Chesterton as administratix of the estate of Southion Deceased v Smith and Anor [2011] QCAT 458

CITATION: Chesterton as administratix of the estate of Southion Deceased v Smith and Anor [2011] QCAT 458 PARTIES: Judith Maree Chesterton as administratix of the estate of Damonde Laurence Southion Deceased v Mr Baydon Smith Mrs Desiree Smith APPLICATION NUMBER: BD448-08 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Sandra Deane, Member DELIVERED ON: 20 September 2011 DELIVERED AT: Brisbane ORDERS MADE: [1] Except to the extent that the costs are already included in Order 2 Mr and Mrs Smith are to pay Ms Chesterton’s costs of and incidental to the proceeding, including reserved costs as referred to in the decision of the former tribunal dated 12 May 2009 on the standard basis of assessment in accordance with the District Court Scale of Costs up to and including 3 May 2011. [2] Except to the extent that the costs are already included in Order 3 Mr Smith is to pay all of Ms Chesterton’s reasonable costs (being actual costs incurred by Ms Chesterton providing the costs are reasonably incurred and of a reasonable amount) in relation to the following: a. the costs incurred by Ms Chesterton as a result of Mr Smith’s failure to comply with item 1 of the Tribunal’s Direction dated 23 September 2010 for the period 22 September 2010 to 9 November 2010, excluding half of the costs of the Experts’ conclave on 1 November, 2010; -- 1 of 17 -- 2 b. Ms Chesterton’s costs of and incidental to the Directions Hearing on 9 November 2010; c. the costs incurred by Ms Chesterton as a result of Mr Smith’s failure to provide a proper response to Ms Chesterton’s Scott Schedule for the period 9 November 2010 to 2 February 2011, excluding half of the costs of preparing the joint experts’ report; d. Ms Chesterton’s costs of and incidental to the Directions Hearing on 2 February 2011 (excluding the costs of attending a Directions Hearing for a duration of 10 minutes only); e. Ms Chesterton’s costs of and incidental to Day 3 of the hearing (held on 11 May 2011); f. Ms Chesterton’s costs of and incidental to this Miscellaneous Matters Application including the costs of the submissions in relation to the Application. [3] Mr and Mrs Smith are to pay all of Ms Chesterton’s reasonable costs (being actual costs incurred by Ms Chesterton providing the costs are reasonably incurred and of a reasonable amount) of and incidental to the proceeding from 4 May 2011. [4] If the amount of Ms Chesterton’s costs provided by Order 1 and 3 are not agreed between Ms Chesterton and Mr and Mrs Smith within 14 days, the costs are to be assessed by Hickey & Garrett, Legal Costs Consultants, Level 21, 141 Queen Street, Brisbane. [5] Mr and Mrs Smith are to pay Ms Chesterton’s costs (as agreed or assessed) within 14 days of such agreement or assessment. [6] If the amount of Ms Chesterton’s costs provided by Order 2 are not agreed between Ms Chesterton and Mr Smith within 14 days, the costs are to be assessed by Hickey & Garrett, Legal Costs Consultants, Level 21, 141 Queen Street, Brisbane. [7] Mr Smith is to pay Ms Chesterton’s costs (as agreed or assessed) within 14 days -- 2 of 17 -- 3 of such agreement or assessment. CATCHWORDS: COSTS – where party wholly successful – where offer to settle – assessment of costs Application for compensation under s 48 of the Queensland Civil and Administrative Tribunal Act 2009 – failure to comply with Tribunal directions – unnecessary disadvantage caused Queensland Civil and Administrative Tribunal Act 2009, ss 100, 102, 245, 256, 271 Queensland Civil and Administrative Tribunal Rules 2009, r 86 Commercial and Consumer Tribunal Act 2003, ss 70, 71, 142 Queensland Building Services Authority Act 1991, s 77 Kilgour v Queensland Building Services Authority [2010] QCAT 87 Adam‘s Earthworks Pty Ltd v Empire Constructions Pty Ltd [2010] QCAT 228 Hallett & Ors v Queensland Building Services Authority [2011] QCAT 355 Lyons v Dreamstarters [2011] QCATA 142 Oshlak v Richmond River Council (1998) 193 CLR 72 Latoudis v Casey (1990) 170 CLR 534 Tamawood Limited & Anor v Paans [2005] QCA 111 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Versace v Lavis [2006] QCCTB 14 Demac Homes (Qld) Pty Ltd v Queensland Building Services Authority & Ors [2011] QCAT 331 Rix v Queensland Building Services Authority [2011] 333 Velvet Glove Holdings Pty Ltd v Mount Isa Mines Limited [2011] QSC 156 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 3 of 17 -- 4 REASONS FOR DECISION Background [1] By order dated 7 July 2011 Ms Chesterton was successful in her primary claim and I directed the parties to make submissions in relation to costs generally (including reserved costs in particular those