Cooperative Builders Pty Ltd v Allan [2013] QCAT 416

CITATION: Cooperative Builders Pty Ltd v Allan [2013] QCAT 416 PARTIES: Cooperative Builders Pty Ltd (Applicant) v Duncan Allan (Respondent) APPLICATION NUMBER: BDL382-12 MATTER TYPE: Building matters HEARING DATE: On the Papers HEARD AT: Brisbane DECISION OF: S Gardiner, Member DELIVERED ON: 16 August 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Cooperative Builders Pty Ltd pay to Duncan Allen costs in the sum of $14,230.90 within 28 days CATCHWORDS: BUILDING MATTER – Where orders made by consent at hearing – Where costs awarded – Where submissions on quantum and who should pay costs – Where orders made APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] This matter came before the Tribunal for a hearing on 10 July 2013. At the hearing, the parties reached a private agreement to settle the proceedings, the contents of which were not made known to the Tribunal. [2] Consent orders were made by the Tribunal dismissing both the application and the counter-application. -- 1 of 4 -- 2 [3] An order was made awarding Mr Allan his costs but the quantum of costs and the persons responsible for the payment of the costs were not determined. Directions were made for submissions on these issues. [4] These are the reasons on the determination on both of these outstanding issues. Quantum of Costs [5] Mr Allen submits that his award of costs should be $14,590.90. This is broadly made up as follows: a) ASIC Search fee of Cooperative Builders Pty Ltd 16.50 b) Counsel’s fees  preparing documents, seeing client 2,800.00  Fee on brief 5,600.00 c) Quantity surveyor  Preparation of report 5,400.00  Attending hearing 720.00 d) Postage 54.40 [6] Mr Allan submits these costs should be made against Cooperative Builders because: a) The application was unable to proceed at the hearing because Cooperative Builders failed to properly file any evidence despite: i) Objections by Mr Allan on March, April and July 2013; ii) An additional directions hearing held on 22 May 2013 because of Cooperative Builders’ failure to properly file evidence where the presiding member specifically advised Cooperative Builders that the material filed was not in the proper form; b) Cooperative Builders claimed an amount of $76,384.72 damages in it’s application but did not provide any evidence to support the claims. Mr Allan was put to the expensed of disproving the claim by hiring an expert witness to provide a report and to attend the hearing. [7] Cooperative Builders says in reply to this costs claim : a) The invoice (numbered 80000413) received from counsel “covers defence, letters and counterclaim allegedly drafted by Liam Copley. These documents were all issued by Chris Adolphe. All -- 2 of 4 -- 3 correspondence was issued and emailed by Chris Adolphe, who is one of the respondents”. b) Counsel’s fee covering preparation for hearing and attendance at the first day of the two day hearing (the fee on brief for the second day being appropriately waived) is objected to because the fees are excessive. Cooperative Builders says they are excessive because, as it had not filed any statements of evidence, the work in preparation for the hearing by counsel would be minimal. c) The invoice (numbered 512) received from Accurate Estimating Service Pty Ltd for an expert witness report is objected to as Cooperative Builders says this report was obtained for support the counter-claim not the defence to it’s claim. d) The invoice (numbered 576) received from Accurate Estimating Service Pty Ltd for an expert witness attending the hearing to be cross examined is objected to by Cooperative Builders on the basis that the witness said he attended at QCAT for four hours. Cooperative Builders does not believe the expert estimator attended for that time. Discussion [8] Cooperative Builders misunderstands the relationship between counsel and the instructing solicitor. Mr Adolphe is involved on this development but is not a party to the action. Cooperative Builders brought the action against Mr Allan only. [9] Mr Adolphe is a solicitor and has in that capacity acted for Mr Allen. In the hearing as part of the discussions on costs, Mr Adolphe undertook not to seek his cost as solicitor in this matter. The Tribunal accepted this undertaking and this is reflected in the costs now sought by Mr Allan. [10] It is usual for counsel to draft and settle documents and usual for them to be returned to the solicitor for filing or issuing. It is a necessary part of the work of counsel to meet with the clients. [11] In objecting to counsel’s fee to prepare and attend the hearing on the basis of no statements of evidence filed, Cooperative Builders again misunderstands the role of counsel. If anything, no material from the applicant in the matter makes for more preparation by counsel for a hearing, not less, as Mr Allan in this case did not know the evidence to be put against him and counsel therefore needed to prepare widely. [12] The objections Cooperative Builders has to the costs of the expert estimator’s report are not accepted. Cooperative Builders initiated the dispute. Mr Allan responded and counterclaimed as he has the right to do. There is no evidence to show how the report would have been used in the hearing and in any event, Mr Allan is entitled to answer Cooperative -- 3 of 4 -- 4 Builders’ allegations and claims with his own evidence from independent experts. [13] The expert estimator was required to attend at QCAT on the day of the hearing to potentially be cross-examined. The hearing commenced at 9.30am. The Tribunal’s Auscript recording system show it finished at 11.22am. To the recollection of the Tribunal, the expert estimator was excused prior to the end of the hearing. I am satisfied that the expert estimator attended the Tribunal for a period of about 2 hours. At his charging rate of $180.00 per hour, the amount is set at $360.00. [14] In total, the Tribunal is satisfied the quantum of costs is set at $14,230.90. Persons responsible for costs [15] The second matter to be determined is who is to be responsible for the payment of these costs. [16] Mr Allan says that both Otto Paschkewitschus and Cooperative Builders Pty Ltd should be liable because: a) Both were named on the application; b) Both are parties to the contract that formed the basis of this claim; c) Cooperative Builders is not registered as a builder in Queensland and Otto Paschkewitschusis the only person who arguably could make the claims put forward by the application. [17] Cooperative Builders says it alone is responsible for any costs order as the applicant company noted on all documentation and correspondence. [18] In the Tribunal’s view, the short answer to this is that the matter was conducted throughout between two parties - Cooperative Builders and Mr Allen. [19] There were always other parties that could have been joined to the action by application by either side, for example Otto Paschkewitschus and Mr Allan’s other partners - Mr Adolphe being one of them. [20] However neither side applied to have the Tribunal formally join any other party and it can be seen from all orders and directions that issued from QCAT through the course of this matter, that the Tribunal considered the parties to be Cooperative Builders and Mr Allan only. [21] It follows then that any costs order can only be made between the parties to the matter. For that reason, Cooperative Builders Pty Ltd will alone be responsible for the payment of the costs award. -- 4 of 4 --