W & E Carlsen Builders v Tresidder (No 2)
[2015] QCAT 345
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- Unreported Judgment
- W & E Carlsen Builders v Tresidder (No 2)[2015] QCAT 345
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W & E Carlsen Builders v Tresidder (No 2)[2015] QCAT 345
W & E Carlsen Builders v Tresidder (No 2)[2015] QCAT 345
CITATION: | W & E Carlsen Builders v Tresidder (No 2) [2015] QCAT 345 |
PARTIES: | William George Carlsen t/as W & E Carlsen Builders (Applicant) |
| v |
| Steven Tresidder Melissa Tresidder (Respondents) |
APPLICATION NUMBER: | BDL130-13 |
MATTER TYPE: | Building matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
RESERVED DECISION OF: | Member Gordon |
DELIVERED ON: | 2 September 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | Steven Tresidder and Melissa Tresidder shall forthwith pay to William George Carlsen t/as W & E Carlsen Builders $29,517 for costs being 60% of his fair recoverable costs. | ||
CATCHWORDS: | Costs – domestic building dispute – substantial amount owed to builder - successful set-off and counterclaim reducing the amount owed - builder successful in application for approval of payment for informal variations – whether costs of set-off and counterclaim should be awarded separately – what costs order should be made – issue estoppel arising from interlocutory costs orders Queensland Civil and Administrative Tribunal Act 2009 (2009) s 107 Queensland Building and Construction Commission Act 1991 (Qld) s 77(3)(h) Uniform Civil Procedure Rules 1999 r 702 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 Lyons v Dreamstarter Pty Ltd [2012] QCATA 071 | ||
APPEARANCES:
The matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
- [1]This is the costs decision following upon the tribunal’s decision of 30 June 2015[1] in which Mr and Mrs Tresidder were ordered to pay Mr Carlsen the sum of $62,425.07.
- [2]This decision concerns what may be the appropriate costs order to make when a home owner is successful in showing that the builder’s work was incomplete and defective, but even after the allowances and deductions are made to reflect that, the home owner still owes the builder a substantial amount of money. This decision also considers whether a builder may recover costs for a claim for payment for informal variations when the builder cannot recover these without the tribunal’s approval. This decision also deals with the extent to which an interlocutory order for costs might be binding in respect of the work done at that interlocutory stage when considering a final costs order.
- [3]A number of different types of costs orders have been mooted in the submissions, from a costs order only in favour of Mr Carlsen to a costs order only in favour of the Respondents, cross costs orders or no costs order.
- [4]The claim arose from the building of an extension to Mr and Mrs Tresidder’s house in Cairns by Mr Carlsen, a licensed builder who was engaged to do this work under a formal contract.[2] During the course of the work the Respondents asked for variations to the work. The statutory provisions applicable at the time required the variations to be in writing and signed. At first this was done, but after that the formalities were dispensed with.
- [5]Mr Carlsen billed for the work done on a monthly basis. The extension was finished to a degree sufficient for the Respondents’ occupation over the Christmas break at the end of 2012. The last payment made by the Respondents was 28 December 2012, but one third of the contract sum remained unpaid and most of the variations were unpaid.
- [6]In early March 2013 Mr Carlsen completed another variation on site. At about that time, the Respondents indicated that they were compiling a list of issues and defects and would be asking for rectification of those before making any further payments. They asked a building consultant to inspect the work and he found some work not done in accordance with the plans and that there were some defects.
- [7]On 23 May 2013 Mr Carlsen brought these proceedings on Form 26. He sought $62,631.70 being the outstanding contract sum and $19,367.34 for variations. He claimed interest at 15% on the unpaid amounts being the contractually agreed rate.
- [8]In their response to the claim, the Respondents sought an offset from the claim for incomplete and defective work. They also counterclaimed in respect of an overpayment, and claimed damages under various heads including a claim for damages for distress, disappointment and inconvenience (a solatium claim).
- [9]As is often the case in such claims, there were multiple factual and legal issues to be decided before the final figure of $62,425.07 payable by the Respondents to Mr Carlsen was reached.
