Dyer v Spence [2016] QCAT 385

CITATION: Dyer v Spence [2016] QCAT 385 PARTIES: Rowan John Dyer (Applicant) v Robyn Spence (Respondent) APPLICATION NUMBER: BDL285-14 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Deane DELIVERED ON: 11 October 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. Robyn Spence’s costs thrown away by the adjournment of the hearing scheduled for 9 and 10 June 2016, including the costs of the application to fix those costs are fixed in the amount of $22,856.27. 2. Rowan John Dyer is to pay Robyn Spence $22,856.27 by 28 October 2016. CATCHWORDS: COSTS – fixing costs thrown away by adjournment Queensland Civil and Administrative Tribunal Act 2009 (Qld), s107 Queensland Building and Construction Commission Act 1991 (Qld), s77 Cruceru v Medical Board of Australia [2016] QCAT 111 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). -- 1 of 5 -- 2 REPRESENTATIVES: APPLICANT: Rowan John Dyer RESPONDENT: represented by Garland Waddington, Solicitors REASONS FOR DECISION [1] The final hearing of this matter was set down for two days commencing on 9 June 2016. At the commencement of the hearing, Mr Dyer requested an adjournment to allow him to seek advice. I made directions allowing for a possible application for leave to amend his claim following the opportunity to seek advice. I also ordered that Robyn Spence’s costs thrown away by the adjournment are to be paid by Rowan John Dyer to be determined on an indemnity basis to be assessed if not agreed. Rowan John Dyer is to pay the amount within 14 days of the agreement or assessment. [2] The parties did not reach agreement and Ms Spence applied to the Tribunal to fix the costs assessed and to fix the costs of this costs application. [3] Ms Spence obtained an assessment from Therese Tonkin of Blackstone Legal Costing. The evidence is, and I accept that, Ms Spence’s solicitors sent: a) a copy of the Costs Statement to Mr Dyer on 24 June 2016 seeking payment of an amount of $30,225.15 in respect of items 1 – 87. There was no response from Mr Dyer. b) a signed copy of the Costs Statement to Mr Dyer on 7 July 2016 and a letter foreshadowing the present application. There was no response from Mr Dyer. [4] Ms Spence claims that the Tribunal should assess the costs at $32,083.10 being $30,255.15 in accordance with items 1 – 87 of the Costs Statement and additional costs in the sum of $1,827.95 outlined in submissions filed pursuant to the 22 July 2016 directions. [5] If the Tribunal makes a costs order, it is to fix the costs if possible.1 [6] I fix the costs payable by Mr Dyer at $22,856.27 for the reasons set out below. [7] On 22 July 2016 I ordered that the costs were to be fixed having regard to the cost statement and any submissions on the papers. Mr Dyer did not file any submissions. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 107. -- 2 of 5 -- 3 [8] Ms Spence’s solicitors have signed the Costs Statement asserting that the costs claimed are reasonable and that the disbursements claimed were incurred reasonably. [9] The Tribunal constituted by Hon JB Thomas, Judicial Member, stated in Cruceru v Medical Board of Australia 2 Having regard to the objects of the QCAT Act, the discretion to fix costs under s107 is an extremely wide one and is to be exercised robustly. [10] I find that Mr Dyer is to pay Ms Spence $21,247.07 in respect of the costs particularised in items 1 – 87 of the Costs Statement. [11] Having regard to the description of the work in the Costs Statement I am not satisfied that all of the costs claimed were ‘thrown away by the adjournment’ as distinct from being costs of the proceeding, in respect of which a costs order has not yet been made. [12] Items 10, 11, 12, 13, 14 and 18 totalling $2,100.30 (excl GST) relate to a draft expert witness statement by an engineer, which was not filed by Ms Spence before (or after) the adjourned hearing date. The Tribunal’s directions required expert evidence to be exchanged between the parties by 25 February 2016. The items indicate this work was performed in late May and early June 2016. There is no evidence before me that these costs would be required to be duplicated prior to the hearing set down for two days commencing on 8 September 2016. I am not satisfied that these costs were thrown away by the adjournment. I disallow them. [13] Items 28, 29, 80, 81 and 82 relate to pre-hearing preparation, including pre-hearing conferences and attendance on site by Ms Spence’s solicitor, Counsel and two experts, who had provided expert reports in this matter. I