Ibrahim v PGH Bricks and Pavers Pty Ltd
[2018] QCAT 380
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- Unreported Judgment
- Ibrahim v PGH Bricks and Pavers Pty Ltd[2018] QCAT 380
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Ibrahim v PGH Bricks and Pavers Pty Ltd[2018] QCAT 380
Ibrahim v PGH Bricks and Pavers Pty Ltd[2018] QCAT 380
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: | Ibrahim & Anor v PGH Bricks and Pavers Pty Ltd & Anor [2018] QCAT 380 |
PARTIES: | MICHAEL IBRAHIM (first applicant) PAMELA TRUMPER (second applicant) |
| v |
| PGH BRICKS AND PAVERS PTY LTD (first respondent) SUPERIOR HOMES PTY LTD |
APPLICATION NO/S: | BDL049-17 |
MATTER TYPE: | Building matters |
DELIVERED ON: | 5 November 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Kent |
ORDERS: | Michael Ibrahim and Pamela Trumper to pay PGH Bricks and Pavers Pty Ltd its costs fixed at $3,740.00 by 14 December 2018. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where general rule that successful party is entitled to costs in building dispute – where competing expert evidence – where one party’s witness declared not to be an expert – where no evidence of financial circumstances of unsuccessful party being sufficiently precarious to displace general rule that costs follow event –– where decision to obtain second building report late in proceedings was unreasonable Queensland Building and Construction Commission Act 1991 (Qld), s 77 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 107 A L Builders Pty Ltd v Fatseas (No. 2) [2014] QCATA 319 Civic Steel Homes v Mitra [2006] QDC 322 Faulks v New World Constructions Pty Ltd (No. 2) [2014] QCAT 329 Joanne Baxter and Fifities Food Pty Ltd atf The Ninja Bear Trust t/as Subway Wynum Central v Subway Realty Pty Ltd and Kennion (Trustees) Pty Ltd [2013] QCAT 316 Leo v Paulsen [2010] QCAT 122 Lyons v Dreamstarter Pty Ltd [2010] QCAT 447 |
APPEARANCES: |
|
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). | |
REASONS FOR DECISION
What is this application about?
- [1]Michael Ibrahim and Pamela Trumper (the applicants) unsuccessfully sought orders against PGH Bricks and Pavers Pty Ltd (first respondent) and Superior Homes Pty Ltd (second respondent) in a building dispute.
- [2]Having received submissions from two of the parties, the remaining issue for the Tribunal to decide is whether to award costs.
Should Michael Ibrahim and Pamela Trumper pay PGH Bricks and Pavers Pty Ltd costs?
- [3]The Tribunal may award costs when deciding a building dispute.[1]
- [4]In the case of Lyons v Dreamstarter Pty Ltd,[2] with costs arising out of building disputes, former Deputy President Kingham stated that pursuant to s 7 of the Queensland Civil and Administrative Tribunal 2009 (Qld) (QCAT Act), s 77(1)(h) of the Queensland Building Services Authority Act 1991 (Qld) (now s 77(1)(h) of the QBCC Act) modifies s 100 of the QCAT Act, so that s 77(1)(h) is read as part of the QCAT Act.
- [5]Section 77(1)(h) does not provide guidance or prescription about the occasions for, or conditions of, exercise of the power to award costs.
- [6]The applicants submit that they are not claiming any costs. They expressed the view that they had just wanted their home “fixed”. It was their submission that they only knew the bricks were faulty due to being advised of this by the first and second respondents. They said without being told this by the other parties “we wouldn’t know and we wouldn’t even got through all of that for three and a half years and spend money on legal costs and experts”. Possibly in reference to an offer to render their house made by the second respondent at an early stage of their dispute, the applicants said “we are those people who don’t like it” and “And I guess know (sic) we have to spend the Money (sic) to render the house as we have no choice”.
- [7]The applicants provided no evidence of whether their financial circumstances are sufficiently precarious to displace the general rule that costs follow the event in building disputes.
- [8]The first respondent seeks an order that the applicants pay their costs in relation to the cost of the expert report of Brent Smith of Twenty 20 Building Consultancy. It was their submission that the costs they are claiming were only incurred due to the applicants “...not being happy with their expert’s finding (All Suburbs) at the last minute they engaged the services of Jim’s Building Inspections, who you chose not to recognise as an expert”.
- [9]Mr Rex Southern who prepared the Jim’s Building Inspection Report and gave evidence at the hearing told the Tribunal that he was not “giving evidence as expert and that the report and his testimony only contained his opinion as a builder and was not meant to be an expert’s report”.