- [10]That sum was made up as follows:-
Total contract sum as varied: $174,984.98
Total additional variations approved by the tribunal: $11,842.53
Total Mr Carlsen was then entitled to: $186,827.51
LESS
Paid by the Respondents or to be credited to them (including a sum of $4,061 which was in dispute) $112,830.20
Deduction for incomplete work: $5,555.00
Compensation for defective work: $17,986.50
Compensation for consequential loss (distress, disappointment and inconvenience): $1,500.00 $137,871.70
___________
Total owed to Mr Carlsen found by the tribunal: $48,955.81
Net interest to the date of the decision: $13,469.26
___________
Amount of the award: $62,425.07
- [11]By section 77(3)(h) of the Queensland Building and Construction Commission Act 1991 (Qld) the tribunal can award costs in proceedings of this type. In Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 Deputy President Kingham as she then was, explained that this meant that the usual costs position in the tribunal (that each party should bear their own costs unless it was in the interests of justice to make an order for costs) was displaced. Instead, the tribunal could make an order as to costs that was justified in the circumstances. It was a broad general discretion which ought to be exercised judicially, not upon irrelevant or extraneous considerations but upon facts connected with or leading up to the litigation.[3]
- [12]Mr Doug McKinstry solicitor acting for Mr Carlsen, and Mr C E Taylor counsel acting for the Respondents have made submissions on the question of costs. They have both argued whether it is appropriate to decide the question of costs by considering the success or failure of each party on the issues in the case. In particular, Mr Taylor says that the Respondents were successful on their set-off and counterclaim and therefore Mr Carlsen should be ordered to pay their costs of pursuing these and Mr Carlsen should be unable to recover his costs of pursuing them. And that Mr Carlsen failed to succeed on major issues and was not entitled to the award on the variations without approval by the tribunal.
- [13]In order to consider the question of success or failure on the issues in the case I shall run down the figures given above which show how the award was made up. Starting at the beginning, the total contract sum as varied was in dispute. The Respondents’ position was that there were no effective variations at all for lack of formality. I disagreed with this and found that effective variations increased the contract sum by $11,803.[4]
- [14]The informal variations in the sum of $11,842.53 required the approval of the tribunal under section 84(2) of the Domestic Building Contracts Act. 2000. Most of them were disputed as variations at all (it being said by the Respondents variously that the work was within the contract, not done at all, or done voluntarily). As it turned out, all the variations were allowed and approved under section 84(2) and Mr Carlsen recovered largely in the amounts claimed, although there were some adjustments for arithmetical errors and concessions.[5]
- [15]There were issues as to whether Mr Carlsen was able to recover anything at all on the contract and for the variations bearing in mind the provisions of sections 65 and 67 of the 2000 Act respectively which at that time restricted recovery on progress and completion payments. There was also an issue whether the work was practically completed and if not whether this meant no further amounts were recoverable. The Respondents were successful to some degree in these arguments and because the work had not been practically completed, the Respondents achieved an award of $1,755.50 for minor defects and avoided having to pay interest on the completion payment. Had that interest been awarded, it would have amounted to some $7,200.[6]
- [16]There was an issue whether an owner must allow a builder to rectify all omissions and defects. It was said on Mr Carlsen’s behalf that this knocked out the Respondents’ set-off and counterclaim entirely. However this submission failed.[7]
- [17]The question of incomplete work and defects caused most of the paperwork, took up most of the time of the hearing, and required the engagement of experts on both sides. The claim for set-off and counterclaim was about $69,800. Only a very small part of this (in the sum of $1,100) was conceded before the hearing.[8] The Respondents were successful to the extent of $30,200 odd (including the amount conceded). This was in respect of incomplete and defective work, and an overcharge. The Respondents failed on three smaller heads of the counterclaim.[9]
- [18]In the circumstances I am invited by Mr Taylor on the Respondent’s behalf to order that Mr Carlsen should pay the Respondents’ costs or that there should be no order for costs.
- [19]The difficulty with this is that it overlooks the stark fact that ignoring interest and the variations which were approved under section 84(2), on my findings at the time the proceedings were commenced the Respondents owed over $37,000 to Mr Carlsen.[10]
- [20]In addition to this, on my findings upon approval by the tribunal under section 84(2) Mr Carlsen was entitled to an amount of nearly $12,000 for the informal variations.