referred to in the decision of the former tribunal dated 12 May 2009 and this Tribunal of 9 November 2010) and any further submissions in relation to the Application for compensation in writing. I also directed that unless a party requested an oral hearing these applications would be determined on the papers. [2] Submissions from Ms Chesterton and Mr Smith have been received. No submissions have been received from Mrs Smith. No party has requested an oral hearing. [3] This matter was commenced in the Commercial and Consumer Tribunal (CCT). On 1 December 2009 the CCT was abolished. [4] As the CCT had not at that time started to hear the subject of the proceedings other than to have conducted case management steps such as directions hearings this matter was regarded as a pending proceeding1, was taken to be a proceeding before the Tribunal and the Tribunal has jurisdiction to deal with the matter under the QCAT Act.2 [5] Section 271 of the QCAT Act states that the Tribunal must deal with an existing proceeding (which includes a pending proceeding) under the QCAT Act or an enabling Act and can only make a decision the CCT could have made in relation to the matter under the CCT Act. [6] The Tribunal has on some occasions determined that this means that the Tribunal must determine the application for costs pursuant to the now repealed Commercial and Consumer Tribunal Act 2003 (CCT Act).3 [7] More recently the Tribunal has determined that the relevant provisions when considering whether to make an order for costs in such a pending proceeding are sections 100 and 102 of the QCAT Act.4 [8] In the Hallett decision it was accepted that: a) section 271 of the QCAT Act requires the Tribunal to deal with the matter under the QCAT Act; b) the Tribunal only had the powers that the CCT had, which included the power to award costs; c) the awarding of costs ought to be determined by application of the QCAT Act provisions i.e. section 102. 1 Section 245 QCAT Act. 2 Section 256 QCAT Act. 3 Kilgour v Queensland Building Services Authority [2010] QCAT 87; Adam‘s Earthworks Pty Ltd v Empire Constructions Pty Ltd [2010] QCAT 228. 4 Hallett & Ors v Queensland Building Services Authority [2011] QCAT 355. -- 4 of 17 -- 5 [9] I accept that reasoning. [10] Both the CCT Act and QCAT Act provide for the awarding of costs. However the starting point is different and the criteria to be considered are also expressed differently. [11] Under the CCT “the main purpose of this division is to have parties pay their own costs unless the interests of justice require otherwise”.5 The next consideration is whether, having regard to the interests of justice, in reliance on the factors set out in section 71(4) and the provisions of section 71(5) of the CCT Act, another order is warranted. [12] The QCAT Act provides “Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party‘s own costs for the proceedings.”6 [13] Section 102(1) states “The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.” [14] Section 102(3) sets out criteria to which the Tribunal may have regard. Power to award costs under the Queensland Building Services Authority Act 1991 (QBSA Act) [15] Section 77 of the QBSA Act conferred jurisdiction on the CCT and the Tribunal to determine building disputes such as the one brought by Ms Chesterton. This section has recently been considered by the Appeal Tribunal in Lyons v Dreamstarters.7 [16] In that decision the Appeal Tribunal noted that section 77(1)(h) provides that the Tribunal may award costs and does not provide further guidance or conditions of exercise of that power. The Appeal Tribunal also noted at [33]- [34] that “A jurisdiction given in general terms allows the Tribunal to make an order as to costs that is justified in the circumstances.8 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.9 Accordingly an enabling Act, the QBSA Act, does, provide otherwise. As a result, the usual position as to costs in the Tribunal is displaced.‖ [17] Ms Chesterton contends that section 77(1)(h) of the QBSA Act provides the primary power to award costs. [18] I am satisfied that this is the preferable construction given that section 271 of the QCAT Act states that the Tribunal must deal with such a proceeding under the QCAT Act or an enabling Act, which would include the QBSA Act. 5 Section 70 CCT Act. 6 Section 100 QCAT Act. 7 [2011] QCATA 142. 8 Oshlak v Richmond River Council (1998) 193 CLR 72 at 88. 