Faulks v New World Constructions Pty Ltd (No 2) [2014] QCAT 329

CITATION: Faulks v New World Constructions Pty Ltd (No 2) [2014] QCAT 329 PARTIES: Mr Richard Faulks and Mrs Megan Faulks (Applicant) v New World Constructions Pty Ltd (Respondent) APPLICATION NUMBER: BDL173-12 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member King-Scott DELIVERED ON: 17 July 2014 DELIVERED AT: Brisbane ORDERS MADE: The Respondent pay the Applicants’ costs fixed at $32,316.89 by 4pm on 15 August 2014. CATCHWORDS: PROCEDURE - APPLICATION TO REOPEN PROCEEDINGS - COSTS – Discretionary matters affecting a decision to award costs. APPEARANCES and REPRESENTATION (if any): APPLICANT: The Applicants were represented by Mr A West of Counsel instructed by Dale and Fallu. RESPONDENT: The Respondent was represented by Mr B Hall of Counsel instructed by JKR Lawyers. REASONS FOR DECISION [1] New World Constructions Pty Ltd (New World) has applied to reopen the proceeding brought by Mr and Mrs Faulks, in particular the order made in respect of costs, on 3 June 2014. -- 1 of 4 -- 2 [2] The application is brought pursuant to s 138 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”). [3] Pursuant to s 139, each party must be given an opportunity to make written submissions about the application. New World has filed written submissions in respect of the reopening. Mr and Mrs Faulks have declined to do so. [4] The Tribunal may grant a reopening only if it considers a reopening ground exists and the ground could be effectively or conveniently dealt with by reopening the proceeding: s 139 (4) of the Act. [5] The substantive hearing was heard on 1, 2 and 3 October 2013. The decision was reserved and delivered on 24 December 2013. The parties were invited to make written submissions in respect to costs which were to be filed.1 [6] The Faulks’ submissions were forwarded to the Tribunal and to me by email. New World’s solicitors forwarded its submissions to me directly by email but did not file a copy in the Tribunal, nor was a copy served on the Faulks’ solicitors. Counsel for Faulks therefore made reference in his submission that New World had not filed any submissions in respect to costs. [7] I therefore made the decision on 3 June 2014 without considering the submissions made by New World. [8] Although in the substantive reasons I invited the parties to file their submissions in the Tribunal in respect to costs, I had, at the end of the substantive hearing, invited the parties to send their written submissions directly to me. Therefore, the error by New World’s solicitors in not filing the submissions in respect to costs was caused in part by the procedure I had earlier invited them to follow. I now regret that I did so as it allows for confusion. However, I can appreciate that this led to a misunderstanding by New World’s solicitors and clearly an injustice has been done. Therefore, there is a ground to reopen the proceeding and I am satisfied the reopening ground can be effectively dealt with by way of re-hearing. [9] I will now reconsider the costs issue. [10] The hearing of this building dispute took 3 days. Both parties were represented by counsel. [11] At the hearing the Faulks’ were substantially successful, although I dismissed the Faulks’ claim for general damages for inconvenience, distress and discomfort. That claim was not particularised and very little evidence was led on the subject. [12] New World submits that no party succeeded on its primary claim, but each was successful in defending the claim made against it. Though strictly 1 Faulks v New World Constructions Pty Ltd [2013] QCAT 658 at [71]. -- 2 of 4 -- 3 true, the submission overlooks the time devoted to each of those issues. All of the hearing time related to the claim for monies alleged due under the contract and the defence by the Faulks that the progress payments sought were premature, that New World was in breach of contract when it suspended the work and the defective nature of the works. [13] On the other hand, the claim for general damages by the Faulks’ occupied no hearing time and was not seriously pressed by them in the hearing. [14] I therefore reject the submission by New World that the parties had been equally unsuccessful in making out their claims and equally successful in defending them. [15] New World also submits that each party should bear their own costs and that there is no basis for the Tribunal to move away from the position under s 100 of the Act, that each party to a proceeding must bear its own costs unless the interests of justice require another order: s 102 of the Act. If it was necessary for me to consider s 100 of the Act I would decide, as would be apparent from the reasons for the decision,2 that the matter was complex and warranted legal representation and an order for costs under s 102 (3) of the Act. [16] However, section 77(1)(h) of the Queensland Building and Construction Commission Act 1991 gives the Tribunal a broad, general discretion to award costs in a building dispute. It displaces the usual no costs position in Tribunal matters as provided for by s.100 of the QCAT Act. [17] In my opinion, the Faulks, being the successful party, are entitled to their costs. [18] New World did not in its submissions dispute the quantum of the amount claimed by the Faulks for costs. [19] Section 107 of the QCAT Act provides that the Tribunal, if it makes an order for costs under the QCAT Act or an enabling Act, must fix the costs if possible. [20] This matter came on for hearing, initially, on 15 April 2013. New World sought an adjournment because it had not had time to confer with its Quantity Surveyor. The adjournment was granted with an order that the costs thrown away be reserved. New World did not lead evidence from the Quantity Surveyor at the ultimate hearing. Undoubtedly, the Faulks’ should recover those costs. New World makes no submission in respect of this claim other than the general assertion that there should be no order as to costs. [21] The Faulks’ submissions are supported by an itemised assessment of standard costs on the Magistrates Court scale. I am satisfied as to the 2 Faulks v New World Constructions Pty Ltd (supra). -- 3 of 4 -- 4 reasonableness of those costs and I fix the costs comprising professional costs of $13,984.50 and outlays of $18,332.39. [22] The Tribunal orders New World to pay the Faulks’ costs fixed at $32,316.89 by 4pm on 15 August 2014. -- 4 of 4 --