- [21]This means that unless Mr Carlsen was willing to forego these amounts, he had very little choice but to bring legal proceedings. In those circumstances it must be right that Mr Carlsen is entitled to a costs order in his favour. This is consistent with an accepted starting point when exercising the discretion as to costs, that it is just and reasonable that a party who causes another to incur costs should reimburse the other party for them.[11]
- [22]For the same reason I do not think it is right to say that the Respondents are entitled to a costs order in their favour because they were successful in their set-off and counterclaim. The net amount owed to Mr Carlsen when considered as a proportion of the amount in issue and considered as a proportion of the contract sum is too great for this to be fair.
- [23]Another consideration whether it is right to make a separate costs order for the set-off and counterclaim is that in this case they were closely linked. So it was always the case that the amount awarded in the set-off and counterclaim would reduce the amount Mr Carlsen was able to recover in his claim. In turn this meant that the parties when considering their risk in costs in proceeding with the litigation, and when considering what offers ought to be made, would consider this net effect. It is right that the costs order should also reflect this net effect because this type of costs order acts as a greater encouragement to the parties to settle the dispute than a separate costs order would do.
- [24]Had the amount assessed on the set-off and recovered on the counterclaim reduced the amount owed to Mr Carlsen by a greater proportion to the amount in issue or the contract sum, then making a separate order for costs or making no order for costs might have been a suitable approach. Such orders might also have been appropriate if the claim and counterclaim concerned quite separate issues.
- [25]In addition to these considerations, the Respondents’ position at the hearing was that the set-off and counterclaim exceeded Mr Carlsen’s claim to the extent to which it was properly recoverable, so that he could recover nothing. This position was however, found to be incorrect.
- [26]On the question of the informal variations, whilst it is true as submitted by Mr Taylor, that when the proceedings were commenced Mr Carlsen had no entitlement to payment for these because they required approval by the tribunal under section 84(2), this does not mean that costs cannot be awarded in respect of them. A respondent to a claim for approval runs the risk that approval will be given by the tribunal and having to pay the legal costs incurred by the builder in obtaining such approval. In this respect the informal variations are no different from any other head of claim. It may be true however, that it is difficult to assess that risk until the evidence is clear, which is a point I have considered later on the quantum of the costs award.
- [27]By section 107 of the Queensland Civil and Administrative Tribunal Act 2009 the tribunal must fix the costs if possible. However, the fact that after a final hearing only costs on the standard basis[12] are usually appropriate makes it more difficult for the tribunal to do this. A costs assessor or assessing registrar under the Uniform Civil Procedure Rules 1999 would be able to work from an itemised bill or costs statement in the form expected under those rules. However, the process required of the tribunal is not an assessment of the type which would be done in that way. Instead, the tribunal may assess the costs summarily and therefore in accordance with its aim to deal with matters in a way that is accessible, fair, just, economical, informal and quick.[13]
- [28]In the circumstances, instead of making a separate costs order on the set-off and counterclaim I think it is fairer to make a costs award in Mr Carlsen’s favour but reduce it down from 100% of the fair recoverable costs to reflect the award made in the set-off and counterclaim. It is fair to reduce the award down from 100% to reflect this because Mr Carlsen could have conceded those items in the set-off and counterclaim which were found against him. I will then also need to consider other factors which might affect the quantum of the award.
The fair recoverable costs
- [29]Here I am considering what costs Mr Carlsen would be entitled to if I were to order the Respondents to pay 100% of them. The following figures all include GST.
- [30]In Mr Carlsen’s application for costs, Mr McKinstry has provided the amount that he has billed Mr Carlsen, and then added expert’s fees and the filing fee. Then he has deducted from this the costs ordered already by the tribunal against the Respondents[14] and then taken 60% of this amount. Mr McKinstry does not explain why he took 60% of this amount. It could be that this allows for costs on the standard basis[15] or it could be that Mr McKinstry is saying that Mr Carlsen was 60% successful in his claim.
- [31]Mr McKinstry’s figures are that he has billed Mr Carlsen a total of $84,543, and so these are the solicitor-client legal costs. This figure excludes expert’s fees of $8,505.75 and a filing fee of $275.
