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- Unreported Judgment
Augustine v S J Builders Pty Ltd QCAT 39
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Augustine & Anor v S J Builders Pty Ltd & Anor  QCAT 39
IRIN SUSAN AUGUSTINE
S J BUILDERS PTY LTD
26 February 2019
On the papers
S J Builders Pty Ltd and Santi Philip must pay to Eby Augustine and Irin Susan Augustine costs in the amount of $13,284.48 within fourteen (14) days.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where claim made by homeowners against builder for defects about matters outside statutory scheme – where defects and incomplete work – where applicants not wholly successful – where offers to settle made under award given – where no leave for legal representation – where personal expenses disallowed – where witness expenses allowed – where some allowance for legal costs after offers made allowed
Queensland Building and Construction Commission Act 1991 (Qld), s 77
Queensland Civil and Administrative Tribunal
Act 2009 (Qld), s 100, s 102, s 105
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 86
Ascot v Nursing & Midwifery Board of Australia  QCAT 364
Baltic Shipping Company v Dillon (1993) 176 CLR 344
Cachia v Hanes (1994) 179 CLR 403
Environmental Systems Pty Ltd v Peerless Holdings (2008) 19 VR 358
GEC Alsthom Australia Ltd v City of Sunshine Unreported, FCA, 20 February 1996
Hadley v Baxendale  EWHC J70
Harrison and Anor v Meehan  QCATA 197
Lyons v Dreamstarter Pty Ltd  QCATA 142
Rintoul v State of Queensland & Ors  QCA 20
Ryan v Worthington Simmons Builders  QCATA 116
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).
REASONS FOR DECISION
- Eby and Irin Augustine entered into a contract with S J Builders Pty Ltd to build a new home for them in July 2014.
- There were defects from this build, some of which were corrected by a claim by Mr and Mrs Augustine on the statutory insurance fund. Some defects claimed fell outside the ambit of that fund and Mr and Mrs Augustine commenced an application in this Tribunal to recover the costs of repairs of these extra defects from the respondents. There were counterclaims from the builder in respect of monies alleged to be owing by Mr and Mrs Augustine.
- This matter came before the Tribunal for hearing on 30 May 2018. It was the decision of the Tribunal on 1 August 2018 that the net amount therefore to be paid to Mr and Mrs Augustine was $57,913.57.
- The final amount was calculated as follows:
Owing to the homeowners:
Defects and incomplete work
Variations from the contract amount owing to the owners
Other variations in dispute to be paid to the owners
Total costs to owners
Owing to the builder:
Defects and incomplete work
Variations from the contract Amount owing to builder
Other variations in dispute to be paid to the builder
Total costs to builder
- It can be seen from these tables that neither party wholly succeeded on all of their claims.
- Directions were made for the filing of submissions on Mr and Mrs Augustine’s claim for costs arising from this application and submissions have been received from both parties.
- Neither party was given leave to be legally represented in these proceedings although both sides did have the advantage of private legal advice in the preparation of this matter. Both side incurred fees for this legal advice.
- As all parties to this application are self-represented, in the previous decision and reasons, the Tribunal made the following reproduced comments concerning costs to assist the parties.
- The starting point for a decision on costs is s 77(3)(h) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
- The section modifies the general position under the QCAT Act to give the Tribunal a broad general power to award costs in cases caught by these enabling provisions. This enabling Act allows that while the power must be exercised judicially, it is ‘in markedly different terms from s 100 of the QCAT Act’ which starts with the parties bearing their own costs.
- The Tribunal has discussed the principles applicable in a costs application in a building dispute in these matters:
- (a)The Tribunal’s discretion to award costs in a building dispute is a broader and more general discretion than the one conferred by the QCAT Act because there is an express power to award costs conferred by the QBCC Act, the relevant enabling Act. Unlike in the QCAT Act, there is no strong contra-indication in s 77 of the QBCC Act against a costs order.
- (b)It remains necessary to consider whether an award of costs is justified in the circumstances.
- As His Honour, Justice Wilson, the then President of QCAT, determined in the appeal decision of Lyons v Dreamstarter Pty Ltd about s 77 of the QBCC Act:
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. Otherwise the factors affecting the discretion will vary in each case.
- The Tribunal, in exercising its general discretion to award costs, may consider the factors referred to in s 102(3) of the QCAT Act. The then Deputy President of QCAT, Judge Kingham in Ascot v Nursing & Midwifery Board of Australia stated:
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.
- Section 102 of the QCAT Act provides that the Tribunal may make an order as to costs in the interests of justice, having regard to certain factors. These considerations can be characterised as either ‘entitling’ or ‘disentitling’ factors.
