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Lavish Constructions Pty Ltd v Haywagner Investments Pty Ltd (No 2)[2017] QCAT 97

Lavish Constructions Pty Ltd v Haywagner Investments Pty Ltd (No 2)[2017] QCAT 97

CITATION:

Lavish Constructions Pty Ltd v Haywagner Investments Pty Ltd (No. 2) [2017] QCAT 97

PARTIES:

Lavish Constructions Pty Ltd

(Applicant)

v

Haywagner Investments Pty Ltd

(Respondent)

APPLICATION NUMBER:

BDL090-16

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

DELIVERED ON:

29 March 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application by Lavish Constructions Pty Ltd for costs is dismissed.
  2. Each party is to bear their own costs of the proceeding.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – where both parties partially successful – whether in the interests of justice to award costs

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 105

Queensland Building and Construction Commission Act 1991 (Qld), s 77

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 86

Lyons v Dreamstarter Pty Ltd [2011] QCATA 142

Lyons v Dreamstarter Pty Ltd [2012] QCATA 71

Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364

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).

REPRESENTATIVES:

APPLICANT:

Lavish Constructions Pty Ltd, represented by Mr T Haydock, director 

RESPONDENT:

No submissions

REASONS FOR DECISION

  1. [1]
    On 14 February 2017, I ordered Haywagner Investments Pty Ltd (Haywagner) to pay Lavish Constructions Pty Ltd (Lavish) the sum of $4,554.56 and made directions in respect of submissions and evidence regarding costs.   Lavish has applied for orders that:
    1. Haywagner pay Lavish’s Solicitor’s costs including outlays to be assessed by Mr Michael Graham, Costs Assessor, pursuant the appropriate Scale, on an indemnity basis.
    2. Haywagner pay Lavish’s including its Director, Thomas John Haydock, expenses (including Director’s time, travelling expenses, time travelling and any time spent working on and preparing the Application filed 13 April 2016) to be assessed and calculated by a quantity surveyor, including the quantity surveyor’s fees and expenses.
  2. [2]
    Lavish contends that it was successful and that:
    1. as usual costs should follow the event’;
    2. it incurred solicitors’ costs and expenses;
    3. its director spent time in preparing for and conducting the proceedings;
    4. it incurred administration time and wages including apprentice’s wages in conducting the proceeding;
    5. it is fair and reasonable that its expenses be reimbursed;
    6. it had to bring the proceedings to obtain the decision for Haywagner to pay it the amount found to be due.
  3. [3]
    Haywagner has not filed any submissions in response to the costs application.
  4. [4]
    In the proceedings, Lavish essentially made three claims i.e. for margin, interest and Mr Haydock’s time.  It ultimately succeeded only on the margin claim.  Lavish’s original claim was for $9,546.38 with interest continuing to accrue.  The amount found due was less than half the amount claimed.  Both parties enjoyed a measure of success in the proceeding.

Law

  1. [5]
    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.[1] 
  2. [6]
    The Tribunal’s discretion to award costs in a building dispute[2] is a broader and more general discretion than the one conferred by the QCAT Act[3] because there is an express power to award costs conferred by the Queensland Building and Construction Commission Act 1991 (Qld)[4] (‘QBCC Act’), the relevant enabling Act.  Unlike in the QCAT Act, there is no strong contra-indication in section 77 of the QBCC Act against a costs order. 
  3. [7]
    In Lyons v Dreamstarter Pty Ltd[5] the then President, Justice Wilson stated at [11]:

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.[6] Otherwise, the factors affecting the discretion will vary in each case[7].

  1. [8]
    In exercising the general discretion to award costs, I may consider the factors referred to in section 102(3) of the QCAT Act.
  2. [9]
    The then Deputy President, Judge Kingham in Ascot v Nursing & Midwifery Board of Australia[8] stated at [9]:

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.

  1. [10]
    Those considerations are largely in the nature of what may be regarded as ‘entitling’ or ‘disentitling’ factors. 

Is it in the interests of justice to exercise the discretion to award costs?

  1. [11]
    Lavish’s submissions do not address the factors in section 102(3) of the QCAT Act.  Essentially, it says that it was successful in obtaining a decision in its favour and it expended time and money in doing so. 

Whether a party acts in a way that unnecessarily disadvantages another party[9]

  1. [12]
    No matters were identified in the submissions, which might give rise to a consideration of this factor.  This is not, therefore, a factor which I am able to consider further.

The nature and complexity of the dispute[10]

  1. [13]
    No matters were identified in the submissions, which might give rise to a consideration of this factor.  Both parties were self-represented.  Neither party sought leave for legal representation on the grounds that the proceeding involving complex legal issues. 
  2. [14]
    This is not a factor in favour of an award of costs.

The relative strengths of the claims[11]

  1. [15]
    I am not satisfied that this is a factor in favour of an award of costs to either party.   
  2. [16]
    Lavish was partially successful.  In this sense, its claims were stronger on the one matter on which it succeeded. 
  3. [17]
    However, Haywagner was also partially successful to the extent that it successfully resisted the other two claims. In this sense, its claims were stronger on the matters on which it succeeded. 

The financial circumstances of the parties[12]

  1. [18]
    No matters were identified in the submissions, which might give rise to a consideration of this factor.  This is not, therefore, a factor, which I am able to consider further.

Anything else the tribunal considers relevant[13]

  1. [19]
    A factor, which is sometimes relevant, is whether or not either party sought to protect itself through the making of offers to settle.[14]  Lavish’s submissions do not identify any relevant offers to settle.  This is not, therefore, a factor, which I am able to consider further.
  2. [20]
    Another factor, which is sometimes relevant, is whether the terms of the written contract provide for the payment of costs incurred in recovering amounts owing.  Lavish’s submissions do not identify any relevant clause and my review of the written contract did not identify any such right.
  3. [21]
    In summary, both parties enjoyed a measure of success.  There was no significant dis-entitling conduct by either party.  In these circumstances and weighing all of the factors, I am not satisfied that the interests of justice require that a costs order be made in favour of Lavish.

Footnotes

[1]QCAT Act, s 100.

[2]QBCC Act, s 77(3)(h); Lyons v Dreamstarter Pty Ltd [2011] QCATA 142.

[3]QCAT Act, s 100, s 102.

[4]QBCC Act, s 77.

[5][2012] QCATA 71.

[6]Latoudis v Casey [1990] HCA 59.

[7]Donald Campbell & Co v Pollak (1927) AC 732 at 811-12.

[8][2010] QCAT 364.

[9]QCAT Act, s 102(3)(a).

[10]Ibid, s 102(3)(b).

[11]Ibid, s 102(3)(c).

[12]Ibid, s 102(3)(e).

[13]Ibid.

[14]Ibid, s 105; Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’), r 86.

Close

Editorial Notes

  • Published Case Name:

    Lavish Constructions Pty Ltd v Haywagner Investments Pty Ltd (No 2)

  • Shortened Case Name:

    Lavish Constructions Pty Ltd v Haywagner Investments Pty Ltd (No 2)

  • MNC:

    [2017] QCAT 97

  • Court:

    QCAT

  • Judge(s):

    Member Deane

  • Date:

    29 Mar 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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