Anderson v Nick Ruhle Homes Pty Ltd and Anor (No 2) [2012] QCAT 531

CITATION: Anderson v Nick Ruhle Homes Pty Ltd and Anor (No 2) [2012] QCAT 531 PARTIES: Renine Anderson (Applicant) v Nick Ruhle Homes Pty Ltd (First Respondent) Ambience Designer Pools & Spas (Second Respondent) APPLICATION NUMBER: BDL333-10 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Toowoomba DECISION OF: Michael Wood, Member DELIVERED ON: 25 October 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The Applicants pay to the First Respondent costs in the sum of $5,330.00 within 28 days of the date of this order. 2. The Second Respondent pay to the Applicant the sum of $5,330.00 by way of reimbursement of costs paid to the First Respondent. CATCHWORDS: Building Dispute – Costs Orders – Multiple Respondents – wholly successful against one Respondent – wholly unsuccessful against another Respondent Queensland Building Services Authority Act 1991, s 77 Queensland Civil and Administrative Tribunal Act 2009, ss 100, 102, 107 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 Tamawood Ltd v Paans [2005] QCA 11 APPEARANCES and REPRESENTATION (if any): -- 1 of 5 -- 2 This matter was heard and determined on the papers pursuant to section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] I made orders in these proceedings in favour of the Applicants for the payment to them of damages by the Second Respondent in the sum $25,200.00. The effect of this order is that the Applicant succeeded in whole in its claim against the Second Respondent and the First Respondent was wholly successful in resisting the Applicant’s claim. I directed that the parties file evidence and submissions regarding costs of the proceedings and that the claims for costs be determined on the papers not before 7 September 2012. [2] The Applicants, by their solicitors, provided a letter dated 17 September 2012 which was their submissions in relation to costs. Their submissions were that notwithstanding that each of the Applicant and the First Respondent were legally represented the nature and complexity of the dispute when considered in it’s entirety did not necessitate any party being represented and that those parties who chose to be represented ought bear their own costs of that representation. In effect that there be no order for costs in favour of any party. [3] The First Respondent filed submissions seeking an order for costs against the Applicant. It does so, on the basis that the case against it was not made out and that at the hearing no evidence was called which gave the Applicant any prospect of success against the First Respondent. The First Respondent seeks costs on an indemnity basis pursuant to a costs agreement entered into between Condon Charles Lawyers and the First Respondent. The total amount claimed on behalf of the First Respondent is $21,172.88. At my direction a copy of the First Respondent’s submissions were provided to the Applicant’s solicitors by email on the 10 October 2012 inviting them to reply by 5pm Friday 12 October. No response has been received. [4] The Second Respondent has not filed any submissions pursuant to the Directions. Application for Costs [5] The Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) provides (s 100) that each party must bear their costs of the proceedings other than as provided under this Act or an enabling Act. [6] The provisions relating to a costs orders pursuant to the QCAT Act included sections 102 and 107 of the Act provides that if the Tribunal makes a costs order under that Act or an enabling Act the Tribunal must fix the costs if possible. -- 2 of 5 -- 3 [7] In Lyons V Dreamstarter Pty Ltd1 the Appeal Tribunal considered the effect of the provisions of section 77 of the QBSA Act which confers a jurisdiction on this Tribunal to hear the disputes of this kind but provides in particular that the Tribunal may award costs. As noted in that decision section 77(2)(h) does not provide further guidance or prescription about the occasion or the exercise of that power. [8] The Appeal Tribunal at paragraphs 33 and 34 determined: “33. A jurisdiction given in general terms allows the Tribunal to make an Order as to costs that is justified in the circumstances. It is 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 litigation.” “34. Accordingly an enabling Act, the QBSA Act does, provide otherwise. As a result, the usual position as to costs in the Tribunal is displaced. That result is reinforced by other provisions dealing with the relationship between the QCAT Act and enabling acts.” [9] In the circumstances this Tribunal has a broad discretion to award costs. [10] Further the Court of Appeal in dealing with the question of costs has held that where a party has reasonably incurred legal costs and has been successful before a Tribunal it could not be said to be in the interest of justice to allow that success to be eroded2. The Proceedings [11] The substantive