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Foster v Nicholas[2019] QCAT 184

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Foster v Nicholas [2019] QCAT 184

PARTIES:

KRISTEN TREVOR FOSTER
V
JENNIFER NICHOLAS

APPLICATION NUMBER:

BDL060-17

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member McLean Williams

DELIVERED ON:

24 June 2019

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. (1)
    The Applicant is to pay the Respondents costs as identified in paragraph 29(a) – (i) (inclusive) of the Respondent’s Submissions on Costs dated 17 September 2018, together with the Respondent’s costs of having her solicitors attend the Tribunal directions hearing on 7 September 2018. 
  2. (2)
    Costs are to be assessed on an indemnity basis in accordance with the District Court Scale by a legal cost assessor selected by the Respondent from the Register of Approved Cost Assessors maintained on the Queensland Courts website.
  3. (3)
    The Applicant is to pay the Respondent within 21 days after receiving a copy of the cost assessment identified in (2), above.

CATCHWORDS:

Building Dispute Costs;  Circumstances in which an award of costs on an indemnity basis is appropriate

Queensland Civil and Administrative Tribunal Act 2009 ss. 48, 102.

Queensland Civil and Administrative Tribunal Rules, Rule 87

Queensland Building and Construction Commission Act 1991 s.77

APPEARANCES and REPRESENTATION (If any):

The Applicant, in person.

Mr Brett Saal, of Saal & Associates Lawyers, on behalf the Respondent.

Reasons for Decision

  1. [1]
    On 17 October 2018 the Tribunal gave directions in this matter regarding the filing of submissions on costs.  These required that the Respondent (as the Applicant for costs) file submissions in the Tribunal and provide a copy of same to the Applicant by 14 December 2018.  Thereafter the Applicant had until 9 January 2019 to make any submissions in reply.  Submissions were provided by the Applicant, on 11 January 2019.
  2. [2]
    These now are my reasons for awarding costs to the Respondent, on an indemnity basis.
  3. [3]
    Originally, this matter was set down as a two-day building dispute, at Caloundra, commencing on 1 February 2018.  The Applicant was self-represented and the Respondent was legally represented by Mr Saal, solicitor of Saal & Associates.  The Respondent had sought and obtained leave from the Tribunal for that legal representation prior to the hearing on 1 February 2018.
  4. [4]
    Shortly after the commencement of the hearing on 1 February 2018, the matter was adjourned at the request of the parties in order that discussions might take place in an attempt to resolve the dispute.  The parties were able to agree on a settlement on 1 February 2018 yet required additional time in order to refine specific terms of the settlement and the proposed consent orders.  In light of this, the hearing was adjourned until 13 February 2018.
  5. [5]
    Between 1 February 2018 and 13 February 2018 Mr Foster and Mr Saal negotiated, and reached an agreement regarding terms of the proposed orders.  On 13 February 2018 Mr Foster and Mr Saal appeared before me, again at Caloundra.  Consent orders in the terms that had been negotiated were then made by the Tribunal. 
  6. [6]
    The orders  made on 13 February 2018 annexed a report by a Mr Paul Bloomer of ‘Coastal Home and Building Inspections’, dated 25 April 2017 (‘the Bloomer Report’). 
  7. [7]
    Paragraphs 3 – 25 (inclusive) of the Bloomer report identified the outstanding works that were agreed by the consent orders to be personally undertaken by the Applicant in order to have the building project at the centre of this dispute attain practical completion.  These works were to be completed by 31 March 2018. The orders required (pursuant to order 25) that the Applicant and the Respondent enter into a new ‘Master Builders – Residential Building Contract – Level 2’ for the outstanding works identified in the Bloomer Report.
  8. [8]
    On 26 February 2018 the Applicant forwarded a ‘Queensland Master Builders Renovation Contract – Level 2’ to the Respondent’s solicitors.  Aside from this being a different form of contract, that contract also proposed a contract arrangement between Foster Building Group Pty Ltd and the Respondent, in lieu of one between the Applicant and the Respondent, as required by the orders.
  9. [9]
    Between 26 February 2018 and 1 March 2018, the Applicant and the Respondent attempted to negotiate terms for the new agreement, yet without success.  On 1 March 2018 the Applicant removed his workers and equipment from site on the basis that the new contract was not in a form acceptable to him.
  10. [10]
    On 9 March 2018 the Respondent’s solicitor obtained the results for QBCC licence searches of the Applicant and Foster Building Group Pty Ltd.  These revealed that the Applicant’s QBCC licence had been cancelled on 27 August 2017, approximately 5 months before the Tribunal hearing scheduled for 1-2 February 2018, and before the Applicant had negotiated terms for the consent order made by the Tribunal on 13 February 2018.  The QBCC licence searches also revealed that the licence for Foster Building Group Pty Ltd did not commence until 9 February 2018, 8 days after the commencement of the original Tribunal hearing at Caloundra, and 4 days before the consent orders were entered into by the Applicant. 
  11. [11]
    The Respondent submits that the Applicant was never in any legal position to comply with the consent orders, or even to negotiate the terms of them, as agreed.  I accept that submission.
  12. [12]
    On 10 August 2018 the matter was brought before me again.  On that occasion the Tribunal vacated the consent order made on 13 February 2018 with the exception of paragraph 37.  In all other respects that matter was adjourned until 7 September 2018, this time at the specific request of the Applicant, in order for him to obtain some legal advice. 
  13. [13]
    On 7 September 2018 the Applicant advised the Tribunal – only after he was telephoned by the Tribunal - that he had suffered a house fire, and had not obtained any legal advice and would now require another adjournment.  The Applicant also informed the Tribunal that he had not been able to contact the Tribunal or the Respondent by telephone or email prior to 7 September 2018, despite his appearing by telephone on 7 September 2018 using the same mobile telephone number as had been provided to the Tribunal on prior occasions.  I do not accept the genuineness of the Applicant’s reason for having failed to obtain legal advice prior to 7 September 2018, particularly  in circumstances wherein that was the reason given by the Applicant on 10 August 2018 for requesting that the matter be adjourned until 7 September 2018.
  14. [14]
    Subsequently, directions were made for the filing of written submissions regarding costs.  These have now been received and considered by the Tribunal.
  15. [15]
    The Respondent submits that she has incurred significant costs thrown away in consequence of the Applicant not holding a QBCC licence at the time that the consent order was negotiated and entered and in consequence of the Applicant failing to appear before the Tribunal on 7 September 2018 without sufficient reason.  Other than for the costs of 7 September 2018, the Respondent identifies her costs thrown away by the conduct of the Applicant prior to 7 September 2018 arise as a consequence of:
    1. (a)
      Her solicitors negotiating terms of consent orders with the Applicant between 2 February 2013 and 13 February 2018.
    2. (b)
      Her solicitors needing to attend the Tribunal on the return date of 13 February 2018.
    3. (c)
      In her dealing, again via her solicitors, with the Applicant between 26 February and 1 March 2018 in relation to the terms of the new contract required by the consent order.
    4. (d)
      In being required to instruct her solicitors to prepare, file and then serve her Application for reopening, renewal or amendment regarding the consent orders previously obtained from the Tribunal on 13 February 2018.
    5. (e)
      In her solicitors needing to prepare, file and serve written submissions in support of the Application for reopening, renewal or amendment before also reading the Applicant’s submissions in response to that application, and in attending the Tribunal on the return date (10 August 2018) for the Application for reopening, renewal or amendment; and in preparing a further affidavit of Mr Saal which was handed up, by leave of the Tribunal, on 10 August 2018.
    6. (f)
      In her solicitors needing to prepare written submissions on costs in conformity with the order of the Tribunal made on 17 October 2018.
  16. [16]
    The Applicant’s submission in response objects to any costs being awarded to the Respondent on the basis of an assertion that the Respondent was legally represented “without seeking leave through the court”.  That submission is wholly misconceived.  It is a matter of record that the Respondent did quite properly obtain leave for legal representation from the Tribunal, prior to 1 February 2018.
  17. [17]
    I accept the Respondent’s cost submissions in their entirety.

