ABM Investments (TAS) Pty Ltd v Ceccato [2012] QCAT 243

CITATION: ABM Investments (TAS) Pty Ltd v Ceccato and Anor [2012] QCAT 243 PARTIES: ABM Investments (TAS) Pty Ltd v Mrs Andrea Ceccato Mr Robert Ceccato APPLICATION NUMBER: BDL320-10 MATTER TYPE: Building disputes HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Alexander Crawford, Member DELIVERED ON: 18 June 2012 DELIVERED AT: Brisbane ORDERS MADE: That the applicant pay the: 1. Respondents’ costs of the application and counter application to be assessed on the standard basis, in accordance with the District Court Scale of Costs and certified as fit for counsel, by Hickey & Garrett, Legal Costs Assessors, Level 21, 141 Queen Street, Brisbane; and 2. Costs of such assessment as also so assessed, within fourteen days of such assessment. CATCHWORDS: BUILDING DISPUTE – APPLICATION FOR COSTS – other factors that affect the discretion to award costs Queensland Building Services Authority Act 1991, s 77 Lyons v Dreamstarter Pty Ltd [2012] QCATA 71 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 Tamawood Ltd v Paans [2005] QCA 111 Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 Latoudis v Casey (1990) 170 CLR 534. Donald Campbell & Co v Pollak (1927) AC 732 APPEARANCES and REPRESENTATION (if any): -- 1 of 4 -- 2 This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] On 14 March 2012 the Tribunal following the hearing of the building dispute ordered as follows: 1. The Application is dismissed. 2. The Applicant pay to the Respondent the sum of $207,440.88 on or before 4:00 pm on the 20 April 2012. 3. The Applicant pay to the Respondent interest on the sum of $148,083.88 at 10% from 24 August 2010. 4. The Respondent’s submissions, if any, as to costs, to be filed and served on the Applicant by 4:00 pm on the 20 April 2012. 5. The Applicant’s submissions, if any, as to costs, to be filed and served on the Respondent’s by 4:00 pm on the 21 May 2012. 6. The issue as to costs to be determined on the papers. [2] On 18 April 2012 the respondents’ solicitors filed in the Tribunal a copy of their clients’ submissions as to costs. [3] No submissions as to costs have been filed by the applicant. [4] The respondents submit that it is now accepted, in respect of the determination of building disputes, the Tribunal has an unfettered jurisdiction to award costs although that jurisdiction must be exercised judicially.1 [5] The decision regarding costs referred to in the footnote below has been referred to by the President of the Tribunal Justice Alan Wilson in Lyons v Dreamstarter Pty Ltd [2012] QCATA 71 where His Honour says as follows: [6] Under the QCAT Act the usual position is that parties will bear their own costs: s 100. That provision contains, however, an introductory phrase (‘Other than as provided under this Act or an enabling Act…’) and, as the Deputy President identified in her decision in Mr Lyon’s appeal, there is a relevant enabling Act which applies to the dispute here and contains a provision about costs: s 77 of the Queensland Building Services Authority Act 1991 which, in s 77(2)(h) gives the Tribunal a power to award costs. [7] As the learned Deputy President also identified, this is what ss 6 and 7 of the QCAT Act refer to as a ‘modifying provision’ and it prevails over the provision of the QCAT Act which must therefore be read, with any 1 See s 77 of the Queensland Building Services Authority Act 1991 in particular subsections (1), (2) and (2)(h) and also the decision of Her Honour Judge Kingham in Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 at [30]-[38] in particular [32]-[34]. -- 2 of 4 -- 3 necessary changes, as if the modifying provision was part of the QCAT Act. [8] The effect, as the learned Deputy President went on to say, is to give QCAT a broad general power to award costs in cases caught by these enabling provisions which, in the case of s 77(2)(h), is to be exercised ‘judicially’2. [9] In building cases that have elements of complexity, the Queensland Court of Appeal has suggested that costs awards will not be surprising.3 That case concerned, however, costs provisions in different legislation governing QCAT’s predecessor Tribunal. [10] In any event, the power to award costs under the QBSA Act, while expressed in succinct terms, indicates that the question of costs is to be addressed in markedly different terms from s 100 of the QCAT Act. [11] The High Court has said that there is no automatic rule that costs ‘follow the event’ (i.e., the outcome of the proceeding) or that the unsuccessful party must compensate the successful one.4 The discretion to award costs starts with the proposition that it is just and reasonable that a party who causes another to incur costs should reimburse the other party for them.5 Otherwise, the factors affecting the discretion will vary in each case.6 [6] The respondents submit that in the present case the usual and applicable rule should apply namely that costs follow the event. [7] They say they have been wholly successful and there are no countervailing factors against the making of an award to warrant the Tribunal to make an award of costs in their favour. [8] Alternatively they say that another basis to make an award of costs is in the interests of justice, that is if the costs regime in the QCAT Act were to apply without contrary legislative intent being evident. [9] The Tribunal considers the appropriate procedure is to award costs particularly bearing in mind the decision in footnote 1 and the further exposition by the President in the paragraphs referred to above. [10] The Tribunal notes that in the last paragraph of the President’s decision he states the discretion to award costs starts with the proposition that it is just and reasonable that a party who causes another to incur costs should reimburse other party for them. Otherwise, the factors affecting the discretion will vary in each case. [11] In the present case the elements of the discretion must include the fact that the respondents have been wholly successful. 2 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142, at para [33]; Latoudis v Casey (1990) 170 CLR 534 at 557. 3 Tamawood Ltd v Paans [2005] QCA 111, per Keane JA at [32]. 4 Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 at [26]. 5 Latoudis v Casey (1990) 170 CLR 534. 6 Donald Campbell & Co v Pollak (1927) AC 732 at 811-12. -- 3 of 4 -- 4 [12] The additional elements of the discretion, some of which elements appear in the respondents’ submissions and the Tribunal has taken into account, include the following: (a) While the applicant was the progenitor of the litigation it attempted to abandon it at the outset; (b) The applicant’s conduct of the hearing caused it to become protracted such that it had to be adjourned part heard and took twice the estimated time. For example about one half of the first day of the hearing was lost due to the applicant having failed to pay a costs order made against it (due to an earlier trial date having been aborted through the applicant’s failure to comply with the Tribunal’s directions) resulting in the applicant’s claim being stayed until the applicant paid those costs so the hearing could proceed; (c) The dispute involved complex questions of fact and law. (d) The respondents, being homeowners, have had to fund the litigation, from their own resources and not as part of any business enterprise which was the applicant’s case; and (e) The respondents had leave to be legally represented, this being given by the Tribunal on 15 December 2010 after application by them. [13] The Tribunal notes that the applicant also chose to be legally represented until the eve of the hearing. [14] Accordingly the Tribunal considers the respondents are entitled to an order for the applicant to pay their costs both of the application and counterclaim. [15] The Tribunal accepts the respondents’ submission that the correct approach is to adopt an assessor, the costs of which should be paid by the applicant, to determine the respondents’ standard costs by reference to the District Court scale of costs. [16] Accordingly the Tribunal makes the following orders. That the applicant pay the: 1. Respondents’ costs of the application and counter application to be assessed on the standard basis, in accordance with the District Court Scale of Costs and certified as fit for counsel, by Hickey & Garrett, Legal Costs Assessors, Level 21, 141 Queen Street, Brisbane; and 2. Costs of such assessment as also so assessed, within fourteen days of such assessment. -- 4 of 4 --