- [10]The Tribunal made a finding that Mr Southern was not an expert for the purposes of the hearing.
- [11]During the hearing one of the applicants, Mr Ibrahim, gave evidence that he “had to get another report after I read the second report” from his original building inspector (All Suburbs). It appeared he was not satisfied with the fact that it stated that the defective bricks had been satisfactorily rectified by PGH Bricks and Pavers Pty Ltd and bar a few minor issues the brickwork on the house was now satisfactory.
- [12]Mr Southern’s report was filed with QCAT on 9 April 2018. It is the first respondent’s contention that this required them to seek a new response to this from Mr Smith as he had based his report on the All Suburbs reports.
- [13]At a directions hearing on 18 July 2018, leave was given to the first respondent to allow them to “file any expert evidence statement which is responsive to the report of Jim’s Building inspections”. The time limit placed on this direction was that the statement must be filed ad a copy given to the applicants by 4pm on 27 July 2018, a date prior to the 1 August listed hearing date.
- [14]The first respondent wishes to claim the cost of preparing the report and the cost of Mr Smith’s attendance to give evidence. This is claimed on the basis that PGH had “in the whole process, met all commitments and requirements as per the two building reports for All Suburbs Building Inspections and Reports, to rectification and this should have been the end of the matter.” It was submitted that because the applicants were not happy with the All Suburb’s findings they sought another report.
- [15]The second respondent did not make any submissions as to costs.
The relevant law
- [16]The applicants refer the Tribunal to s 100 of the QCAT Act and submit that there should be no departure from the position in s 100 that each party bear their own costs. Neither the applicants nor the first respondent referred the Tribunal to any legislation or cases to support their submissions.
- [17]The general rule in building disputes is that a successful party is entitled to recover its costs from the other party.[3]
- [18]Both the first and second respondents have successfully responded to Mr Ibrahim and Ms Trumper’s application. The first respondent submitted that it has had to spend money to do that, in particular due to the third report being obtained by the applicants and the need to respond to this. The first respondent argues it would not be fair that it should have to pay all those costs.
Should the applicants pay the costs requested?
- [19]The Tribunal dismissed this application and on this basis the respondents were clearly successful.
- [20]The applicants’ choice to obtain a third report on the basis of their displeasure with their original expert’s view that the defects had been largely rectified, clearly caused the respondents some cost and effort at a very late stage in proceeding as they had to obtain another report to counter the material contained in Mr Southern’s report. This meant that they had to defend the matter on a different bias to the material already filed in the proceedings.[4]
- [21]The first respondents expended considerable resources on issues that, in light of Mr Southern’s evidence and the Tribunal’s finding that he was not an expert, appear to have been unnecessarily incurred. I therefore consider it would not be unreasonable for the first respondent to recover from the applicants any costs incurred in pursuing those issues.
What are the appropriate orders?
- [22]The applicants’ application was dismissed because they did not prove that the bricks were still defective despite seeking a third report on the matter when told by their original expert that the issues had been largely rectified.
- [23]The applicants therefore should pay costs because their actions caused the first respondent to spend money to successfully respond to the changes in the evidence supporting their application.
The Tribunal must fix costs if possible
- [24]The first respondents submitted that its costs were $3,740, being the preparation of the report and attendance and giving of evidence by Mr Smith in response to the applicants’ report obtained from Mr Southern. They attached to their submission receipts for payment of invoice for Mr Smith for this work.
- [25]After viewing these attachments I will proceed to fix costs on the material before me, consistent with the Tribunal’s mandate to deal with matters in a way that is accessible, fair, just, economical, informal and quick.
- [26]I have awarded the first respondents its costs as requested, that is the amount of $3,740
- [27]I will allow the applicants 14 December 2018 to pay.
- [28]The appropriate Order is therefore that the applicants are to pay the first respondent its costs fixed at $3,470 by 14 December 2018.
Footnotes
[1] Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act), s 77(2)(h).
[2] [2010] QCAT 447.
[3] Faulks v New World Constructions Pty Ltd (No. 2) [2014] QCAT 329, [17]; A L Builders Pty Ltd v Fatseas (No. 2) [2014] QCATA 319, [4].
[4] Civic Steel Homes v Mitra [2006] QDC 322; Leo v Paulsen [2010] QCAT 122 cited with approval in Joanne Baxter and Fifities Food Pty Ltd atf The Ninja Bear Trust t/as Subway Wynum Central v Subway Realty Pty Ltd and Kennion (Trustees) Pty Ltd [2013] QCAT 316, [22].