Budge & Anor v JMK Building Pty Ltd (No. 2) [2018] QCAT 199

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Budge & Anor v JMK Building Pty Ltd (No. 2) [2018] QCAT 199 PARTIES: DAVID BUDGE (first applicant) CHRISTINE BUDGE (second applicant) v JMK BUILDING PTY LTD (respondent) APPLICATION NO: BDL201-16 MATTER TYPE: Building matters DELIVERED ON: 3 July 2018 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: The respondent pay the applicants’ costs of $3,019.25 within 7 days of the date hereof. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – RECOVERY OF COSTS – ENTITLEMENT – where applicants self- represented – where applicants claimed for time taken to attend interlocutory and final hearing – where applicants claimed legal expenses without particularising charges – where applicants commenced two proceedings in the Tribunal subsequently amalgamated into one – whether the respondent responsible for additional filing fee – where postage charges claimed – where expert witness charged fees Cachia v Hanes (1994) 179 CLR 403 Rare Nominees Pty Ltd v E-Coastal Developments Pty Ltd (No. 2) [2017] QDC 250 REPRESENTATION: First applicant: Self-represented Second applicant: Self-represented Respondent: No appearance APPEARANCES: -- 1 of 3 -- 2 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] The hearing in this matter took place over 2 days in September 2017. The applicants were self-represented and the respondent had legal representation. [2] The final orders made were that the respondent pay the applicants the sum of $7,900 and the parties file submissions as to costs. [3] The applicants have filed submissions on costs but there are no submissions from the respondent. [4] The applicants seek the following costs: Attendances by the first applicant at interlocutory hearings by telephone and the hearing in person over 2 days - $2,800. Attendances by the first applicant at interlocutory hearings and the hearing over 2 days - $1,400. Filing fees - $631.40. Postage costs - $179.05. Legal fees - $3,090.25. Attendance by the second applicant on QBCC inspector - $600. Expert witness expense - $1,800. [5] The High Court explained in Cachia v Hanes:1 The “costs” provided for in the Rules do not include time spent by a litigant who is not a lawyer in preparing and conducting his case. They are confined to money paid or liabilities incurred for professional legal services. It is only in that sense that the Rules speak of “costs”…2 [C]osts must be understood to be an award by way of partial indemnity for professional legal costs incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant.3 [6] Accordingly, the applicants cannot recover for their time preparing the matter or participating in interlocutory stages or attending at the hearing. Nor additionally here, the second applicant attending on a QBCC representative. [7] The applicants paid a filing fee of $315.70 in the within matter BDL201-16 on 3 August 2016 claiming damages for defective flooring in the home. They then commenced another action in the Tribunal in matter BDL294-16 in November 2016 paying another $315.70 claiming for rectification of external cladding in respect of the same property. There was no need to commence 2 proceedings. The first claim 1 [1994] HCA 14; (1994) 179 CLR 403. 2 Ibid [6]. 3 Ibid [11]. -- 2 of 3 -- 3 could simply have been amended to include the claim for cladding. Indeed the Tribunal ordered both matters be consolidated into one in December 2016. [8] The applicants are entitled to the filing fee in the within matter because they were successful at hearing, but they are only entitled to one filing fee, but not in the second matter, which fee was incurred unnecessarily. [9] The postage charges are charges that solicitors acting for the applicants might also have incurred in conducting the action and therefore are recoverable as outlays.4 The charges seem reasonable at $179.05. There are receipts provided. [10] The legal fees are problematical. There are 4 invoices but they are in general terms and do not contain a description of what work was done by the solicitors for the applicants. There is one dated 2 December 2015 for $677.60, one dated 27 July 2016 for $732.60, another dated 31 August 2016 for $1,324.40 and the final dated 24 November 2016 for $355.85. The invoices simply state the charges are for ‘Professional fees and other professional fees and charges’. [11] I conclude the solicitors were most probably engaged to advise the applicants about the claim against the respondent and the proposed litigation. The advice was sought before and at the commencement of the litigation but what advice was given is not detailed. In the circumstances I conclude it is fair to allow the applicants most of that cost described as ‘Instructions to sue—claim and statement of claim and service’ in Schedule 3 Magistrates Court scale of costs E (an award of $5,001 to $10,000). Preparation of the claim documents and service however was attended to by the applicants. An amount of $725 is allowed. [12] Finally there is the cost of the expert witness. That witness attended and gave evidence. His attendance was appropriate and his evidence accepted in large part by the Tribunal. His charges are recoverable. His charges are $1,800. [13] In summary therefore, the applicants are entitled to costs as follows: (a) Filing fee - $315.20; (b) Postage costs - $179.05; (c) Legal fees - $725; and (d) Expert witness expense - $1,800. [14] Those costs total $3,019.25. That is the amount the respondent must pay the applicants. 4 Rare Nominees Pty Ltd v E-Coastal Developments Pty Ltd (No. 2) [2017] QDC 250, [45]. -- 3 of 3 --