9 Latoudis v Casey (1990) 170 CLR 534 at 557. -- 5 of 17 -- 6 [19] As noted by the Appeal Tribunal above whilst the discretion in section 77(1)(h) of the QBSA Act is broad it must be exercised having regard to relevant facts. [20] The usual rule is that a successful party is entitled to its costs to indemnify it for incurring the expense of the proceedings. Ms Chesterton has been successful on her primary claim. [21] There are no matters before the Tribunal which would displace the usual rule. If the proceeding had not been defended by Mr and Mrs Smith, Ms Chesterton would not have incurred the expense that she did in pursuing her claims. [22] On this basis it is appropriate that Mr and Mrs Smith be ordered to pay Ms Chesterton‟s costs of and incidental to the proceedings at least on the standard basis of assessment on the District Court Scale of Costs. Power to award costs under the CCT Act or QCAT Act [23] In the alternative, Ms Chesterton submits that if the Tribunal‟s power in sections 70 and 71 of the CCT Act to award costs is unaltered by section 77(1)(h) of the QBSA Act that Ms Chesterton should still receive a costs order in her favour. [24] For the reasons stated above at [7]-[9] I consider that the provisions of the QCAT Act are those that are applicable rather than the provisions of the CCT Act. [25] The difference between the CCT Act and QCAT Act cost provisions and the applicability of the decision in Tamawood Limited & Anor v Paans10 was considered by the President in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2).11 [26] The President commented as follows: ―In considering subsections 70 and 71 Keane JA (as His Honour then was) referred, however, to two matters relevant here. First, His Honour felt that the CCT provisions negated the traditional position that costs should prima facie follow the event (unless of course that the Tribunal considers that another order is more appropriate) and that the nature and extent of the power to award costs could only be discerned by close consideration of the terms of the statute which created and prescribed the occasions and conditions for its exercise. Section 100 and 102 of the QCAT Act attract the operation of the same principals. Second, Keane JA was of the view that where the complexity of the matter justified legal representation, it would not be in the interests of justice to bar the successful party from recovering costs that were reasonably necessary to achieve a satisfactory outcome. 10 [2005] QCA 111. 11 [2010] QCAT 412. -- 6 of 17 -- 7 That conclusion must, here, be considered in the light of the difference between section 70 of the CCT Act and section 100 of the QCAT Act. Section 70 speaks of a ‗main purpose‘ but section 100 mandates that parties shall bear their own costs. Section 70 contains, within itself, a reference to the condition or circumstance in which the main purpose may be subsumed to the interests of justice; section 100 has no such proviso, although it appears later in section 102(1).‖ [27] The President‟s analysis demonstrates that the sections are relevantly different. He went on in that decision to say: ―Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstance is relevant to the discretion inherent in the phrase ―the interests of justice‖ point so compellingly to a costs award that they overcome the strong contra – indicator against costs orders in section 100.‖ [28] It is necessary to consider the matters referred to in section 102(3) of the QCAT Act to the extent they are relevant to a particular case. Whether a party is acting in a way that unnecessarily disadvantages another party12 [29] Ms Chesterton submits that the conduct of the Respondents inevitably lead the matter into dispute. [30] In this regard I found that: a) the notice of termination was tainted and given “unreasonably or vexatiously” and was of no force or effect under clause 20.2. b) Mr and Mrs Smith had unreasonably failed to consent to Variation 006. [31] Ms Chesterton also submits that prior to commencing proceedings she sought to resolve the matter but Mr and Mrs Smith made no attempt to negotiate a settlement. [32] The conduct of the Respondents and in particular Mr Smith is the subject of an application for compensation under section 48 of the QCAT Act. [33] I found at [289]-[290] of my Reasons for Decision13 that: “Mr Smith‘s non compliance has not only affected Ms Chesterton but has also taken up the time and resources of the Tribunal and has prevented the Tribunal from taking effective steps to provide an expeditious resolution of this matter. It is more likely than not that had a proper consideration and response to the Scott Schedule been given then time would have been saved in this proceeding.‖ The nature and complexity of the dispute14 12 Section 102(3)(a) QCAT Act. 13 [2011] QCAT 307. 