty Ltd & Anor v Hall & Anor [2019] QCAT 221 PARTIES: FARRELL BUILDERS PTY LTD (first applicant) SHANE FARREL (second applicant) v BRENT HALL (first respondent) HELEN HALL (second respondent) APPLICATION NO/S: BDL204-16 MATTER TYPE: Building matters DELIVERED ON: 13 August 2019 HEARING DATE: On the Papers HEARD AT: Brisbane DECISION OF: Member Holzberger ORDERS: The parties are to bear their own costs. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – GENERAL RULE: COSTS FOLLOW EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where enabling act gives the Tribunal the express power to award costs – where both parties argue that they have been successful and should entitled to costs – whether order should be made as to costs where the parties engaged in a protracted legal dispute Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 100 REPRESENTATION: Applicant: W Thomas of Counsel Respondent: N M Cooke instructed by Rostron Carlyle APPEARANCES: 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 3 -- 2 REASONS FOR DECISION A decision was delivered in this matter on 9 November 2018 ordering the Applicant, Shane Farrell, to pay the sum of $5,461.56 to Brent Hall and Helen Hall (‘the Halls’) and for any written submissions as to costs to be filed by 18 January 2019. Council for both parties filed submissions on time. On 13 February 2019 I received further submissions apparently authored by the Halls titled ‘Respondents reply on Applicants costs submissions’ and a reply to that document by Counsel for Mr Farrell on 14 February 2019. The usual position to of the parties to proceedings in the Tribunal must bear their own costs,1 is displaced by s 77(3)(h) of the enabling act, the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) which expressly gives the Tribunal the power to award costs. In those circumstances the general rule is that the costs follow the event. Successful parties generally entitled to its costs against an unsuccessful party. In written submissions, Mr Cooke for the Halls and Mr Thomas for Mr Farrell both argued that their clients had been substantially successful and is thus entitled to costs. I do not agree with either of them. Mr Thomas submits that the Halls counterclaim was ‘bloated and petty’. Mr Cooke criticizes the approach of Mr Farrell as ‘highly legalistic’. Each claims as a result the other has contributed to the length and complexity of these proceedings. I agree with both of them. I do not accept that the Halls position as Respondents in these proceedings is comparable to that of a defendant in criminal proceedings or a respondent or defendant in civil proceedings who has had no option but to participate in a costly legal process. Once the Halls terminated the contract the competing claims of the party would need to be determined and offset. It was simply a question of who would issue first. Mr Farrell’s claim for unpaid progress claims was dwarfed by the Halls counter claim. The Halls ill-tempered termination set the tone of proceedings that followed. By the time this matter came to hearing the trial brief exceeded 3000 pages. The evidence was heard over 3 full days. I received approximately 150 pages of written submissions with a further half day of oral submissions to follow. Mr Thomas submits that in respect of Mr Farrell’s claim which was ultimately quantified at $163,031.61 excluding interest he recovered $126,814.78 or 78% of the amount claimed. In contrast of their original claim of $832,217.65 the Halls recovered only 20%, namely, $168,493.17. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100. -- 2 of 3 -- 3 Accepting for a moment those figures the exercise appears to be artificial. Clearly the claim and counterclaim had to be offset and in fact are almost self-cancelling. Mr Farrell cannot having been ordered to pay an amount of money even the relatively small amount ordered say he has been substantially successful. Mr Farrell filed an affidavit with submissions as to costs quantifying his costs of the proceedings at $51,660.80. There is no estimate of the Halls costs in evidence or submissions. I suspect their costs are significantly greater than Mr Farrells. For the Halls it is said that large parts of the original claim were abandoned during the course of proceedings. That may well be, however, in closing submissions they calculated the amount of their claim after offset of Mr Farrell’s claim as $276,956.31. They received less than 2% of that amount. I appreciate the substantial financial burden of these proceedings on both parties but in my view both parties have adopted an uncompromising and aggressive approach and as their claims substantially offset each other neither has succeeded. In those circumstances I make no order as to costs. -- 3 of 3 --