Sun Building Services Pty Ltd v Minh (No 2)
[2015] QCAT 344
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Sun Building Services Pty Ltd v Minh (No 2)[2015] QCAT 344
- Add to List
Sun Building Services Pty Ltd v Minh (No 2)[2015] QCAT 344
Sun Building Services Pty Ltd v Minh (No 2)[2015] QCAT 344
CITATION: | Sun Building Services Pty Ltd v Minh & Anor (No 2) [2015] QCAT 344 |
PARTIES: | Sun Building Services Pty Ltd (Applicant) |
v | |
Mr Tran Tuan Minh Mrs Pham Hoa Thi (Respondents) |
APPLICATION NUMBER: | BDL166-13 |
MATTER TYPE: | Building matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Deane |
DELIVERED ON: | 2 September 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | DOMESTIC BUILDING DISPUTE – COSTS – party substantially successful – general and broader discretion – fixing cost where possible – whether representative unnecessarily disadvantaged and ought to pay costs Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 103, s 105, s 107 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 86 Queensland Building and Construction Commission Act 1991 (Qld), s 77 Uniform Civil Procedure Rules 1999 (Qld), Schedule 3 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 Tamawood Ltd v Paans [2005] 2 Qd R 101 Stuart Homes and Renovations v Denton [2012] QCAT 43 |
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- [1]Sun Building Services entered into a contract to build a new house for Mr Tran and Mrs Pham. Disputes arose between the parties. Sun Building Services commenced these proceedings seeking payment of the amount of $37,831.35 and costs, in the amount of $5,000.00, together with interest. Mr Tran and Mrs Pham disputed liability to pay these amounts and claimed damages for defective work.
- [2]By decision dated 29 April 2015, I ordered Sun Building Services to pay Mr Tran and Mrs Pham $76,982.34 and made directions for submissions as to costs. In arriving at the amount payable I found in favour of Sun Building Services to the extent of $11,651.92, which I deducted from the amount of $88,634.26, which I found was owing to Mr Tran and Mrs Pham. Mr Tran and Mrs Pham were substantially successful but did not succeed on all aspects of their claim. The hearing was conducted over four days with written submissions subsequently filed.
- [3]By order dated 7 October 2014, I allowed Mr Tran and Mrs Pham an extension of time to file further submissions and reserved the application for costs against Sun Building Services and its lawyers, Industry Lawyers.[1]
- [4]Mr Tran and Mrs Pham claim costs in the sum of $78,492.49,[2] which is comprised of:
- Solicitors’ fees – H&N $ 4,963.26
- Solicitors’ fees – Piccardi Legal $19,477.03
- Barrister’s fees $17,979.00
- Expert’s fees – Quantity Surveyor $16,879.70
- Expert’s fees – Building Expert $19,193.50
- [5]Sun Building Services did not file any submissions in relation to costs in response to my initial directions. I made further directions[3] allowing an additional period within which Sun Building Services was permitted to make submissions on costs including the application for costs made by Mr Tran and Mrs Pham. Sun Building Services has not filed any submissions. In accordance with my directions of 16 July 2015, I have determined the application for costs, on the basis of the submissions and evidence as filed.
- [6]Mr Tran and Mrs Pham submit that Sun Building Services should not be entitled to any costs and that their claim should be ordered to be paid in full. The submissions do not expressly reference the issue of reserved costs. They submit that their solicitors’ invoices were significantly discounted as a result of their ‘perilous financial position’ and that having regard to the work performed ‘are more in nature of Party – Party costs rather than solicitor – own party costs’.[4]
- [7]This submission recognises that a successful party is not usually awarded all of its actual costs unless there are circumstances warranting an order that the successful party be indemnified for its costs.
- [8]
- [9]The Tribunal, in exercising its general discretion to award costs, may consider the matters referred to in s 102(3) of the QCAT Act. Mr Tran and Mrs Pham’s submissions do not address those matters other than to submit that ‘the case was not complicated as such, save for the language difficulties’.
- [10]The relative strength of the claims is a factor in favour of an award of costs. Ultimately, Mr Tran and Mrs Pham were substantially successful in their claims and in defending Sun Building Services’ claims.[7]
- [11]The financial circumstances of the parties is not a factor in favour or against an award of costs as there is evidence before the Tribunal which suggests that both parties’ financial positions are not strong.
