Davis v Blocksidge (No 2) [2012] QCAT 339

CITATION: Davis v Blocksidge (No 2) [2012] QCAT 339 PARTIES: Anthony Davis (Applicant/Appellant) v Michael David Blocksidge (Respondent) APPLICATION NUMBER: REO002-12 MATTER TYPE: Building matters HEARING DATE: 1 August 2012 HEARD AT: Brisbane DECISION OF: Michelle Howard, Member DELIVERED ON: 1 August 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. That Mr Davis pay to Mr Blocksidge costs in the amount of $602.25 within 14 days of these orders. CATCHWORDS: COSTS – where respondent to building claim failed to appear at hearing and later made unsuccessful reopening application – where leave not sought for legal representation in proceeding by applicant but legal costs claimed on reopening application Queensland Civil and Administrative Tribunal Act 2009, ss 100,102 Queensland Building Services Authority Act 1991, s 77 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 3 -- 2 REASONS FOR DECISION [1] On 15 May 2012, I dismissed an application from Mr Davis seeking reopening of a building proceeding, which I had previously determined in favour of Mr Blocksidge, together with his application for legal representation. [2] After Mr Davis filed his application for reopening, directions were made for him to file his submissions in support of the application, and for Mr Blocksidge to then file submissions in response. The directions indicated that the hearing would then be conducted on the papers. [3] Mr Davis’ lodged submissions which had been prepared by lawyers. Mr Blocksidge then lodged reasonably extensive submissions in response, under his own hand. However, although he did not seek leave to be represented for the reopening application, it is now clear that Mr Blocksidge sought the assistance of legal advisers to prepare his submissions in response to the reopening application. [4] Mr Blocksidge seeks an order that Mr Davis pay his legal costs associated with the reopening application in the amount of $1,730.91. He provided an itemised account from solicitors for this amount. The account is primarily for time spent taking instructions (totalling 1.4 hours) and preparing draft submissions (totalling 2.25 hours). There are other charges for sending emails seeking further instructions and incidental charges. The solicitor’s charge out rate is $380 per hour. [5] Mr Davis opposes the costs application. Again his submissions have been prepared by lawyers. He is currently unemployed and according to the submissions has no assets. However, he is apparently still able to engage lawyers himself. [6] Under section 100 of the QCAT Act, parties in the Tribunal bear their own costs other than as provided in an enabling Act or the QCAT Act. Section 102 provides for a costs order to be made in a party’s favour if the interests of justice require it. Section 107 provides for the Tribunal to fix costs if possible, when an award is made. However, the Appeal Tribunal has held that section 77 of the Queensland Building Services Authority Act 1991 (QBSA Act) which provides a broad general discretion to award costs in building disputes has modified the test to be applied in considering costs applications in these proceedings.1 The strong contra- indication against costs orders in section 100 does not apply. [7] That said, Mr Blocksidge did not seek or have the Tribunal’s leave for legal representation in the proceeding. However, he seeks costs only in relation to responding to the reopening proceedings. [8] In view of Mr Davis engaging lawyers to prepare and lodge submissions on his behalf in the reopening application, it seems reasonable to me that 1 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142. -- 2 of 3 -- 3 Mr Blocksidge considered it appropriate at that stage to engage lawyers, even though he had personally conducted the proceedings on his own behalf until that time. Given that the hearing was to be conducted on the papers, it is not surprising that leave for legal representation was not sought. Therefore, although I would usually be disinclined to grant legal costs where leave had not been granted, that consideration is not a factor in this case. Further, he has been successful in the substantive building dispute. Given the broad general discretion provided for in the QBSA Act regarding costs in these matters, it appears reasonable to me that Mr Blocksidge should succeed on his costs application. [9] However, the quantum of the building claim was initially approximately some $6,500. The award on the building dispute was small, only $4,711.55 which included an award for costs of the Tribunal’s filing fee of $255. The most applicable scale of costs is the Magistrates Courts Scale as provided for in the Uniform Civil Procedure Rules 1999, although there is not a directly referable item prescribed for preparing submissions for a hearing on the papers. Counsel’s fees to settle documents or confer for claims between $5,000 to $10,000, is prescribed at $165 per hour. I award costs on the basis of that hourly rate applying to 3.65 hours spent. That is, $602.25. -- 3 of 3 --