- [32]I shall now consider the effect of the existing costs orders on these solicitor-client legal costs. These existing costs orders amount to $8,816.94 but include $1,237.50 in expert’s fees.[16] Ignoring those expert’s fees for the moment, the remainder is the sum of $7,679.44. On the face of it, the solicitor-client legal costs should be reduced by $7,679.44 because they have been ordered already. But Mr Taylor argues on the Respondents’ behalf that the solicitor-client legal costs should be reduced by a greater sum. The argument is that since some of the amount now claimed was claimed previously but disallowed, therefore the amounts disallowed cannot be sought again. He says an issue estoppel arises.
- [33]Whilst I cannot see that an issue estoppel could apply to any item of costs which the tribunal disallowed because it was not within the terms of the costs order, I can see that it would apply to any item of costs which the tribunal refused to award because it was unjustified.
- [34]Mr Taylor also makes the point that since Mr McKinstry has used the solicitor-client costs as a starting point in the claim for costs of interlocutory proceedings, this could mean that there is now a claim for the same solicitor-client costs. This is true. In the first two costs orders, costs were claimed in the sum of 60% of the solicitor-client costs incurred in dealing with the interlocutory matters.
- [35]I do need to consider these earlier costs orders to find the extent to which the solicitor-client costs have already been dealt with.
- [36]There have been three such orders.
- [37]The first was in relation to an application which the Respondents made on 24 February 2014. In that application they sought to postpone a forthcoming experts conclave and also sought to strike out the claim entirely. Both these applications were heard on the telephone by Member Hanley on 10 March 2014 and were unsuccessful. The learned member ordered the Respondents to pay Mr Carlsen’s costs of the application. In submissions for costs made on Mr Carlsen’s behalf, 60% of the solicitor-client costs were sought as being a reasonable amount recoverable on assessment. On 26 March 2014 costs were awarded in the sum of $702.24, being 60% of the solicitor-client costs of $1,170.40 for work on the application for the postponement of the experts conclave. There was also a claim for a further $1,552.32 for costs of dealing with the strike out application, being 60% of solicitor-client costs of $2,587.20 but these were not allowed. The assessment was made summarily and no written reasons were provided. It appears on the balance of probabilities that the learned member was of the view that the claimed costs of $1,552.32 (and therefore also the base figure of $2,587.20) were not justified. I agree therefore with Mr Taylor’s submission that these costs have already been held by the tribunal to be unreasonably incurred, and they are therefore irrecoverable now. The order also means that the $1,170.40 is not now recoverable.
- [38]The second costs order was made on 4 April 2014 when Member Hughes ordered the Respondents to pay Mr Carlsen the sum of $412.50 being “costs thrown away by the adjournment of the expert’s conclave of 24 February 2014”. The experts’ conclave could not take place because the Respondents’ expert failed to appear. In the decision of the learned member delivered on 4 April 2014[17] it is clear that the costs award was limited to the cost of the attendance of Mr Carlsen’s expert and that the legal costs which were claimed were not justified. The legal costs claimed were $425.04 which again were 60% of the solicitor-client costs, which were $708.40. I agree therefore with Mr Taylor’s submission that these costs have already been held by the tribunal to be unreasonably incurred, and they are therefore irrecoverable.
- [39]The third costs order was made because the Respondents did not appear at the hearing of this claim on 9 and 10 September 2014 but instead applied in writing to have it postponed. The tribunal sitting on that day did agree to adjourn the matter and relist it, but ordered the Respondents to pay Mr Carlsen’s costs thrown away by the adjournment. In submissions received by the tribunal on 12 September 2014, Mr Carlsen’s solicitors sought $7,702.20 for those costs. This time they were solicitor-client costs, but only those which were truly thrown away. They were the preparation costs for that hearing which would need to be redone at a later hearing, witness conference costs, costs relating to the adjournment application, costs for appearing before the tribunal for the adjournment application, costs of cancelling the hearing and preparation of the submissions for costs. On 3 November 2014 the tribunal ordered the Respondents to pay this amount. It is clear from the written reasons of Member Deane delivered on 3 November 2014[18] that she only awarded costs which she was satisfied were indeed “thrown away” and involved work which would need to be repeated at a subsequent hearing. There is therefore no sum to be deducted from the solicitor-client costs additional to the $7,702.20 awarded on this occasion.
- [40]A sum of $825 however, was included in this $7,702.20 for expert’s fees. Since I will be dealing with experts fees separately, I shall reduce the amount of $7,702.20 by $825 = $6,877.20.
