Cascol Constructions Pty Ltd v Blanchard [2013] QCATA 231

CITATION: Cascol Constructions Pty Ltd v Blanchard [2013] QCATA 231 PARTIES: Cascol Constructions Pty Ltd (Appellant) V Keith Blanchard & Kathryn Blanchard (Respondents) APPLICATION NUMBER: APL446-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Ms C Roney, Member DELIVERED ON: 8 August 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The Appeal is allowed. 2. Order 4 of orders of 17 December 2013 in proceeding BDL196-11 is set aside and substituted with an order that there be no order as to costs. CATCHWORDS: APPEAL – adjournment – costs order 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] The appellant applicant seeks to appeal the Tribunal’s decision of 17 December 2012 at order number 4 which reads: “Cascol Constructions Pty Ltd pay the costs of the Respondents of this day’s hearing thrown away assessed in the amount of $4000.00 by 4:00pm 31 December 2012.” [2] The appeal was filed in the Tribunal on 21 December 2012. -- 1 of 3 -- [3] The dispute BDL196-11 was scheduled for hearing at the Tribunal on 17 December 2012. The order sought to be appealed was made after some discussion at the outset of the hearing, and after the hearing was adjourned. [4] By way of background, the respondents to this appeal had filed an application for leave to be legally represented on 6 October 2011. However by the time the matter had come on for hearing there had been no order made by the Tribunal in respect of that application, although there appeared to be some confusion about this. There is no explanation for the failure by the Tribunal to decide the application for legal representation. [5] At the commencement of the hearing the Presiding Member described this omission as “strange”, which indeed it was. The application was over 12 months old by the time of the hearing. [6] The transcript of the hearing of 17 December 2012 discloses discussions between the Member and the parties about the topic of legal representation. He says: “So in all the circumstances there’s been exposure to legal advice to date, I’m going to grant leave for legal representation for both parties as the case is necessary. I understand Mr Bowley, that you are acting on behalf of Cascol Constructions, to you that’s a disadvantage. I’m going to endeavour to make sure you understand the processes before you go through.” [7] The respondent homeowners had appeared at the hearing with their barrister Ms Fitzgerald. [8] The transcript does not reveal that the appellant in these proceedings was provided with an opportunity to comment about the Member’s proposal to make an order for legal representation. [9] At an early stage in the hearing, documents were provided to the homeowners’ respondents which seemingly had not previously been disclosed to them. The appellant builders excuse for this appeared to be that those documents had been given to the homeowners during the course of construction and it did not see a need to give them to them again. [10] This disclosure issue caused the trial to adjourn. The idea of an adjournment was initiated by the Presiding Member. He said this: “Alright, enough. Now Ms Fitzgerald if I proceed today and I did not allow that material in, I would imagine you would have to succeed to nearly the entire amount of the monies paid. Now that is a draconian result to me and has been mentioned in the matter of Cooks Construction so it’s not just my take on this as I don’t propose however to let Mr Bowley sit there and place one document after the other, before the Tribunal, peace meal old fashioned, trying to remember what they’re about, trying to justify -- 2 of 3 -- them as reason for remuneration in which you possibly are challenged to dispute. I think it has to be adjourned. But I’m only going to adjourn it on the basis that Cascol Constructions pay the costs thrown away today.” [11] The further discussion in the transcript goes to the matter of agreeing the quantum of those costs. It does not appear to me, from a reading of the transcript, that the appellant had an opportunity to be heard on the adjournment nor on the consequential point of ordering costs be thrown away and that the costs be ordered against him. [12] Not to be overly critical about the Member but there was no proper or informed discussion with this appellant about the reasons for the adjournment or why the costs order should be made against him. [13] In my view the failure to provide proper reasons for both the decision to grant an adjournment and to make a costs order and to hear from this appellant on those topics was an error of law, sufficient to find a proper basis for this appeal. [14] In my view in initiating the idea of an adjournment the Member was obliged to explain to the appellant, his possible exposure to a costs order. Indeed it may be that that explanation ought also have been given when the Member made the order allowing legal representation. [15] The failure to provide sufficient reasons for either of these decisions means that the Tribunal erred in law. [16] Formally I find that the learned Member erred in failing to give sufficient reasons for the adjournment decision, the decision to allow legal representation and the decision to award costs. I allow the appeal on the costs order and set aside the costs order. [17] In deciding the costs issue afresh, and in my discretion, I have close regard to the fact that an order for legal representation was made only at the outset of the hearing on 17 December 2012. In the exercise of my discretion I do not think it reasonable to allow the costs of the adjournment to the respondent homeowners. I decline to order costs against the appellant, I substitute the Tribunal’s order with an order that there be no order as to costs resulting from the adjournment of 17 December 2012. -- 3 of 3 --