am not satisfied that the whole of these costs were thrown away by the adjournment. There is no evidence before me that the whole of these costs would be required to be duplicated prior to the hearing commencing on 8 September 2016 and in particular that a further attendance on site would be required attracting both travel time and ‘mileage’ allowances. I accept that it is likely that approximately half of this preparation would have been thrown away by the adjournment. [14] In these circumstances I: a) disallow item 28, Solicitor fees at 50% $ 1,085.00 (excl GST) b) disallow item 29, Solicitor mileage $ 30.00 c) disallow item 80, expert fees at 50% $ 294.25 (incl GST) d) disallow item 81, expert fees at 50% $ 330.00 (incl GST) e) disallow part item 82, Counsel’s fees3 $ 3,985.04 (incl GST) 2 [2016] QCAT 111 at [49]. 3 Disallow 50% of preparation time and disallow mileage plus applicable GST. -- 3 of 5 -- 4 [15] Items 30, 31, 32, 33, 34, 35, 36 and 37 totalling $645.60 (excl GST) for professional costs and $0.80 for disbursements all relate to the directions hearing held before me on 8 June 2016. I am not satisfied that these costs were thrown away by the adjournment. An equivalent directions hearing was not held before the adjourned hearing date. I disallow these amounts. [16] Item 41 totalling $140 (excl GST) relates to reviewing the exhibits to Ms Spence’s statement and considering the plans and drawings. At the hearing on 9 June 2016, better copies of some of the exhibits to Ms Spence’s statement were tendered as an exhibit in the proceeding. There is no evidence before me that these costs would be required to be duplicated prior to the hearing commencing on 8 September 2016. I am not satisfied that these costs were thrown away by the adjournment. I disallow this amount. [17] Item 87 relates to GST on professional fees. I have disallowed $3,970.90 in respect of professional fees.4 Item 87 ought to be reduced by $397.09 to reflect the extent to which professional fees have been disallowed. [18] I allow $21,247.07 in respect of the costs claimed in items 1 – 87 calculated as follows: a) amount claimed items 1- 87 $30,255.15 b) less professional costs disallowed $ 3,970.90 c) less GST on professional costs disallowed $ 397.09 d) less disbursements disallowed5 $ 4,640.09 [19] The additional submissions set out an itemisation of work performed subsequent to the work performed as itemised to item 87 and includes items of work required to bring this application. [20] This application to fix the costs is only required because Mr Dyer has failed to agree an amount in respect of the costs thrown away by the adjournment or indeed to respond at all to the itemising of Ms Spence’s costs set out in the Costs Statement. [21] I find that Mr Dyer is to pay Ms Spence’s costs of this application to fix the costs. In building disputes, there is a broad general discretion to award costs.6 [22] I find that Mr Dyer is to pay Ms Spence $1,609.20 in respect of the costs particularised in the additional submissions. [23] Having regard to the costs claimed I find that the items of work claimed and the amounts claimed are reasonable, except as claimed in item 4 [11] $2,100.30, [13(a)]$1,085.00, [14] $645.60, [15] $140.00. 5 [13(b)] $30, [13(c)] $294.25, [13(d)] $330.00, [13(e)] $3,985.04, [14] $0.80. 6 Queensland Building and Construction Commission Act 1991 (Qld) s 77. -- 4 of 5 -- 5 5(b)(xiii), which relates to the directions hearing held before me on 22 July 2016. [24] The directions hearing was called in part to facilitate the making of directions in this application but was primarily to discuss the Notice of Withdrawal, which had been received by the Tribunal from Mr Dyer but not yet processed, given that a Counter-Application had been filed by Ms Spence and to make appropriate directions. [25] The Tribunal records show that the directions hearing lasted 36 minutes. The itemisation indicates a claim for part of the directions hearing costs and includes a share of travel time and travel expenses in the nature of mileage and parking. Parties are entitled to appear at directions hearings by telephone. I am not satisfied that the incurring of the costs to attend in person was reasonable, especially in so far as it related to the making of directions to fix costs, where to do so involved travelling from the Sunshine Coast to Brisbane. I disallow $100 for travel time and $118.75 for travel expenses. [26] In accordance with my previous order, Mr Dyer is to pay the amount fixed within 14 days. -- 5 of 5 --