Jurisdiction of the Tribunal to award costs

  1. [18]
    Section 102 of the Queensland Civil and Administrative Tribunal Act 2009 (‘the QCAT Act’) provides:
    1. (1)
      The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.
    2. (2)
    3. (3)
      In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following –
  1. (a)
    Whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to a proceeding, including as mentioned in section 48(1)(a) to (g);

  1. (f)
    anything else the tribunal considers relevant.
  1. [19]
    Of the various matters specified in section 48 of the QCAT Act, the following become relevant:
    1. (1)
      This section applies if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by –
      1. Not complying with a tribunal order or direction without reasonable excuse; or
      2. Asking for an adjournment; or
      3. Causing an adjournment; or
      4. Attempting to deceive another party or the tribunal; or
  2. [20]
    Section 106 of the QCAT Act provides that costs may be awarded by the Tribunal ‘at any stage’, if the tribunal may award costs under this Act or under an ‘enabling act’.  Clearly, there is a power under s.102 of the QCAT Act to award costs. In addition, the Queensland Building and Construction Commission Act 1991 (‘the QBCC Act’) is an ‘enabling act’, as that term is used in section 106. 
  3. [21]
    Section 77(3) of the QBCC Act provides:
  1. (3)
    Without limiting the tribunal’s powers to resolve the dispute, the tribunal may exercise 1 or more of the following powers –

 

 (h) award costs.

  1. [22]
    The Applicant has plainly misled both the Tribunal and the Respondent in relation to his capacity to enter into negotiations regarding the consent orders, and has done so in circumstances wherein he must have known that he had no lawful capacity to comply with the terms of those orders.  His attempts to substitute Foster Building Group Pty Ltd as the contracting party in lieu of himself as part of the new contract required by order 25 of the consent order affords sufficient evidence of his awareness in that regard.  In addition, the Applicant has ‘asked for’ an adjournment; has ‘caused’ an adjournment; and has failed to appear before the Tribunal on 7 September 2018 in accordance with the Tribunal’s direction without sufficient reasonable excuse.  All of these are matters within s.48(1) of the QCAT Act. 
  2. [23]
    Assessed collectively, these matters now warrant the making of a costs order against the Applicant on an indemnity basis.
Close

Editorial Notes

  • Published Case Name:

    Kristen Trevor Foster v Jennifer Nicholas

  • Shortened Case Name:

    Foster v Nicholas

  • MNC:

    [2019] QCAT 184

  • Court:

    QCAT

  • Judge(s):

    Member McLean Williams

  • Date:

    24 Jun 2019

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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