14 Section 102(3)(b) QCAT Act. -- 7 of 17 -- 8 [34] The dispute had a lengthy history and many factual issues were required to be determined. There were also quite a number of complex legal issues which were required to be determined. These matters justified engaging legal representation. Relative Strengths of the claims15 [35] Ms Chesterton‟s claims had merit. Her primary claim was successful and I found that her secondary claim would have been successful if the primary claim had failed. [36] Even if Mr and Mrs Smith had been successful, by demonstrating they had validly terminated the contract, a significant sum remained payable by them to Ms Chesterton because they failed to mitigate their loss. [37] It is therefore apparent that Ms Chesterton was entitled to press her claims in order to recover significant amounts due from Mr and Mrs Smith. The financial circumstances of the parties16 [38] Neither party made submissions on this point. Anything else that the Tribunal considers relevant17 [39] Ms Chesterton submits that the conduct of the Respondents, their failure to critically assess their prospects and the offers to settle are matters to be considered. [40] Mr Smith also contends that the settlement offers made are relevant as he contends that they demonstrated that he sincerely wanted to reach an agreement and not have to involve the Tribunal. Offers to settle [41] There were a number of offers made by parties to which the Tribunal was referred. Most of them were made within a few weeks of the commencement of the 5 day hearing, which commenced on 9 May 2011. This is in the context of Ms Chesterton having filed her application in the CCT on 27 November 2008. [42] They are as follows: a) 15 December 2009 – Mr and Mrs Smith offered to pay Ms Chesterton $100018. b) 21 April 2011 – Ms Chesterton offered to accept payment of $35,00019 within 14 days of the date of acceptance. The offer was open for acceptance for a period of 7 days and was sent to Mr Smith‟s solicitors. 15 Section 102(3)(c) QCAT Act. 16 Section 102(3)(e) QCAT Act. 17 Section 102(3)(f) QCAT Act. 18 Applicant‟s Submissions dated 21 July 2011 paragraph 39(a) and annexure. 19 Applicant‟s Submissions dated 21 July 2011 paragraph 39(b) and annexure. -- 8 of 17 -- 9 c) 28 April 2011 – Ms Chesterton offered to accept payment of $35,00020 within 14 days of the date of acceptance. The offer was open for acceptance until close of business 3 May 2011 and was sent to Mr Smith‟s solicitors and to Mrs Smith. d) 3 May 2011 – Mr Smith made an open offer that the parties „walk away‟.21 The offer was open for acceptance until 10am 5 May 2011. e) 4 May 2011 – Mr Smith made an open offer that the parties „walk away‟.22 The offer was open for acceptance until 10am 5 May 2011. f) 5 May 2011 – Mr Smith stated by email “I would prefer not to have to go to the tribunal, but will if need be, I am in no position to pay anyone 35K, but would be willing to consider a lesser sum over a longer period”.23 [43] The offer of 21 April appears only to have been made to Mr Smith and would therefore have been incapable of bringing the proceedings to a complete conclusion. I do not place weight upon it other than it goes to the period of time which Mr Smith had available to consider an offer of that magnitude as compared to his prospects if the matter proceeded to a hearing. [44] The offer of 28 April 2011 was an „all up‟ offer and therefore included amounts for claim, interest and costs. It was made at a time when: a) the parties had submitted their written statements of evidence; b) the Joint Experts‟ Report had been filed; c) the relevant facts were known and Mr and Mrs Smith were in a position to make an informed decision having regard to the consequences of not accepting the offer; d) Mr Smith was legally represented and presumably would have received advice as to his prospects compared to the offer. He appears to have been represented up to and including 4 May 2011; e) Mrs Smith was not legally represented. It appears that after Mr and Mrs Smith separated from in or about July 2010, Mrs Smith ceased to be legally represented and largely did not actively participate in the proceedings leaving the defence of the claim to Mr Smith. [45] The offer was for a significantly lesser amount than the amount Ms Chesterton has been awarded for claim and interest. [46] It was also for a significantly lesser amount than the amount Ms Chesterton would have been awarded for claim if Mr and Mrs Smith were found to have validly terminated. Given that it was an „all up‟ offer quantification of the 20 Applicant‟s Submissions dated 21 July 2011 paragraph 39(d) and annexure. 21 Applicant‟s Submissions dated 21 July 2011 paragraph 39(e) and annexure. 22 Applicant‟s Submissions dated 21 July 2011 paragraph 39(f) and annexure. 