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Harrison v Meehan[2018] QCATA 191

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Harrison & Anor v Meehan [2018] QCATA 191

PARTIES:

In APL273-15

KAREN HARRISON

(first applicant/appellant)

SCOTT HARRISON

(second applicant/appellant)

 

v

 

MICHAEL MEEHAN

(respondent)

In APL375-15

MICHAEL MEEHAN

(respondent/appellant)

v

KAREN HARRISON

(first applicant/respondent)

SCOTT HARRISON

(second applicant/respondent)

APPLICATION NOS:

APL273-15

APL375-15

ORIGINATING APPLICATION NO:

BDL120-14

MATTER TYPE:

Appeals

DELIVERED ON:

19 December 2018

HEARING DATE:

23 July 2018

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

Senior Member Guthrie

ORDERS:

  1. Karen & Scott Harrison must file in the Tribunal two (2) copies and give to Michael Meehan one (1) copy of further submissions limited to the application to dismiss filed in APL273-15 which submissions must not exceed two (2) pages in length, within twenty one (21) days of the date of this decision;
  2. Michael Meehan must file in the Tribunal two (2) copies and give to Karen & Scott Harrison one (1) copy of submissions in reply which submissions must not exceed two (2) pages in length, within twenty eight (28) days of the date of this decision;
  3. The Appeal Tribunal will make final orders in relation to costs in APL273-15 and APL375-15 after twenty eight (28) days from the date of this decision.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – where party legally represented in appeal – consideration of whether ‘interests of justice’ require making of order for costs – consideration of s 102(3) of Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(h)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102(1), s 135(4), s 138(5), s 142(3)(a)(iii)

Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1423

Hennessey Glass and Aluminium Pty Ltd v Watpac Australia Pty Ltd [2007] QDC 57

Lyons v Dreamstarter Pty Ltd [2011] QCATA 142

Olindaridge Pty Ltd & Wagner v Tracey [2015] QCATA 175

Salam & Anor v Henley Properties (QLD) Pty Ltd [2016] QCATA 98

Tamawood Ltd & Anor v Paans [2005] QCA 111

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

No appearance

REASONS FOR DECISION

  1. [2]
    Mr Meehan undertook building work for Mr and Mrs Harrison. The parties fell into dispute. The Harrisons commenced a proceeding for a building dispute. In BDL120-14 the tribunal ordered that Mr Meehan pay to the Harrisons $54,740.68. There was no order as to costs.
  2. [3]
    Both parties appealed the decision in BDL120-14, the Harrisons in proceeding APL273-15 and Mr Meehan in proceeding APL375-15. In APL273-15 the Appeal Tribunal allowed the appeal, ordered that the decision of the tribunal in BDL120-14 be set aside and ordered Mr Meehan pay to the Harrisons $26,015.99 plus interest.[1] The appeal in APL375-15 was also allowed.[2]
  3. [4]
    The Harrisons appealed the decisions in APL273-15 and APL375-15 to the Court of Appeal where their application for leave to appeal was refused.[3]
  4. [5]
    It is appropriate to examine a little more closely what the appeals in APL273-15 and APL375-15 were about.

The decisions in APL273-15 and APL375-15

  1. [6]
    In APL273-15 the tribunal at first instance was found to have erred in concluding that the Harrisons unduly delayed in undertaking completion works. Leave to appeal was granted and the appeal conducted by way of a rehearing. 
  2. [7]
    It was not contested in the appeals that the tribunal at first instance had erred in not taking into consideration in assessing damages an amount payable under the contract by the Harrisons to Mr Meehan of $31,749.17. This error was the subject of the appeal by Mr Meehan in APL375-15.
  3. [8]
    In conducting APL273-15 by way of rehearing, the ground of appeal in APL375-15 was also addressed. The Harrisons were successful, albeit to a modest extent, in APL273-15 with the assessed damages being increased by $3,024.47 (‘the primary decision’). In the final result, and addressing the ground of appeal in APL375-15, Mr Meehan was ordered to pay to the Harrisons $26,015.99.