proceedings were a building dispute relating to paving a pool and spa area at the Applicant’s home. The trial was conducted in Toowoomba over approximately half a day. The Applicant called evidence from the Applicant, her husband and a builder Mr Steinmuller. There was no evidence called by the Applicant relating to the cause of the defect in the building work. The Applicant’s case at trial was that the problems which were evident with the work were breaches of contractual warranties in either the First and or Second Respondent’s contracts without seeking to identify which. [12] The evidence upon which I relied for finding that the Second Respondent was liable to the Applicant was based upon evidence called by the First Respondent. [13] I am satisfied that having regard to the lack of evidence available to the Tribunal identifying defects in the First Respondent’s work that it is appropriate to make a costs orders in favour of the First Respondent. [14] I must now consider whether the costs orders in favour of the First Respondent should be against the Applicant or the Second Respondent. 1 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142. 2 Tamawood Ltd v Paans [2005] 2 Qd R 101 at 33 Per Keane J. -- 3 of 5 -- 4 As is apparent from my findings in these proceedings the Second Respondent’s breach of its contract was the cause of the defects the subject of the dispute. Each of the parties was given leave to be legally represented in the proceedings. [15] The Second Respondent was self represented at the trial and gave evidence which I did not accept, as to the cause of the failure. [16] The proceedings at the outset were framed by the Applicant against both the First and Second Respondents on a basis very similar to the manner in which the trial was conducted. That is that it was either the First and or Second Respondent’s which were responsible without attempting to identify any particulars of the shortcoming made by the First Respondent. [17] I am satisfied in the circumstances that the proceedings were properly brought against the First Respondent as there was a contract between them which had potentially been breached. I would also make the observation that the Applicant at its own peril did not seek to call any evidence as to the cause of the defects in the work. As the Applicant commenced the proceedings against the First Respondent and continued them I consider that it is appropriate that the costs order that I make is made against the Applicant. This is not a situation where the First Respondent was joined by another party during the course of the proceedings. [18] I must then turn to the question of quantum. The First Respondent submits that the costs order which I make should be an indemnity costs order. The proceedings have not been improperly commenced or continued against the First Respondent. It was reasonable for the Applicant to commence the proceedings against the First Respondent. As I find that there was a proper basis for commencing and continuing the proceedings against the First Respondent in the circumstances decline the invitation to make an indemnity costs order. [19] I am urged by the First Respondent to make costs orders firstly on an indemnity basis but secondly pursuant to a costs agreement between the First Respondent and its solicitor. In accordance with section 107 of the Queensland Civil and Administrative Tribunal Act 2009 I am if at all possible to fix the costs. [20] Section 107(2) provides: “If the Tribunal makes a costs Order under this Act or an enabling Act, the Tribunal must fix the costs if possible.” [21] The proceedings and the issues in them have not been complex. Each of the parties sought and were granted leave to be legally represented. [22] The proceedings however relate to a not uncommon situation where a Building Contract or Contracts are entered into and there are allegations of defective work. They were overall both factually and legally -- 4 of 5 -- 5 uncomplicated. The amount of damages which were sought by the Applicant was the sum of $25,200.00 and that was the amount awarded by me in my decision. [23] That amount is well within the jurisdiction of the Magistrates Court. I consider that the appropriate scale of costs is scale G for amounts recovered between $20,001.00 and $50,000.00 and I propose allowing costs on the Magistrates Court Scale G as follows to the First Respondent: a) Item 2 – Instructions to defend $1,065.00 b) Item 5b – Preparation for Trial – $2,960.00 c) Item 7a – Solicitor on Hearing without Counsel First Day – $1,305.00 TOTAL: $5,330.00 [24] I therefore Order that the Applicant pay the First Respondent's costs in the sum of $5,330.00. [25] In accordance with the principals outlined in Tamawood Ltd v Paans and referred to at paragraph 10 above I further order that the Second Respondent pay to the Applicant the sum of $5,330.00 by way of recovery of this disbursement. -- 5 of 5 --