- [41]The amounts properly deducted from the solicitor-client costs because of the existing costs orders are therefore:-
Order of 26 March 2014 item allowed $1,170.40
Order of 26 March 2014 item disallowed $2,587.20
Order of 4 April 2014 item allowed considered when dealing with experts fees
Order of 4 April 2014 item disallowed $708.40
Order of 3 November 2014 item allowed less the experts fee dealt with separately $6,877.20
Total: $11,343.20
- [42]It is right therefore to regard the solicitor-client costs of $84,543 as reduced by the sum of $11,343 to produce a figure of $73,200, as being an amount for Mr Carlsen’s costs (excluding expert’s fees and filing fee) incurred in and occasioned by the proceedings other than those parts of the proceedings already dealt with by tribunal costs orders.
- [43]These solicitor-client costs need to be reduced to produce an amount which would customarily be awarded for costs in the courts and tribunals, and therefore an amount which would be in the contemplation of the parties as recoverable in their QCAT litigation. One way to do this is to reduce the amount billed by a percentage figure which is generally accepted as likely to result from an assessment on the standard basis. In this case in the interlocutory costs applications the tribunal has been told that as a general rule, costs assessed on the standard basis will be between 50% and 70% of the solicitor-client costs, which I readily accept.[19] In the interlocutory costs applications Mr McKinstry has taken a point midway in this range. In the same way I shall take 60% of $73,200 which comes to $43,920.
- [44]To this must be added a reasonable and proportionate amount for the expert’s fee. The expert’s fee was $8,816.94. As mentioned above, the Respondents have already been ordered to pay a sum of $412.50 plus $825 (a total of $1,237.50) of this amount to the Applicant. The question arises whether the remaining amount of the bill of $7,579.44 for work beyond that already dealt with in the previous costs orders is reasonable and proportionate to the amount at stake in the case. The expert attended the property, took photographs, made a report (also considering the other side’s experts report), corresponded with the solicitors for Mr Carlsen, attended a second experts’ conclave and attended the hearing for one day. There are two things which make me think that this fee ought to be assessed downwards. Firstly, I know that the cost of attendance at the experts’ conclave which the Respondents’ expert did not attend was claimed at $412.50. Secondly, the fee is in marked contrast to that of the equivalent expert on the other side, whose fee was much less for roughly equivalent work. Because of this I assess the fee of $7,579.44 down to $5,000.
- [45]Adding this back to the $43,920 and adding the filing fee of $275 gives an amount of $49,195. In other words, if I were to order the Respondents to pay 100% of Mr Carlsen’s fair and recoverable costs I would order them to pay $49,195.
Adjustments to allow for success or failure in the proceedings and other factors
- [46]I now need to adjust the fair recoverable costs to reflect the success or failure in the proceedings and for other factors. As a starting point I shall ignore interest and use slightly rounded figures. I found that at the time of the hearing Mr Carlsen was owed $49,000. This compares with his claim that he was owed $82,000. On the face of it he was 60% successful in the claim.
- [47]The amount that Mr Carlsen failed to recover largely reflects the financial effect of the set-off and counterclaim where most of the legal and experts costs were incurred, so it is right to take 60% of the fair recoverable costs as the starting point for a costs award in Mr Carlsen’s favour.
- [48]The 60% figure might need to be adjusted for a few things.
- [49]Firstly it does not allow for the fact that the set-off and counterclaim was assessed at the time of the hearing rather than when the work was done or at the time when the claim was started (except in so far it had been expended beforehand). Because of this, the amount of the set-off and counterclaim was a little higher than it would otherwise have been and so the 60% should be a little higher.
- [50]Secondly, the amount of $49,000 includes variations of $11,800 odd approved under section 84(2). I take the point made by Mr Taylor that until the tribunal made an order approving these variations, Mr Carlsen was not entitled to any reimbursement in respect of them. One effect was that it meant that Mr Carlsen could not recover interest in respect of these variations. But it could also have some effect on costs. This is because a respondent cannot properly assess the merits of a builder’s claim for approval of variations until the evidence with respect to them is served. Even then, it may be difficult to assess the merits of the builder’s claim until the builder is cross examined on the matter. In this case, I do not think this applies because the cross examination was only successful in eroding some of the variations because of mistakes made on the paperwork. Mr Carlsen was successful on the main issue of unreasonable hardship and this was foreseeable from the written evidence. Overall, the 60% would be reduced only a little by this factor.