23 Mr Smith‟s Submissions dated 11 August 2011 and Applicant‟s submissions in Response dated 12 August 2011 paragraph 3 and annexure. -- 9 of 17 -- 10 likely impact of costs in those circumstances of partial success and comparisons with the offer are somewhat more problematic. [47] Mr Smith submits that his offers to settle (by paying initially $1,000 and subsequently to walk away) and his statement in his email of 5 May 2011 demonstrated that he sincerely wanted to reach an agreement to settle this matter. Given the strength of Ms Chesterton‟s claims and Mr and Mrs Smith‟s failure to mitigate their loss it is difficult to accept that offers to settle by paying $1,000 or to walk away were reasonable in the circumstances. [48] I do not accept that these offers were reasonable or demonstrated a genuine desire to settle this matter. [49] It is also difficult to place any weight on the email of 5 May 2011. It was not an offer capable of acceptance. It did not specify any amount but was clear that any settlement amount would be less than $35,000 and Mr Smith would require more than 14 days to pay it. [50] I do not place any weight upon that correspondence in the circumstances. [51] Ms Chesterton submits that Mrs Smith did not respond to the offer of 28 April 2011. Given Mrs Smith‟s lack of active participation and the fact that Mrs Smith has not made any submissions, I accept that submission. [52] Having regard to the matters referred to in section 102(3) of the QCAT Act it is appropriate to order that Mr and Mrs Smith pay Ms Chesterton‟s costs of and incidental to the proceedings at least on the standard basis of assessment on the District Court Scale of Costs. [53] Ms Chesterton seeks an order for indemnity costs from and including 28 April 2011 because Mr and Mrs Smith ought to have accepted the offer of 28 April 2011. [54] Ms Chesterton referred the Tribunal to section 142 of the CCT Act which provided that if a party serves a written offer to settle which complies with the CCT Act which is not accepted and in the opinion of the tribunal the decision of the tribunal is not more favourable to the other party than the offer, then the tribunal must award the party who made the offer the reasonable costs incurred after the offer was made. [55] Ms Chesterton accepts that neither of the offers of 21 April or 28 April 2011 were made in accordance with the CCT Act as they were not stated to be open for acceptance for at least 14 days from the date of service. Nevertheless Ms Chesterton submits that the Tribunal should have regard to them as Calderbank offers. The CCT has previously had regard to such offers in exercising its discretion to award reasonable costs on an indemnity basis as and from the date of such an offer.24 24 Versace v Lavis [2006] QCCTB 14. -- 10 of 17 -- 11 [56] This Tribunal has previously accepted that Calderbank offers may be relevant to the exercise of its discretion to award costs.25 [57] For the reasons set out at [7]-[9] I find that section 142 of the CCT Act is not applicable. [58] Rule 86 of the QCAT Rules 2009 provides “Additional power to award costs if particular offers to settle rejected (1) This rule applies if— (a) a party to a proceeding, other than a proceeding for a minor civil dispute, makes another party to the proceeding a written offer to settle the dispute the subject of the proceeding; and (b) the other party does not accept the offer within the time the offer is open; and (c) in the opinion of the tribunal, the decision of the tribunal in the proceeding is not more favourable to the other party than the offer. (2) The tribunal may award the party who made the offer all reasonable costs incurred by that party in conducting the proceeding after the offer was made. (3) If a proceeding involves more than 2 parties, this rule applies only if the acceptance of the offer would have resulted in the settlement of the matters in dispute between all the parties. (4) In deciding whether a decision is or is not more favourable to a party than an offer, the tribunal must— (a) take into account any costs it would have awarded on the date the offer was given to the other party; and (b) disregard any interest or costs it awarded relating to any period after the date the offer was given to the other party.” [59] For the reasons set out above at [44]-[46] I find that Mr and Mrs Smith‟s refusal to accept the offer of 28 April 2011 was unreasonable in the circumstances having regard to the factors identified by the Supreme Court in Velvet Glove Holdings Pty Ltd v Mount Isa Mines Limited26. [60] The offer of 28 April 2011 was in writing, directed to both Mr and Mrs Smith and open for acceptance until close of business 3 May 2011. [61] Mr Smith via his then legal representatives either rejected the offer by offering the „walk away‟ proposal that day or allowed it to lapse. From the facsimile transmission markings on the „walk away‟ offer it appears this offer was conveyed after close of business and therefore Ms Chesterton‟s offer had already lapsed. [62] Mrs Smith by not responding allowed the offer to lapse. 