The application for reopening, correction, renewal or amendment – REO006-15

  1. [9]
    Following the decision in BDL120-14, Mr Meehan filed an application to correct the decision (proceeding REO006-15). Mr Meehan relied upon the same ground as identified subsequently in APL375-15. In REO006-15 Mr Meehan sought, in the alternative to a correction of the final decision, that the proceeding in BDL120-14 be reopened.
  2. [10]
    The application in REO006-15 was filed on 8 July 2015. The Harrisons filed the application for leave to appeal or appeal in APL273-15 on 10 July 2015. A difficulty then arose for Mr Meehan. A party cannot make an application to correct a decision that is the subject of an appeal or an application for leave to appeal.[4] A party cannot make an application to reopen a proceeding in relation to a decision the subject of an appeal or an application for leave to appeal.[5]
  3. [11]
    Mr Meehan subsequently applied to withdraw the application in REO006-15 and orders were made accordingly.

Costs – the statutory framework

  1. [12]
    Parties to proceedings in the tribunal must bear their own costs subject to the operation of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) or an enabling Act.[6] The tribunal may require a party to pay another party’s costs if the interests of justice require such an order.[7]
  2. [13]
    The relevant enabling Act is the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). By s 77(3)(h) of the QBCC Act, the tribunal may award costs. The power to award costs under the QBCC Act applies in appeal tribunal proceedings.[8]
  3. [14]
    The discretion to order costs under s 77(3)(h) is a broad general one, which must be exercised judicially, not upon irrelevant or extraneous considerations but upon facts connected with or leading up to the litigation.[9]

What do the parties say?

  1. [15]
    The Harrisons seek their costs in BDL120-14, APL273-15, APL374-15 and REO006-15.
    1. Costs in BDL120-14
  2. [16]
    The Harrisons claim legal costs incurred prior to the commencement of proceeding BDL120-14 and the costs of the proceeding in the amount of $1,906.59. They say that these costs would not have been incurred but for Mr Meehan’s repudiatory conduct. The Harrisons also say that it is a general principle that a successful party is entitled to recover their costs and to order otherwise would be to erode the Harrisons’ success.
  3. [17]
    The Harrisons claim their costs of the proceeding comprising filing fees, expert’s fees and counsel’s fees. They say that they were entirely successful in the proceeding, that Mr Meehan’s counter application was dismissed and that the general rule in building disputes is that a successful party is entitled to recover its costs from the other party.
  4. [18]
    Mr Meehan says that the manner in which the Harrisons briefed their expert, Mr Sims, to include significant items and an enlarged scope of works greatly contributed to additional costs and time spent dismissing those aspects. Mr Meehan says that the first day of the hearing was largely wasted on the enlarged scope of works. He says that a considerable part of the second day of the hearing was also wasted in dealing with items that were not part of the scope of works agreed between the parties.
  5. [19]
    Mr Meehan says that the original decision, that there be no order as to costs, should remain undisturbed.

ii.  Costs in REO006-15

  1. [20]
    The Harrisons seek certain specified costs they say were ‘thrown away’ in REO006-15 and APL273-15 fixed in the amount of $3,300.
  2. [21]
    The reference to the costs thrown away in APL273-15 relates to three interlocutory applications by Mr Meehan: an application to stay the decision in BDL120-14 (the stay application); an application to extend the time for filing an appeal from the decision in BDL120-14 until the determination of the application in REO006-15 (the extension of time application); and an application for miscellaneous matters in which Mr Meehan sought to have the application for leave to appeal or appeal dismissed or for the appeal proceeding to be ‘adjourned’ pending the determination of the application in REO006-15 (the application to dismiss). The stay application and the extension of time application were filed in REO006-15. The application to dismiss was filed in APL374-15.
  3. [22]
    The stay application was refused;[10] the extension of time application was refused;[11] the application to dismiss was refused.[12]
  4. [23]
    Mr Meehan says that he should be entitled to his costs in REO006-15. He says that rather than waiting for the determination of the application in REO006-15 the Harrisons prematurely commenced APL273-15, making the reopening application redundant.

iii.  Costs in APL273-15 and APL374-15

  1. [24]
    The Harrisons say that they have been successful in the appeal and that a successful party is generally entitled to their costs. They say that if they are not awarded costs their success in the proceedings will be significantly eroded by the costs they have incurred in bringing the action.
  2. [25]
    Mr Meehan says that whilst the Harrisons have been partially successful in APL273-15, the majority of their appeal grounds were unsuccessful. He says that the Harrisons’ principal argument, that the tribunal at first instance erred in favouring the quantum evidence of the experts, was rejected on appeal. Mr Meehan says that the majority of the work involved in preparing and arguing the appeal related to these unsuccessful grounds. There should be no order for costs in APL273-15 says Mr Meehan, and if there is, the Harrisons should recover only 20% of their costs.
  3. [26]
    In respect of APL374-15, Mr Meehan says that he has been wholly successful and that he should therefore have his costs of the appeal.

