Lee Manson t/as Manson Homes v Brett
[2018] QCATA 109
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Lee Manson t/as Manson Homes v Brett[2018] QCATA 109
- Add to List
Lee Manson t/as Manson Homes v Brett[2018] QCATA 109
Lee Manson t/as Manson Homes v Brett[2018] QCATA 109
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: | Lee Manson t/as Manson Homes v Brett & Anor [2018] QCATA 109 |
PARTIES: | LEE MANSON T/AS MANSON HOMES (applicant/appellant) |
v | |
STEWART BRETT (first respondent) SARAH PURNELL (second respondent) | |
APPLICATION NO/S: | APL309-16 |
ORIGINATING APPLICATION NO/S: | BDL117-14 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 6 August 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Allen, Presiding |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where appeal against preliminary decision of tribunal in regard to a building dispute – where leave to amend the appeal application and leave to appeal granted – where appeal dismissed – whether the respondent should be awarded costs in respect of the application for leave to appeal and appeal |
Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(h) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 110, s 106, s 107 Mt Cotton Constructions Pty Ltd v Greer & Anor (No 2) [2016] QCAT 387 Mt Cotton Constructions Pty Ltd v Greer (No. 2) [2017] QCAT 98 Wharton v Duffy Constructions (Qld) Pty Ltd [2016] QCATA 12 | |
REPRESENTATION: | |
Applicant: | McInnes Wilson Lawyers |
First respondent: | VH Poteri |
Second respondent: | VH Poteri |
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
Member Allen
Introduction
- [1]The appeal tribunal determined an application for leave to appeal and appeal in respect of a decision relating to a preliminary issue in the building dispute between the parties on 14 November 2017. While leave to amend the appeal application and leave to appeal were granted to Mr Manson ultimately the appeal was dismissed and Mr Brett and Ms Purnell were invited to make submissions in regard to costs with Mr Manson having the opportunity to make submissions in reply.
- [2]The decision under appeal was one declaring that the contract between Mr Manson and Mr Brett and Ms Purnell dated 29 November 2013 was validly terminated by Mr Brett and Ms Purnell on 28 April 2013. The original application for leave to appeal raised grounds including the invalidity of the notice to remedy breach, the consideration of material not in evidence and that the members reasoning for concluding that there were breaches of relevant laws or lawful requirements was improper in particular in regard to paragraphs [161], [162], 168], [169] and [170] of the reasons for the decision. Mr Manson sought to substitute a declaration that the contract was not validly terminated by Mr Brett and Ms Purnell and sought his costs of and incidental to the appeal and the hearing at first instance.
- [3]Mr Manson made application for leave to amend the application for leave to appeal and appeal which would have the effect of removing the first two grounds of appeal and expanding the ground in regard to improper reasoning. The final order requested was that the member’s findings at paragraphs [225](a), [225](b) and [226](a) of the reasons for decision be vacated. These paragraphs related to whether Mr Manson failed to obtain required approvals and consents in relation to the installation of a metal roof; and consequently that this was a substantial breach of the contract and Mr Brett and Ms Purnell were entitled to terminate the contract based on these breaches.
- [4]Mr Manson’s submissions in regard to amending the application included that the proposed amendments would narrow the issues and shorten the application for leave to appeal and the appeal proper, should leave to appeal be granted. It was noted that the findings of the learned member would be of particular importance to the final disposition of the proceeding. It was submitted that if the appeal was successful then Mr Manson would be relieved of the obligation to pay damages relating to the costs of removing the metal roof and installing a tiled roof and be able to enforce his right to recover that portion of the monies due under the contract relating to the removal of the pre-existing tiled roof and the installation of the metal roof. This shows that while ultimately what was being sought was not that the decision of the member be set aside but in seeking to set aside some of the learned member’s findings Mr Manson was seeking to derive a benefit when the building dispute was finally decided.
- [5]The appeal tribunal considered whether there was a reasonably arguable case of error of law in the learned member’s reasons in determining the question of whether leave to appeal should be granted. The appeal tribunal found that the learned member was in error in finding that the onus of proof was on Mr Manson to show that he had complied with requirements of obtaining development and building approvals. The appeal tribunal considered that it could not be said with certainty that this error alone infected the member’s reasoning.
