Zoja Pty Ltd v Frost Constructions Pty Ltd
[2016] QCAT 283
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- Unreported Judgment
- Zoja Pty Ltd v Frost Constructions Pty Ltd[2016] QCAT 283
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Zoja Pty Ltd v Frost Constructions Pty Ltd[2016] QCAT 283
Zoja Pty Ltd v Frost Constructions Pty Ltd[2016] QCAT 283
CITATION: | Zoja Pty Ltd v Frost Constructions Pty Ltd [2016] QCAT 283 |
PARTIES: | Zoja Pty Ltd (Applicant) |
v | |
Frost Constructions Pty Ltd (Respondent) |
APPLICATION NUMBER: | BDL230-12 |
MATTER TYPE: | Building matters |
HEARING DATE: | 2 November 2015, Submissions on Costs filed 22 June 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Member Favell |
DELIVERED ON: | 9 August 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – REMUNERATION – COSTS – counter claim for quantum meruit – whether margin claimed reasonable – whether reasonable remuneration paid – whether respondent estopped from claiming additional margin – whether there should be a costs order Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100 Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 Frost Constructions Pty Ltd v Zoja Pty Ltd [2015] QCATA 024 Medical Board of Australia v Alroe [2016] QCA 120 Pivovarova v Michelsen [2016] QCATA 45 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Zoja Pty Ltd v Frost Constructions Pty Ltd [2014] QCAT 214 |
REPRESENTATION:
APPLICANT: | Zoja Pty Ltd represented by R. Ensbey, CBP Lawyers |
RESPONDENT: | Frost Constructions Pty Ltd represented by Thomas Richie, McCullough Robertson Lawyers |
REASONS FOR DECISION
- [1]In or about September 2010, Zoja Pty Ltd engaged Frost Constructions Pty Ltd to complete construction of a four unit multi-storey dwelling.
- [2]There was a dispute about whether or not the parties had entered into a contract in relation to the work. Zoja said that there was a contract and Frost said that there was no contract.
- [3]A dispute between the parties was heard in the Tribunal and the Tribunal found that the parties had not agreed about the calculation of payment for work to be done nor was there agreement about any profit margin to be applied.[1]
- [4]During the period of the construction work, Frost periodically rendered invoices to Zoja. Those invoices covered Frost’s cost of work, wages and included a profit margin. Zoja paid those invoices.
- [5]At the end of the construction work a dispute arose between Frost and Zoja. Frost said that Zoja had failed to pay a final invoice in the sum of $11,000 and Zoja said it had overpaid Frost because there had been an addition error in one of the invoices and further the work undertaken by Frost had been defective. The dispute resulted in Zoja commencing proceedings in this Tribunal and after that occurred Frost filed a counterclaim seeking payment of an additional $20,000 based on an alleged entitlement to a 10% profit margin. The claim was a claim in quantum meruit.
- [6]It was said that the counterclaim was the first time Frost had sought a profit margin of 10% on all costs from Zoja in respect of the project.
- [7]The Tribunal dismissed both Zoja’s claim and Frost’s counterclaim.[2] The counterclaim was dismissed because the Tribunal decided it did not have jurisdiction to decide it. That determination was appealed and the Appeal Tribunal found that the Tribunal did have jurisdiction to decide a claim for quantum meruit that relates to the performance of reviewable commercial work.[3]
- [8]The Appeal Tribunal ordered that the matter be remitted to the Tribunal without the hearing of further evidence.
- [9]The determination on the remittal was that the counterclaim was dismissed.
- [10]It was further ordered the parties to file and exchange written submissions on the question of costs within 28 days of the publication of the decision.
- [11]The Appeal Tribunal in the decision of 18 February 2015 had ordered that “The question of costs of the appeal is adjourned until final judgement of the appellant’s quantum meruit claim by the original Tribunal”
- [12]The applicant filed submissions on costs on 22 June 2016.
- [13]The applicant submits that the tribunal should order the Respondent pay the costs of the Applicant of and incidental to the application for leave to appeal and the appeal and the costs of the applicant of and incidental to the proceeding from the time the matter was remitted to the Tribunal by the Appeal tribunal.
- [14]Alternatively, it submits there should be no order as to costs.
- [15]The submission makes reference to the relevant cost provision under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
- [16]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.’[4]
- [17]The then President, Justice Wilson in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)[5] stated at [4]:
This presumption may, however, be displaced if the Tribunal considers it is in the interests of justice to order a party to pay all or part of the costs of another party: s 102(1). The phrase “in the interests of justice” is not defined in the Act but is to be construed according to its ordinary and plain meaning, which obviously confers a broad discretionary power on the decision-maker.
- [18]The then Deputy President, Judge Kingham in Ascot v Nursing & Midwifery Board of Australia[6] stated at [9]:
The public policy intent of the provisions in the QCAT Act is plain. The tribunal was established as a no costs jurisdiction. That may be departed from where the interests of justice require it. The considerations identified in s 102(3) are not grounds for awarding costs. They are factors that may be taken into account in determining whether, in a particular case, the interests of justice require the tribunal to make a costs order.
- [19]As was said in Pivovarova v Michelsen:[7] Those considerations are largely in the nature of what may be regarded as ‘entitling’ or ‘disentitling’ factors and in particular, mostly relate to conduct by the parties.
- [20]The Applicant refers to a list of factors set out in Section 102(3) without further submissions or evidence addressing those factors except it submits that the most relevant factor is the nature and complexity of the dispute. It correctly submits, in my view that the dispute was legally and factually complex concerning the law of quantum meruit which required both sides to engage lawyers to act on their behalf. It also submits that notwithstanding the fact that the Respondent’s appeal was allowed it was in substance a futile step as the respondents counterclaim was ultimately dismissed.
- [21]I note the decision in Medical Board of Australia v Alroe[8] where the court concluded that the ‘costs follow the event’ principle does not apply to QCAT proceedings.
- [22]Taking into account the relevant law concerning awarding costs in QCAT, the matters raised and determined in the hearing and the appeal the outcomes of the hearings and the appeal and the process which has lead to this determination I am not satisfied that the interests of justice require the making of any costs order.
- [23]For the reasons given above there will be no order as to costs.
Footnotes
[1] Zoja Pty Ltd v Frost Constructions Pty Ltd [2014] QCAT 214 at [45] and [68].
[2] Zoja Pty Ltd v Frost Constructions Pty Ltd [2014] QCAT 214.
[3] Frost Constructions Pty Ltd v Zoja Pty Ltd [2015] QCATA 024 [19].
[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100.
[5] [2010] QCAT 412; see also Pivovarova v Michelsen [2016] QCATA 45 at [4]–[7].
[6] [2010] QCAT 364.
[7] [2016] QCATA 45 at [7].
[8] [1916] QCA 120.