- [12]If a costs order is not made Mr Tran and Mrs Pham’s success will be eroded through legal costs. This is a factor in favour of an award of costs[8].
- [13]The QCAT Act and the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’) allows the Tribunal to award costs if an offer to settle had been made but not accepted. The Tribunal may award all reasonable costs incurred in conducting the proceeding after the offer was made.[9] Mr Tran and Mrs Pham’s submissions do not draw my attention to any relevant settlement offers.
- [14]At the commencement of the hearing, I placed a document labelled ‘without prejudice save as to costs’ in a sealed envelope.[10] In the course of considering this application, I opened that envelope. The offer set out in the document was that Sun Building Services would accept a payment to it of $28,000.00 to settle the proceedings. The offer was made shortly after these proceedings commenced.[11] The offer is not more favourable than the ultimate decision.
- [15]I am satisfied that the circumstances of this case warrant an award of costs of and incidental to the proceedings in favour of Mr Tran and Mrs Pham but not an award of all costs.
- [16]Mr Tran and Mrs Pham sought its costs of the application for miscellaneous matters filed 16 September 2014 from either Sun Building Services or its lawyers. As stated earlier I reserved the application for costs.
- [17]Mr Tran and Mrs Pham contended that Sun Building Services’ submissions went beyond the scope of the directions[12] and sought to gain an unfair advantage. As they were prepared by its lawyers Mr Tran and Mrs Pham submitted its lawyers should ‘wear the additional costs that the Applicants have incurred in preparing and filing the application’.[13] The Tribunal has power to award costs against a representative of a party rather than the party if it considers the representative is responsible for unnecessarily disadvantaging another party.[14]
- [18]In response to the application, evidence was filed,[15] which I accept, that the submissions of 14 August 2014 were filed in accordance with Sun Building Services’ written instructions.
- [19]A matter to be established is whether any disadvantage to Mr Tran and Mrs Pham was ‘unnecessary’ as distinct from a disadvantage experienced in the usual course of a dispute proceeding. I am not satisfied that the filing of the submissions of 14 August 2014 caused unnecessary disadvantage. At least in part, the application was misconceived as to the scope of the directions,[16] which in fact expressly referred to the QLeave issue.
- [20]Further, even if it did constitute unnecessary disadvantage I am not satisfied that Industry Lawyers were responsible for unnecessarily disadvantaging Mr Tran and Mrs Pham by filing the submissions of 14 August 2014 as Industry Lawyers acted on instructions.
- [21]
Quantity Surveyor’s costs - $16,879.70
- [22]I find $9,519.50 is payable for Quantity Surveyor’s costs.
- [23]The evidence filed with the submissions is FCA Tax Invoice 841-01 dated 1 May 2014 and 841-02 dated 22 July 2014. Tax Invoice 841-01 claims for 27.5 hours work to the period ending 1 May 2014. Tax Invoice 841-02 appears to be a revised invoice rather than an additional invoice. It claims for 37 hours work for the previously invoiced work to 1 May 2014 and for work to 18 July 2014. It accounts for $6,907.00 paid and claims an additional $2,612.50.
Building Expert’s costs - $19,193.50
- [24]I find $19,193.50 is payable for Building Expert’s costs.
- [25]I accept the Property Inspections Team invoices dated 14 January 2014, 30 January 2014, March 2014, April 2014, June 2014 and 22 July 2014 filed as evidence of work performed and paid in relation to these proceedings in the sum claimed.
Barrister’s fees - $17,979.00
- [26]I find $17,908.00 is payable in respect of barrister’s fees.
- [27]The evidence filed with the submissions consists of itemised Tax invoices from Steven Hogg dated 22 July 2014, 1 August 2014 and 23 October 2014. On my calculation, these invoices sum to $17,908.00 (incl GST).
- [28]In considering these costs I had regard to the amount of Mr Tran and Mrs Pham‘s successful claims and Schedule 3 to the Uniform Civil Procedure Rules 1999 (Qld) as current at 20 December 2013. In particular, I considered item 6(f) for claims up to $50,000.00, which allowed counsel fees for the first day of hearing at $1,739.00 and item 6(g), which allowed $1,154.00 for each subsequent day. As the amount recovered in relation to the successful claims were almost $90,000.00 I consider the daily rate of $2,200.00 (excl GST), whilst at the high end of the range, not unreasonable.