- [6]The appeal tribunal noted that the alleged errors in paragraphs [161], [162]. [169] and [170] all related to the learned member’s approach to the issue of whether a development approval or permit was required for the installation of the metal roof. The appeal tribunal considered that each of the paragraphs identified the learned member’s reliance upon the subjective belief of Mr Manson or evidence of the town planning experts in formulating an opinion regarding the interpretation of the relevant statutory obligations for obtaining development approvals or permits.
- [7]The appeal tribunal considered the relevant authorities and identified that the opinion of a town planner on a question of construction was irrelevant and that the construction of a draft strategic plan was a matter for the tribunal. Regard was had to the submissions on behalf of Mr Brett and Ms Purnell that the tribunal was not bound by the rules of evidence in accordance with s 28 of the QCAT Act.
- [8]The appeal tribunal identified that it was a general principle that every attempt must be made to administer “substantial justice” and in that context the rules of evidence could not be set to one side and carry out methods of enquiry which advantage one party and disadvantage another and that the appeal tribunal was bound by the Court of Appeal decisions in regard to the evidence of the town planners. On that basis there was an error of law in the learned member adopting the town planner’s opinion on a point of construction of the relevant statute, planning scheme and codes. The appeal tribunal considered in line with the authorities that it needed to consider the consequences of the error in terms of whether the error materially affected the learned member’s reasons for decision.
- [9]Ultimately the appeal tribunal found that the learned member’s failure to consider the question of whether a development approval was required upon a proper interpretation of the relevant legislation was not an error which would significantly have affected the learned Member’s conclusions in paragraphs [225](a), [225](b) and [226](a) of the reasons for the decision. This was on the basis that no building approval had been obtained for the roof that was installed (which was a metal roof) and as a result Mr Manson was in breach of the relevant provisions of the building contract and therefore there was no necessity for the learned member to find also that there was failure by Mr Manson to obtain a development approval for the metal roof as there was a relevant breach to support the findings in paragraph [225](a) and [225](b).
- [10]The appeal tribunal, being satisfied that there was an error of law, granted leave to appeal. The appeal was dismissed though because ultimately the error of law did not affect the learned member’s decision. Accordingly, the appeal was refused.
- [11]Mr Brett and Ms Purnell were directed to make submissions if they wished to seek their costs in respect of the appeal with Mr Manson having the opportunity to reply.
Submissions on behalf of Mr Brett and Ms Purnell
- [12]Mr Brett and Ms Purnell are seeking the following costs:-
- (a)Saal and Associates $1,065.35
- (b)John walker lawyers $1,640.00
- (c)Neil Thompson, Counsel $5,500.00
- (d)VH Poteri $2,090.00
- (a)
(includes N Thompson’s
fee for submissions on costs $1,100)
Total $10,295.35
- [13]These costs are supported by tax invoices (some of which are itemised) including Counsel’s memorandum of fees. The submissions on behalf of Mr Brett and Ms Purnell note that, while generally under s 100 of the QCAT Act the parties bear their own costs, as this is a building dispute the provisions of s 77(3)(h) of the Queensland Building and Construction Commission Act 1991 (QBCC Act) apply and the tribunal has unfettered power to award costs. Mr Manson’s submissions refer to the decisions of Senior Member Brown in Mt Cotton Constructions Pty Ltd v Greer (No 2)[1] and Member Howe in Mt Cotton Constructions Pty Ltd v Greer (No 2)[2]. It is submitted that whilst the general rule is that costs follow the event and Mr Manson was successful in obtaining leave to amend, such leave was effectively obtained as a concession and costs against Mr Manson should be seen as an inevitable price of obtaining such leave. It is further submitted that such an application should not have been necessary if the notice had been properly drawn in the first place. It is noted that s 107(1) of the QCAT Act provides that if the Tribunal makes a cost order under the QCAT Act or an enabling Act, the tribunal must fix the costs if possible. It is then submitted the schedule of costs and copies of invoices attached to the submission should be adopted as the costs assessment rather than engaging the respondents in further expense and delay. Adopting the schedule of costs provided is submitted to be convenient, economical and expeditious for all parties. In the circumstances, it is submitted the claims for costs are modest and appropriate.