- [51]On balance I think the above two factors balance themselves out and so the 60% should not be adjusted because of them.
- [52]Mr Carlson recovered a further $13,470 odd in interest. This was calculated from the date of his progress claims until the date of the hearing and it was assessed at the contract rate of 15%. I omitted this award from the calculation showing that Mr Carlsen was 60% successful because it does not properly demonstrate Mr Carlsen’s success in the proceedings on the issue of interest.
- [53]The Respondents submission was that no interest was payable at all because of contraventions of sections 65 and 67 of the Domestic Building Contracts Act 2000, which then governed respectively when progress payments and a completion payment could be demanded. Mr Carlsen was successful on the section 65 argument but unsuccessful on the section 67 argument. This meant that he was not awarded interest on his invoice for the completion payment because the work had not reached practical completion stage.[20] On these issues each side was equally successful although in money terms Mr Carlsen did better.
- [54]If it had not been for the specific issues in this case going to interest, as a general proposition it is difficult to see why an interest award should be regarded as demonstrating success in the proceedings. Usually it is awarded as a way of compensating a party for being kept out of money, but it might also be an incentive to settle.
- [55]For these reasons, I do not think it is right to adjust the 60% to reflect the interest award.
- [56]Finally, Mr McKinstry points out that Mr Carlsen’s legal costs were higher than they otherwise would have been because the Respondents maintained many complaints about workmanship until close to the hearing when they were abandoned. This is accurately set out in paragraphs 18 to 22 of Mr McKinstry’s submissions as to costs. He says the costs were also increased because the Respondents were not co-operative with the processes required to achieve a smooth resolution of the issues. What happened is accurately set out in paragraphs 17 and 23 of Mr McKinstry’s submissions as to costs. Whilst costs orders were made against the Respondents because of some of these things, this was only partial compensation for Mr Carlsen.
- [57]There is no doubt that these things increased Mr Carlsen’s solicitor-client costs. Since I have decided that the Respondents should pay a proportion of those costs, they have already automatically been taken into account.
- [58]60% of the $49,195 found earlier as the correct amount of fair recoverable costs comes to $29,517. I order that the Respondents shall pay to Mr Carlsen 60% of his fair recoverable costs in the proceedings fixed in that amount.
Footnotes
[1]William George Carlsen t/as W & E Carlsen Builders v Tresidder [2015] QCAT 260.
[2] On the Master Builders Residential Building Contract standard form.
[3] Paragraph [33] of Lyons v Dreamstarter.
[4] Paragraph [97] of the decision.
[5] Paragraphs [98] to [171] of the decision.
[6] The relevant parts of the decision are paragraphs [72] to [ 92] and [172] to [215].
[7] Paragraphs [19] to [22].
[8] In respect of the tiles (item 28).
[9] Paragraphs to [26] to [71] and [216] to [265].
[10] This is $174,984.98 less $137,871.70.
[11]Lyons v Dreamstarter Pty Ltd [2012] QCATA 071 at [11].
[12] That is to say (in the terms of Rule 702 of the Uniform Civil Procedure Rules 1999) by limiting the costs to those which are necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being assessed.
[13] Section 3(b) of the QCAT Act 2009.
[14] This was in interlocutory matters and needs to be considered later.
[15] Which accords with his submissions in the interlocutory costs applications that the usual reduction for the standard basis from that billed to the client is 50 to 70% (paragraph 34 of the costs submission of 7 March 2014 and paragraph 11 of the costs submission of 13 March 2014).
[16] $412.50 for the attendance at the abortive experts conclave and $825 for preparation for the abortive hearing in September 2014.
[17]W&E Carlsen Builders v Tressider [2014] QCAT 131.
[18]Carlsen v Tressider & Anor [2014] QCAT 556.
[19] This is the band suggested by Mr McKinstry on Mr Carlsen’s behalf to allow for party and party costs in paragraph 34 of the costs submission of 7 March 2014 and paragraph 11 of the costs submission of 13 March 2014.
[20] Paragraphs [211] to [215] of the decision and paragraphs [287] to [293] for the interest calculation.