25 Demac Homes (Qld) Pty Ltd v Queensland Building Services Authority & Ors [2011] QCAT 331; Rix v Queensland Building Services Authority [2011] QCAT 333. 26 [2011] QSC 156 at [25]. -- 11 of 17 -- 12 [63] Having regard to rule 86, the decision of 7 July 2011 is not more favourable to Mr and Mrs Smith than Ms Chesterton‟s offer of 28 April 2011 and therefore the Tribunal may award Ms Chesterton all reasonable costs incurred by her in conducting the proceeding after the offer was made but is not obliged to award such costs. The offer in fact was a small fraction of the amount awarded by the decision of 7 July 2011. [64] The offer ought to have been accepted no later than 3 May 2011. Ms Chesterton has incurred costs from that time which she ought not to have been required to incur and ought to be appropriately compensated. [65] I am satisfied that “the interests of justice” point so compellingly to a costs award that they overcome the strong contra–indicator against costs orders in section 100. [66] Having regard to the section 102(3) factors and rule 86 it is appropriate that Mr and Mrs Smith pay: a) Ms Chesterton‟s costs of and incidental to the proceedings on the standard basis of assessment on the District Court Scale of Costs up to and including 3 May 2011; and b) all Ms Chesterton‟s reasonable costs (being actual costs incurred by Ms Chesterton providing the costs are reasonably incurred and of a reasonable amount) of and incidental to the proceeding from 4 May 2011. Miscellaneous Matters Application [67] Ms Chesterton‟s Application seeks an order pursuant to section 48 of the QCAT Act for compensation for reasonable costs incurred in relation to the failure to comply with the Tribunal‟s directions. The Application is pursued against Mr Smith. [68] Section 48(2)(c) provides that the Tribunal may make an order against a party causing disadvantage by not complying with a Tribunal order without reasonable excuse to compensate another for any reasonable costs incurred unnecessarily. [69] The Tribunal must consider the extent to which the party causing disadvantage is familiar with its practices; the capacity of the party causing disadvantage to act on the tribunal‟s orders and directions; and whether the party is acting deliberately.27 [70] At [257]-[296] of the Reasons for Decision in this matter I dealt with aspects of this Application. I sought further submissions prior to determining the Application. [71] Mr Smith made no further submissions in relation to this aspect of the matter. Ms Chesterton made further detailed submissions. [72] As noted at [296] of the Reasons for Decision in this matter Mr Smith‟s written submissions were to the effect that a decision in this Application 27 Section 48(3) QCAT Act 2009. -- 12 of 17 -- 13 ought not be made until the Tribunal was in a position to consider the consequences of a settlement offer made, which if it had been accepted would have resolved the proceedings prior to the time of the relevant conduct. [73] The only settlement offer to which the Tribunal has been referred to which this submission may relate appears to be Mr and Mrs Smith‟s offer of 15 December 2009 to pay Ms Chesterton $1,000. The other settlement offers set out at [42] above were made after the relevant conduct. [74] In view of the findings in relation to Ms Chesterton‟s claims I do not accept that Ms Chesterton ought to have accepted the offer of $1,000 in December 2009 and therefore avoided the possibility of the conduct the subject of the complaint. [75] As stated at [285]-[286] of the Reasons for Decision: ―A matter which must be established is whether any disadvantage was ‗unnecessary‘ as distinct from a disadvantage experienced in the usual course of a dispute proceeding. Non-compliance with the Tribunal‘s order of 16 June 2010 may have been able to be explained but it is difficult to accept that the response filed in purported compliance with the specific direction of 23 September 2010 that a detailed response in a format of a schedule was justifiable.‖ [76] Further as stated at [290]-[291]:‖It is more likely than not that had a proper consideration and response to the Scott Schedule been given then time would have been saved in this proceeding. Mr Hills‘ approach to his evidence and reports including the Joint Expert Report has also contributed to extending the time taken by this proceeding.