Submissions on behalf of Mr Manson
- [14]Mr Manson’s primary contention is that there should be no order as to costs. In the alternative, it is submitted that if the appeal tribunal decides that Mr Brett and Ms Purnell should be awarded costs the amount of costs claimed by them is excessive. While Mr Manson accepts that the tribunal has power to award costs in building disputes, it is not an unfettered power and must be exercised in accordance with established principles. In exercising its broad discretion to award costs, the tribunal is entitled to take into account a number of matters including:
- (a)that the normal position in tribunal matters is that each party bear their own costs;
- (b)there was no finding or adverse comment by the tribunal in its reasons which would support an argument that it was otherwise in the interests of justice to award costs against Mr Manson (as per s 102 of the QCAT Act);
- (c)the decisions in Mr Cotton Constructions Pty Ltd v Greer (No 2) (referred to above) dealt with costs in a preliminary matter and costs on the indemnity basis (respectively) and not the costs of an appeal on a discreet point where the substantive matter is ongoing as in this case;
- (d)Mr Manson was successful in obtaining leave to amend the grounds of appeal (which reduced the scope of the appeal) and leave to appeal;
- (e)there was substance in the sole ground of appeal and the appeal turned on a finding that the accepted error by the member would not have affected his findings; and
- (f)in the circumstances it is open to the tribunal to make no order as to costs. It is also open to the Tribunal to reserve the costs of the appeal until the matter is finally determined or make the costs “costs in the cause”.
- (a)
- [15]Specific submissions are made on behalf of Mr Manson in regard to the costs claimed by Mr Brett and Ms Purnell. In regard to the account from Saal & Associates it is submitted that an assessment of the account on the standard basis and using the district court scale was used the account would be reduced by 25%. Further, it is contended that there is no proper detail provided in terms of the nature of or how much time was spent on each item of work in relation to the accounts from John Walker Lawyers and no hourly rate is provided in regard to the work. It is therefore not possible to make proper submissions on the appropriateness of the accounts other than to say the accounts would be reduced substantially on assessment. In regard to the amount claimed for the services of VH Poteri, there is no account from the law firm and therefore in the circumstances no amount should be allowed for the balance of the amount claimed after deducting Counsel’s fees of $1,100.00. It is noted that Mr Brett and MS Purnell used the services of three law firms and it is inevitable that there would have been doubling up of some work, and so costs as a result.
- [16]In regard to Counsel’s fees, it is submitted that the first account dated 1 March 2017 related to an appearance at a directions hearing where Mr Brett and Ms Purnell attempted to have the appeal struck out. The hearing was brief, there were no written submissions and the application was refused. It is submitted that, in the circumstances, Mr Brett and Ms Purnell are not entitled to any costs of the unsuccessful “strike out” application. Counsel’s account dated 22 November 2017 provides no detail of the actual work carried out by Counsel in relation to the appeal and no amount should be allowed for this account. Further, it is submitted that the amount claimed in relation to work by Counsel on 8 December 2017 in drafting the submissions on costs for Mr Brett and Ms Purnell is not contained in a proper account from Counsel. It is submitted that, in any event, the costs are excessive. It is submitted that the Respondents’ submissions are brief and are not signed by or in the name of Counsel and that the amount claimed would not be allowed in full on assessment.
Discussion
- [17]I note that a decision of Member Howe has been relied upon by Mr Brett and Ms Purnell, That decision dealt specifically with costs where an offer to settle had been made and otherwise echoed the general position about costs in building matters. The decision of Senior Member Brown in Mt Cotton Constructions Pty Ltd v Greer (No 2) [2016] QCAT 387 dealt with an award of costs of the respondent in an unsuccessful application to rely upon further expert evidence. The decision notes that other than provided for under s 100 of the QCAT Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding[3]. The QBCC Act is the relevant enabling Act in respect of this proceeding. Section 77(3)(h) of the QBCC Act gives the tribunal the power to award costs and to make an order as to costs that is justified in the circumstances. It is a broad general discretion which must be exercised judicially, not upon irrelevant or extraneous considerations but upon facts connected with or leading up to the litigation. (citing Lyons v Dreamstarter Pty Ltd [2011] QCATA 142)[4].
- [18]Senior Member Brown stated the general principles in awarding costs as follows
“A successful litigant is, generally speaking entitled to an order of costs, and to deprive a successful party of their costs is an exceptional measure. A successful party is entitled to recover their costs on a standard basis absent some special or unusual feature to justify a court departing from the usual practice”[5]
- [19]Mr Manson’s primary submission is that no costs order be made. Clearly Mr Brett and Ms Purnell were successful in terms that the appeal was dismissed and as the successful litigant they are entitled to their costs.