Solicitors’ Fees – H&N Lawyers - $4,963.26 and Piccardi Legal - $19,477.03
- [29]I find $18,113.26 is payable in respect of solicitors’ fees.
- [30]The evidence of the H&N professional costs filed with the submissions consists of:
- H&N tax invoice dated 13 September 2013 - $1,500.00 (incl GST)
- H&N tax invoice dated 20 September 2013 - $2,000.00 (incl GST)
- H&N tax invoice dated 27 September 2013 - $1,463.26 (incl GST)
- [31]The evidence of the Piccardi Legal professional costs filed with the submissions consists of:
- Piccardi Legal tax invoice dated 15 February 2014 - $3,815.00 (incl GST)
- Piccardi Legal tax invoice dated 2 April 2014 - $1,650.00 (incl GST)
- Piccardi Legal tax invoice dated 23 July 2014 - $7,100.00 (incl GST) (plus disbursements in the sum of $226.77)
- Piccardi Legal tax invoice dated 11 August 2014 - $1,980.00 (incl GST) (plus disbursements in the sum of $8.28)
- Piccardi Legal tax invoice dated 12 November 2014 - $1,980.00 (incl GST)
- Piccardi Legal tax invoice dated 21 November 2014 - $440.00 (incl GST) (plus disbursements in the sum of $33.00)
- Piccardi Legal tax invoice dated 31 December 2014 - $807.56 (incl GST)
- [32]On my calculation, the Piccardi Legal tax invoices sum to $18,040.61 ($17,772.56 for professional costs and $268.05 for disbursements other than barrister’s costs and experts’ costs, which are claimed separately).
- [33]The solicitors’ invoices do not set out a detailed itemisation of the work performed. Mr Tran and Mrs Pham changed solicitors during the course of this proceeding. It is likely that at least some of the initial work performed by Piccardi Legal duplicated work already performed and charged by H&N. The February 2014 invoice refers to ‘attendance at court inspecting court file’. It is likely that if a change in representation had not occurred then this file inspection would not have been required. Such duplicated costs ought not to be borne by Sun Building Services. It is not apparent what work was performed in respect of this matter, which was invoiced in December 2014. The last submissions were filed on 22 October 2014 and work had been invoiced on both 12 and 21 November 2014.
- [34]There is little information as to the minor disbursements claimed in the Piccardi Legal invoices. I am not satisfied that those disbursements were reasonably incurred in view of the limited evidence. The amount of $268.05 for disbursements is not allowed.
- [35]I am not satisfied that I should fix the amount of the solicitors’ professional costs in the amount established by the invoices submitted. Whilst the solicitors’ costs are relatively modest for a matter, resulting in a four day hearing, some work was likely to have been duplicated. There is limited evidence (and in some instances no evidence) as to the items of work performed, which were billed in each invoice. Mr Tran and Mrs Pham were not successful in defending all of Sun Building Services’ claims nor were they successful in establishing all of their claims. In these circumstances, it is appropriate to discount the amounts claimed. I have reduced the professional costs by the amount of the February and December 2014 invoices, being $4,622.56.
- [36]It is appropriate to provide a reasonable time for payment.
Footnotes
[1] Application for miscellaneous matters filed 16 September 2014.
[2] Submissions filed 29 May 2015 filed by Piccardi Legal.
[3] 16 July 2015.
[4] Submissions filed 29 May 2015.
[5] Queensland Building and Construction Commission Act 1991 (Qld), s 77(2)(h); Lyons v Dreamstarter Pty Ltd [2011] QCATA 142.
[6] QCAT Act s 100, s 102.
[7] Only two of Sun Building Services’ claims were allowed.
[8] Tamawood Ltd v Paans [2005] 2 Qd R 101; Stuart Homes and Renovations v Denton [2012] QCAT 43.
[9] QCAT Act s 105; QCAT Rules r 86.
[10] Letter from Industry Lawyers to H&N Lawyers dated 15 July 2013.
[11] 28 June 2013.
[12] 30 July 2014.
[13] Page 2 of Application.
[14] QCAT Act s 103.
[15] Submissions dated 3 October 2014.
[16] 30 July 2014.
[17] QCAT Act s 107.