‖ [77] Mr Smith was legally represented until shortly before the hearing. [78] At [280] of the Reasons for Decision I observed: “There has been no evidence provided to the Tribunal that would give rise to a reasonable inference that: a) Mr Smith or his lawyers did not understand the directions made by the Tribunal; b) he was in any way incapable of acting in accordance with the directions; or c) his non compliance was inadvertent.” [79] There has been nothing further placed before the Tribunal which causes me to alter that finding. [80] I am satisfied that Mr Smith‟s failure to comply with the Tribunal‟s specific direction dated 23 September 2010, particularly in light of the Tribunal‟s previous direction of 16 June 2010 with which there had not been compliance, caused Ms Chesterton unnecessary disadvantage for which Ms Chesterton should be compensated by an award of costs. As previously -- 13 of 17 -- 14 stated at [293] of the Reasons for Decision there are some difficulties in identifying what costs are able to be properly claimed. [81] Due to Mr Smith‟s disingenuous or at least unhelpful response28 and in an attempt to have a meaningful Experts‟ conclave, I accept that it was reasonable for Ms Chesterton to seek to have the Experts‟ conclave adjourned until Mr Smith had provided a proper response to the Scott Schedule even though the Tribunal refused Ms Chesterton‟s request by direction dated 29 October 2010. [82] I do not accept that Ms Chesterton would not have incurred any costs in relation to the holding of an Experts‟ conclave. As previously stated at [282] of the Reasons for Decision: “It is more likely than not that the Experts‘ Conclave was of a longer duration than it would have been if the Scott Schedule had been considered prior to it and proper response provided.” [83] It is difficult to estimate what costs would have been incurred. Ms Chesterton is entitled to some amount. It seems more likely than not that Ms Chesterton would have incurred only half the costs of the Expert‟s conclave had Mr Smith provided a proper response to the Scott Schedule. [84] On 29 October 2010 (prior to the Experts‟ Conclave which was held on 1 November 2010) Senior Member Kerrie O‟Callaghan listed the Miscellaneous Matters Application for directions on 9 November 2010. I accept that if Mr Smith had provided a proper response to the Scott Schedule when previously directed it would not have been necessary for Ms Chesterton to bring this Miscellaneous Matters Application and the Directions Hearing on 9 November 2010 would not have been required. The Tribunal reserved costs on that occasion. [85] For the reasons set out in [84] I find that Ms Chesterton is entitled to the benefit of a costs order in respect of the costs reserved on this occasion. [86] I do not accept that Ms Chesterton would not have incurred any costs in relation to the preparation of a joint expert report had a proper response been provided to the Scott Schedule. I accept that it is more likely than not that the preparation of the joint expert report took longer than it would have if there had been a proper response to the Scott Schedule prior to the report‟s preparation. [87] It is difficult to estimate what costs would have been incurred. Ms Chesterton is entitled to some amount. It seems more likely than not that Ms Chesterton would have incurred only half the costs of the joint experts‟ report had Mr Smith provided a proper response to the Scott Schedule. [88] I accept that if Mr Smith had provided a proper response to the Scott Schedule when previously directed it would not have been necessary for Ms Chesterton to bring this Miscellaneous Matters Application and the Directions Hearing on 2 February 2011 would have been of shorter duration as it would only have dealt with the primary application and not the Miscellaneous Matters Application. 28 [272] Reasons for Decision. -- 14 of 17 -- 15 [89] The Tribunal‟s direction of 9 November 2010 was that the experts were to file a joint expert report with a completed Scott Schedule. Mr Haskard prepared a summary schedule as part of the report. [90] Despite the direction of 9 November 2010 Mr Hills gave evidence that he had not at any time prior to the hearing, which would include in preparing the joint expert report, considered the items of the Scott Schedule. [91] Mr Hills responses in the summary schedule were not useful in limiting the time required at the hearing. [92] Mr Smith retained Mr Hills and is responsible for his non-compliance with the Tribunal‟s directions as that non-compliance affected Ms Chesterton. [93] Mr Haskard and Mr Hills jointly gave evidence at the Hearing for much of Day 2 and Day 3. As was observed at [104]-[106] of the Reasons for Decision it was intended that joint evidence continue on Day 4 but Mr