- That section relevantly provides:
(102) Costs against party in interests of justice
(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.
(3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following relevant sections–
- whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g):
- the nature and complexity of the dispute the subject of the proceeding
- the relative strengths of the claims made by each of the parties to the proceeding
- the financial circumstances of the parties to the proceeding;
- anything else the tribunal considers relevant.
- I am not satisfied this matter was overly complex. The number of defects was limited and there was appropriate expert evidence provided to the Tribunal on each alleged defect. In the main, Mr and Mrs Augustine relied on this independent expert evidence and such evidence assisted this Tribunal in making its decision.
- I am not supplied with sufficient financial information from the parties to assess using this criterion.
- Mr and Mrs Augustine claim they were unnecessarily disadvantaged by Mr Philip’s non-attendance at the hearing. Mr Philip claims disadvantage from the lack of an adjournment.
- As I stated in the original reason in this matter
Although Mr Philip did not appear at the hearing, substantial material had been filed by him in response to the application and evidence of Mr and Mrs Augustine and to the building expert report. The building expert appeared at the hearing to assist the tribunal in its deliberations.
The tribunal was satisfied that adequate evidence was before the tribunal to be informed of the view of Mr Philip on the items claimed by Mr and Mrs Augustine and that this evidence could be taken into account despite Mr Philip not being present.
- I am not satisfied that either party was disadvantaged in the conduct of these proceedings.
- Had this been the end of the matter, I would have ordered that each party bear their own costs. However, in the submissions to the Tribunal in this costs application, Mr and Mrs Augustine refer to 2 offers made to Mr Philip by letters dated 8 December 2017 and 20 May 2018.
- The first offer made to Mr Philip on 8 December 2017 was to settle for a payment to Mr and Mrs Augustine of $55,000. The second offer on 20 May 2018 was to settle was for a payment to Mr and Mrs Augustine of $50,000.
- Both of these offers, if accepted, were just below the final award to Mr Philip in this matter and therefore both enliven the provisions of s 105 of the QCAT Act and s 86 of the QCAT Rules. This section and rule allows this Tribunal to take account of this offer in the awarding of costs where the other party proceeds to a hearing and receive an order here higher than the offered amount.
- Both offers made were close to the final payment determination of this Tribunal. The first was $2,000 under and the later $7,000 under the final award to Mr and Mrs Augustine. In saying that, I accept that the extra expenses and emotional burden were placed on Mr and Mrs Augustine by Mr Philips not accepting the offer to settle the matter at either point.
- Both were reasonable and realistic offers that should have been seriously considered by Mr Philip. They now place him in jeopardy of a costs order against him.
- Mr and Mrs Augustine claim the following amounts:
- (a)Application fee $ 315.70
- (b)Expert report costing and witnessing $ 7,600.00
- (c)Legal costs $14,801.35
- (d)Personal expenses $10,300.00
- (e)Witness costs $ 435.00
- (f)Legal Costs of preparation of theses submissions $ 1,845.80
- Total claim $35,316.60
- Mr and Mrs Augustine provided invoices for the above amounts.
- It is established law that a litigant in person may recover reasonably incurred disbursements and witness expenses, including costs and disbursements for legal work done by others, but may not recover travelling expenses or loss of earnings.
- The personal expenses claimed by Mr and Mrs Augustine – preparing the application, attending property inspections, attending the hearing reading and preparation – are not claimable under these decisions and will be disallowed.
- I will however allow the recovery of witness expenses for both witnesses attending and hearing and their reports, and application filing fees. The filing fee was conceded by Mr Philip as appropriate. These amount to $8,350.70.
- Mr and Mrs Augustine claim a further $14,801.35 for legal costs.
- From 8 December 2017 (the date of the first offer) Mr and Mrs Augustine incurred $7,797.53 in legal costs up to the hearing. No specific costs were incurred after the second offer – much closer to the hearing of the matter.
- On balance, I am satisfied it is in the interests of justice to award Mr and Mrs Augustine a contribution by Mr Philips to their legal costs incurred after the date of the offers but not wholly. This is because although reasonable offers, both amounts were not so compelling because of the closeness to the eventual decision.
- I assess Mr Philip’s contribution to be appropriately be a third of the legal costs incurred. This amount is $4,933.78.
- Therefore the total costs award to Mr and Mrs Augustine is $13,284.48 – such amount to be paid by S J Builders Pty Ltd and Mr Philips to Mr and Mrs Augustine within 14 days of this order.
- Published Case Name:
Augustine & Anor v S J Builders Pty Ltd & Anor
- Shortened Case Name:
Augustine v S J Builders Pty Ltd
 QCAT 39
26 Feb 2019