- [20]Mr Manson has submitted that if costs are to be allowed they should be reserved or costs in the cause. Senior Member Brown noted that “if the tribunal may award costs they may be awarded at any stage of a proceeding or after the proceeding has ended”, QCAT Act s 106. In this case, while the proceeding subject to the appeal was a proceeding relating to a preliminary point, the appeal decision is final in regard to the application for leave to appeal and appeal and so costs of the appeal should be awarded at this point in time. Mr Manson also submits that the decision of Senior Brown was in regard to a building dispute and this is an appeal raising the question of whether the modifying nature of s 77(3)(h) of the QBCC Act applies where the application is an appeal from a building dispute. I refer to the decision of former Senior Member Stilgoe in Wharton v Duffy Constructions (Qld) Pty Ltd confirms that the appeal tribunal may award costs in accordance with the provisions of s 77(3)(h) of the QBCC Act.
- [21]It is a question then of how Mr Brett and Ms Purnell’s costs are to be assessed. The alternative to the assessment of costs on the standard basis is indemnity costs. It is noted that while Mr Brett and Ms Purnell are seeking their costs as claimed be paid without assessment they have not submitted that they have an entitlement to indemnity costs. They contend only that it would be economical and expeditious to allow their costs on this basis. The effect of paying their costs as claimed would be to award indemnity costs and there has been no submissions made that the circumstances here are that any special or unusual features exist which would justify the appeal tribunal departing from the usual practice. While the appeal was dismissed, the appeal tribunal did grant leave to appeal on the basis that there was a reasonable case of error in the primary decision. The appropriate order is then that Mr Manson pay Mr Brett and Ms Purnell’s costs on a standard basis.
- [22]As noted by Senior Member Brown if the tribunal makes a cost order under the QCAT Act or an enabling Act, the tribunal must fix the costs if possible (in accordance with s 107 of the QCAT Act) and the discretion to fix costs is an extremely wide one which is to be exercised robustly (citing Cruceru v Medical Board of Australia [2016] QCAT 111)[6] . Senior Member Brown states that any assessment of costs on the standard basis should be on the District Court Scale of fees and that when assessing costs on a standard basis, those costs are allowed on the basis that they are “necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being assessed” (UCPR r702)[7]. Having regard to the UCPR and the record of itemised fees provided by the successful party in that case and the hourly rate allowed under the UCPR under the District Court scale Senior Member Brown was able to calculate an amount to be awarded.
- [23]Mr Manson challenges the adequacy of the material provided to justify the costs claimed by Mr Brett and Ms Purnell. It is accepted that material is not adequate to enable the appeal tribunal to fix the entitlement to costs of Mr Brett and Ms Purnell. It is important not to carry out an exercise which could potentially prejudice the Respondents by disallowing costs which might otherwise be allowable. If the appeal tribunal is unable to fix the costs, it is appropriate for the tribunal to make an order requiring the costs be assessed under the rules, in accordance with s 107(2) of the QCAT Act.
- [24]Rule 87 of the QCAT Rules provides that if the tribunal makes a costs order that requires the costs to be assessed under the rules the costs must be assessed by an assessor appointed by the tribunal and by reference to the scale of costs directed by the Tribunal. Having regard to efficiency and cost saving we will give the parties an opportunity to agree on the costs to be paid before an assessment is required.
- [25]The appeal tribunal makes the following orders:
- (a)Lee Manson t/as Manson Homes shall pay Stewart Brett and Sarah Purnell’s reasonable costs of and incidental to the application for leave to appeal and appeal on the District Court Scale as agreed or assessed.
- (b)Stewart Brett and Sarah Purnell will deliver to Lee Manson t/as Manson Homes an itemised claim for costs within 14 days of the date of this order.
- (c)If within 14 days of delivery of the itemised claim for costs, the parties have not agreed to an amount for costs, the costs shall be assessed by Greg Ryan of Ryan Cost Consultant Pty Ltd.
- (a)
Member Burke
- [26]I have had the benefit of reading the reasons of Member Allen in relation to costs in draft. I agree with his reasons and conclusions and the orders proposed.