Hills chose not to attend. [94] As stated at [290]-[291] of the Reasons for Decision: “It is more likely than not that had a proper consideration and response to the Scott Schedule been given then time would have been saved in this proceeding. Mr Hills‘ approach to his evidence and reports including the Joint Expert Report has also contributed to extending the time taken by this proceeding.” [95] It is difficult to estimate what costs would have been incurred. Ms Chesterton is entitled to some amount. It seems more likely than not that had the Tribunal‟s directions regarding responses to the Scott Schedule been complied with that the joint evidence of the experts at the hearing would have been reduced by a day. [96] It is therefore appropriate that Mr Smith pay all of Ms Chesterton‟s reasonable costs (being actual costs incurred by Ms Chesterton providing the costs are reasonably incurred and of a reasonable amount) in relation to the following: a) the costs incurred by Ms Chesterton as a result of Mr Smith‟s failure to comply with item 1 of the Tribunal‟s Direction dated 23 September 2010 for the period 22 September 2010 to 9 November 2010, excluding half of the costs of the Experts‟ conclave on 1 November 2010; b) Ms Chesterton‟s costs of and incidental to the Directions Hearing on 9 November 2010; c) the costs incurred by Ms Chesterton as a result of Mr Smith‟s failure to provide a proper response to Ms Chesterton‟s Scott Schedule for the period 9 November 2010 to 2 February 2011, excluding half of the costs of preparing the joint experts‟ report; d) Ms Chesterton‟s costs of and incidental to the Directions Hearing on 2 February 2011 (excluding the costs of attending a Directions Hearing for a duration of 10 minutes only); -- 15 of 17 -- 16 e) Ms Chesterton‟s costs of and incidental to Day 3 of the hearing (held on 11 May 2011); f) Ms Chesterton‟s costs of and incidental to this Miscellaneous Matters Application including the costs of the submissions in relation to the Application. Orders [97] Except to the extent that the costs are already included in [98] Mr and Mrs Smith are to pay Ms Chesterton‟s costs of and incidental to the proceeding, including reserved costs as referred to in the decision of the former tribunal dated 12 May 2009 on the standard basis of assessment in accordance with the District Court Scale of Costs up to and including 3 May 2011. [98] Except to the extent that the costs are already included in [99] Mr Smith is to pay all of Ms Chesterton‟s reasonable costs (being actual costs incurred by Ms Chesterton providing the costs are reasonably incurred and of a reasonable amount) in relation to the following: a) the costs incurred by Ms Chesterton as a result of Mr Smith‟s failure to comply with item 1 of the Tribunal‟s Direction dated 23 September 2010 for the period 22 September 2010 to 9 November 2010, excluding half of the costs of the Experts‟ conclave on 1 November 2010; b) Ms Chesterton‟s costs of and incidental to the Directions Hearing on 9 November 2010; c) the costs incurred by Ms Chesterton as a result of Mr Smith‟s failure to provide a proper response to Ms Chesterton‟s Scott Schedule for the period 9 November 2010 to 2 February 2011, excluding half of the costs of preparing the joint experts‟ report; d) Ms Chesterton‟s costs of and incidental to the Directions Hearing on 2 February 2011 (excluding the costs of attending a Directions Hearing for a duration of 10 minutes only); e) Ms Chesterton‟s costs of and incidental to Day 3 of the hearing (held on 11 May 2011); f) Ms Chesterton‟s costs of and incidental to this Miscellaneous Matters Application including the costs of the submissions in relation to the Application. [99] Mr and Mrs Smith are to pay all of Ms Chesterton‟s reasonable costs (being actual costs incurred by Ms Chesterton providing the costs are reasonably incurred and of a reasonable amount) of and incidental to the proceeding from 4 May 2011. [100] If the amount of Ms Chesterton‟s costs provided by [97] and [99] are not agreed between Ms Chesterton and Mr and Mrs Smith within 14 days, the costs are to be assessed by Hickey & Garrett, Legal Costs Consultants, Level 21, 141 Queen Street, Brisbane. -- 16 of 17 -- 17 [101] Mr and Mrs Smith are to pay Ms Chesterton‟s costs (as agreed or assessed) within 14 days of such agreement or assessment. [102] If the amount of Ms Chesterton‟s costs provided by [98] are not agreed between Ms Chesterton and Mr Smith within 14 days, the costs are to be assessed by Hickey & Garrett, Legal Costs Consultants, Level 21, 141 Queen Street, Brisbane. [103] Mr Smith is to pay Ms Chesterton‟s costs (as agreed or assessed) within 14 days of such agreement or assessment. -- 17 of 17 --