Carlsen v Tressider & Anor [2014] QCAT 556

CITATION: Carlsen v Tressider & Anor [2014] QCAT 556 PARTIES: William George Carlsen t/as W & E Carlsen Builders (Applicant) v Mr Steven Tressider Mrs Melissa Tressider (Respondents) APPLICATION NUMBER: BDL130-13 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Deane DELIVERED ON: 3 November 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Steven Tressider and Melissa Tressider are to pay William George Carlsen t/as W & E Carlsen Builders costs thrown away fixed in the sum of $7,702.20 (incl GST) by 4.00pm 12 December 2014. CATCHWORDS: COSTS – fixing costs thrown away as a result of a late adjournment Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 107 APPEARANCES and REPRESENTATION (if any): APPLICANT: William George Carlsen t/as W & E Carlsen Builders represented by Ms N Whelan of Williams Graham Carman RESPONDENT: Mr Steven Tressider Mrs Melissa Tressider represented by Mr Steven Tressider 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 3 -- 2 REASONS FOR DECISION [1] This matter was listed for a two day final hearing commencing on Tuesday 9 September 2014. Mr and Mrs Tressider filed an Application for Miscellaneous Matters seeking an order to adjourn the hearing. The Application was received by the registry at 5:36pm Friday 5 September 2014 by email. [2] At the commencement of the hearing I dealt with the Application. Mr and Mrs Tressider chose not to appear to address me on their application. [3] I reluctantly granted the application and ordered that Mr and Mrs Tressider pay Mr Carlsen’s costs thrown away as a result of the adjournment and made directions for submissions so that the costs could be fixed in accordance with s 107 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’). I also asked Mr Carlsen’s representative to inform the Registry as to available dates with a view to being able to re-list the matter for hearing. [4] Submissions have now been received from both parties. Mr Carlsen seeks an order that costs be fixed in the amount of $7,702.20. [5] Mr and Mrs Tressider oppose the order sought. Many of their submissions go to the making of the order for costs, which was made on 9 September 2014, rather than the amount at which costs are to be fixed and paid. This is not an appeal of the order that the costs thrown away are to be paid; it is a determination of the amount to be paid. [6] To the extent that the submissions are directed to the amount to be paid they contend that the costs sought are excessive as they exceed the scale of costs described by the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’). The order for costs made on 9 September 2014 did not order that they be fixed by reference to the UCPR. [7] Mr and Mrs Tressider do not accept that the items of work claimed are thrown away and cannot be used at the subsequent hearing. [8] In support of Mr Carlsen’s submissions a draft invoice highlighting various items of work performed has been provided. From the descriptors of work performed it is clear that Mr Carlsen’s lawyers have made a genuine attempt to isolate items of work which will remain of value upon a relisted hearing date. [9] Mr Carlsen claims $1,848 in general preparation costs ‘including review of pleadings and evidence’. [10] I accept that it will be necessary to review the pleadings and the evidence prior to the relisted hearing, which is likely to be held many months after 9 September and that the work performed on 25 and 26 August 2014 is on the balance of probabilities completely thrown away by the adjournment. -- 2 of 3 -- 3 Having regard to the nature of the matters in dispute between the parties I accept that the amount claimed is reasonable. [11] Mr Carlsen claims $3,590.40 in witness conference costs. This amount includes the amount charged, $825, by Mr Carlsen’s expert witness. [12] I accept that it will be necessary to contact the witnesses again and hold pre-hearing conferences prior to the relisted hearing. Given the length of time which is likely to pass between the preparation done and the relisted hearing date, I also accept that the work performed on 25, 27, 28 and 29 August and on 2, 4 and 5 September 2014 and the work performed by the expert witness in meeting with Mr Carlsen’s lawyers and preparing for the hearing is on the balance of probabilities completely thrown away by the adjournment. Having regard to the nature of the matters in dispute between the parties I accept that the amount claimed is reasonable. [13] Mr Carlsen claims $1,214 in adjournment application preparation costs. This work would not have been necessary but for Mr and Mrs Tressider’s late application for an adjournment. The work performed is described in the draft invoice and appears reasonable in the circumstances. I accept that the amount claimed is reasonable. [14] Mr Carlsen claims $277.20 for appearing at the hearing. The application for adjournment had not been determined prior to the morning of 9 September. It was entirely appropriate for Mr Carlsen’s lawyers to attend and make submissions to me so that I could determine the application. An application for adjournment is not a matter, which the Tribunal will merely ‘rubber stamp’. This work would not have been necessary but for Mr and Mrs Tressider’s late application for an adjournment. I accept that the amount claimed is reasonable. [15] Mr Carlsen claims $277.20 for hearing cancellation costs in the nature of advising witnesses of the adjournment and seeking availability for an adjourned hearing and discussions with Mr Carlsen as a consequence of the adjournment. This work would not have been necessary but for Mr and Mrs Tressider’s application for an adjournment. As indicated earlier in these reasons I asked Mr Carlsen’s lawyers to advise about availability. It is therefore entirely reasonable that they would have made enquiries that day about witness availability for a relisted hearing. I accept that the amount claimed is reasonable. [16] Mr Carlsen claims $528 for submission costs. This work would not have been necessary but for Mr and Mrs Tressider’s application for an adjournment. I accept that the amount claimed is reasonable. [17] It is appropriate to allow a reasonable period for payment. -- 3 of 3 --