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Jenner v Bleakley QCATA 6
Jenner v Bleakley  QCATA 6
Anthony Wayne Jenner
Joseph Eric Bleakley
On the papers
Senior Member O'Callaghan
7 January 2016
COSTS – where offer made – where result not more favourable than offer – where costs awarded under rule 86
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  QCATA 142
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
- Mr Jenner carried out concreting works at Mr Bleakley’s property. A lengthy dispute about rectification and associated costs has been ongoing in the Tribunal since July 2012.
- The Tribunal at first instance awarded Mr Bleakley some $44,000.00, being the costs of rectification of works performed by Mr Jenner. Mr Jenner sought leave of the Appeal Tribunal to appeal that decision.
- I allowed the appeal on one of the seven grounds, namely that the learned Member had erred in including certain works in the rectification costs which I found were not in the original scope of works. The original decision was set aside and I conducted a rehearing on appeal.
- I gave both parties leave to provide evidence as to the cost of the works not in the original scope so that the amount of damages awarded could be reduced by that amount. After a further hearing, I awarded Mr Bleakley damages in the sum of $40,387.30.
- Mr Bleakley has applied for his costs incurred in the appeal proceedings in the total sum of $6,094.00. Mr Jenner opposes any award for costs.
Is Mr Bleakley entitled to a costs order?
- The usual position as to costs in QCAT proceedings is that each party bears their own costs of the proceeding. This position, however, is subject to the relevant enabling Act. The enabling Act in this case is the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). It has been held by the Tribunal in previous decisions that s 77(3)(h) of the QBCC Act provides that the Tribunal in building disputes has power ‘to award costs’ and allows the Tribunal a broader and more general discretion toward costs in building disputes.
- Mr Bleakley says he should be awarded the costs he incurred in engaging lawyers to prepare submissions opposing Mr Jenner’s application to extend time to lodge the appeal ($1,925.00) and legal costs incurred in the hearing of the appeal ($4,169.00).
- Both parties were given leave to be legally represented in the appeal proceedings.
- Mr Jenner was successful in his application for leave to appeal. Leave was granted and the appeal allowed, but only on one of the grounds, namely the error in the Member’s finding about the scope of works. Other grounds raised, e.g. denial of natural justice, were not successful. The ultimate outcome of the proceedings was that Mr Bleakley’s award of damages was reduced by a minimal amount from $44,000.00 to $40,387.30.
- In those circumstances I would be inclined not to make any order for costs, however, one factor that can be considered by the Tribunal in awarding costs is whether either party made an offer to settle. Rule 86 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) provides that if a party to a proceeding makes another party to the proceeding a written offer to settle the dispute and the other party does not accept the offer within the time the offer is open, and in the opinion of the Tribunal the decision of the Tribunal is not more favourable to the other party than the offer, then the Tribunal may award the party who made the offer all reasonable costs incurred by that party in conducting the proceeding after the offer was made.
- In this matter Mr Jenner after losing the application in the first instance, had offered to pay Mr Bleakley $15,000.00. This was not accepted by Mr Bleakley. Two days prior to the appeal, Mr Bleakley through his solicitors, offered to settle the matter on the basis that Mr Jenner pay him $30,000.00. This offer was rejected by Mr Jenner and a counter-offer to pay $10,000.00 was made. These offers were made without prejudice subject to the issue of costs. Mr Bleakley ultimately received $40,000.00. This decision of the Tribunal, therefore, was not more favourable to Mr Jenner than Mr Bleakley’s offer to accept $30,000.00.
- I am of the view that in circumstances where even though Mr Jenner was successful on one ground of the appeal, but the end result was that the original amount of the award was only reduced by $4,000.00, and Mr Jenner had rejected an offer more favourable, that Mr Bleakley should be awarded his costs incurred after the time for acceptance of the offer expired, namely 6:00pm on 3 June 2015. Mr Bleakley has provided a copy of his solicitor’s itemised account which sets out the costs incurred after that date as follows:
Correspondence serving client’s statement
Phone call from Jenner’s lawyer making offer to settler, email to client
Review and finalise the file material, prepare for appeal hearing
Attend QCAT appeal hearing
$1,306.00 + 10% GST
- I consider that it is an appropriate order in the circumstances that Mr Jenner pay Mr Bleakley’s costs in the total sum of $1,436.60 within 30 days.
- Published Case Name:
Anthony Wayne Jenner v Joseph Eric Bleakley
- Shortened Case Name:
Jenner v Bleakley
 QCATA 6
Senior Member O'Callaghan
07 Jan 2016