David Cameron Mills t/as D C Mills Developments v Fitch [2015] QCAT 272

CITATION: David Cameron Mills t/as D C Mills Developments v Fitch [2015] QCAT 272 PARTIES: David Cameron Mills t/as D C Mills Developments (Applicant) v Peter Fitch and Andrea Fitch (Respondents) APPLICATION NUMBER: BDL052-13 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Allen DELIVERED ON: 14 July 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. David Cameron Mills must pay Peter Fitch and Andrea Fitch costs of and incidental to application BDL052-13 in an amount to be agreed, or failing an agreement on a standard basis with reference to the District Court scale. CATCHWORDS: BUILDING MATTERS – COSTS – where respondents successful in defending claim and obtained award under their counter application – applicant failed to accept formal offer which was not more favourable Queensland Building and Construction Commission Act 1991 (Qld) s 77(2)(h) Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 Better Homes Queensland Pty Ltd v O’Reilly and Anor [2013] QCATA 122 -- 1 of 3 -- 2 APPEARANCES: 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). REASONS FOR DECISION [1] Mr Mills constructed a dwelling for Mr and Mrs Fitch which resulted in an application being made to the Tribunal by Mr Mills for the amount of $206,794.04 for alleged unpaid monies due under the contract. Mr and Mrs Fitch denied Mr Mills claim made a counter application in respect of defects originally said not to be less than $200,000 and overcharging for labour in the amount of $53,072.25. [2] Ultimately, Mr Mills was unsuccessful in his claim and the Fitches were successful in their counterclaim to the extent of being awarded $75,569.24 following a three and half day hearing with counsel on both sides. [3] The Tribunal has a discretion in building matters to award costs1. Judge Kingham noted that the section does not provide further guidance or prescription about the occasions for or conditions of exercise of that power. Further that, a jurisdiction given in general terms allows the Tribunal to make an order as to costs that is justified in the circumstances. It a broad general discretion which must be exercised judicially, not upon irrelevant or extraneous considerations but upon facts connected with or leading up to the litigation2. [4] The Tribunal made a direction that the parties make submission in regard to costs in its order of 24 March 2015. The Fitches have made submissions requesting that they be awarded an amount of $103,256.17 in costs and outlays. The outlays are in respect of experts who were required to give evidence in regard to the defects and the costs of the building works. [5] The Tribunal notes that an offer to settle the claim was made by Mr and Mrs Fitch on 6 December 2013 in an amount considerably less that was ultimately awarded to them and prior to the incurring of the bulk of their costs in the amount of $60,163.17. [6] While it is normal in the Tribunal that parties bear their own costs3 where an offer which is not less favourable than the final decision has not been accepted the Tribunal may award the reasonable costs of the party making the offer4. This has a similar effect as a Calderbank offer. Clearly, Mr Mills should have been able to obtain appropriate advice as to his prospects of 1 Queensland Building and Construction Commission Act 1991 (Qld), also see Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 per Kingham J. 2 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 Para 32 and 33. 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100. 4 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 86. -- 2 of 3 -- 3 success in the application if it went to hearing in which case it would have been in his interests to accept the offer. [7] While the total amount of the costs is considerably more than was awarded it must be noted that the Fitches were successful in defending Mr Mills’ claim in the amount of $206,794.04 which puts the costs in proportion. [8] This application was complicated both in terms of the legal issues and the factual issues and having regard to the number of hearing days, it is clear that legal representation was required. The material before the Tribunal only indicates the amount of the costs and the Tribunal has been asked either to seek further material as to the reasonable costs or have the costs assessed on the District Court scale. [9] That scale has been requested as the total amount of the claim was within the jurisdiction of the District Court. The Tribunal notes that the jurisdiction of the magistrate’s court extends to $150,000.00 and Mr Mills’ claim was as mentioned in the amount of $206,794.04. It was submitted that a claim for costs on the District Court scale had previously been granted by the Appeals Tribunal in a building matter5. [10] The Tribunal is satisfied that costs should be awarded to the Fitches in this application as they were successful in defending the claim and also successful in their counter application. These costs could also have been limited if Mr Mills had accepted the offer to settle which was more favourable to him than the final order of the Tribunal. [11] The Tribunal orders that David Cameron Mills must pay Peter Fitch and Andrea Fitch costs of and incidental to application BDL052-13 in an amount to be agreed, or failing an agreement on a standard basis with reference to the District Court scale. 5 Better Homes Queensland Pty Ltd v O’Reilly and Anor [2013] QCATA 122. -- 3 of 3 --