Consideration

  1. [27]
    We will consider the question of costs by reference to each of the proceedings.
    1. Costs in BDL120-14
  2. [28]
    The tribunal below dealt with the question of the costs in the following passages from the reasons:

[68] The owners seek interest and costs.  The only costs claimed are the account of their solicitors covering the solicitor’s involvement to terminate the contract, and the account of the expert they engaged, Mr Sim. 

[69] The owners’ application did not limit the claim against the builder to carpentry and supervision of other trades.  They referred to the scope of work relied on by their expert, Mr Sim.  But Mr Sim was not advised of the builder’s limited retainer by the owners.  He understood it was the entire construction work set out in item 3 to the schedule to the contract.  The owners therefore purported to claim far more than carpentry and supervision.  In result, the builder was put to additional and unnecessary costs in preparing his case and understandably resisted the owners claim.  In the circumstances, I conclude it would be unfair to order the builder to pay costs or interest.   

  1. [29]
    The tribunal below identified the issues for determination as: firstly, what were the terms of the contract between the parties; secondly, which party fell into breach and was the contract validly terminated; thirdly, what damages flowed from the breach.
  2. [30]
    As to what the terms of the contact were, the tribunal found that the scope of the works agreed by the parties was for Mr Meehan to perform all carpentry work required on site, including the supply and fixing of external cladding and internal plasterboard, and for the builder to supervise other trades on site for an agreed fixed remuneration.[13]
  3. [31]
    On the issues of breach and termination the tribunal found that the Harrisons were not in substantial breach when they served the notice of breach on Mr Meehan and that Mr Meehan was not entitled to walk off the site. The tribunal found that the Harrisons were entitled to terminate the contract and that the termination was in accordance with the requirements of the contract.[14]
  4. [32]
    The reasons for the primary decision set out the history of the dispute including the engagement by the Harrisons of the services of a building expert, Mr Sim, to assist with the quantification of their claim for damages. As we observed in the primary decision, Mr Sim prepared a report addressing the quantification of the costs of completing what the Harrisons asserted to be incomplete building work. The Harrisons had engaged another builder to complete the building works. However Mr Sim was not briefed by the Harrisons with details of the actual cost of the completion works nor was he instructed to cost the completion works by reference to the actual amount paid by the Harrisons to the new builder. In the primary decision it was found:

It is clear that, from the outset, the Harrisons intended to, and did, pursue a claim for the completion of incomplete work based upon the actual amounts they had paid for that work to be undertaken. There was however no attempt by the Harrisons to particularise the details of the actual completion works carried out and the amount paid by them to third parties to complete the works by reference to each item of work. Despite reference to defective building work, the only evidence of such defective building work adduced by the Harrisons is limited to a number of photographs and six items said to be the defective work. No attempt was made by the Harrisons to quantify the cost of the rectification work.[15]

  1. [33]
    In the primary decision it was found it was obvious to the parties prior to the hearing below that the respective experts had: (i) approached the quantification of the cost of completing the works on different bases; (ii) not addressed the issue of defective building work; (iii) not considered the actual costs incurred by the Harrisons in having the building works completed. 
  2. [34]
    The parties filed extensive statements of evidence in BDL120-14. Both parties engaged expert witnesses. The Harrisons sought to present their claim for damages on alternative bases: (i) the actual costs incurred in completing the incomplete work; and (ii) the reasonable costs to complete the incomplete work as assessed by their expert, Mr Sim.
  3. [35]
    Mr Meehan denied the allegation that he had breached the contract by suspending the works. His response asserted that the Harrisons had breached the contract by failing to pay amounts due and owing including amounts claimed for variations. Mr Meehan counter claimed against the Harrisons for $65,926.00.
  4. [36]
    The issue of breach was central to the determination of the dispute in BDL120-14. This required a consideration of the terms of the contract and scope of works to be performed by Mr Meehan, whether Mr Meehan had breached the contact and whether the Harrisons were entitled to terminate the contract for Mr Meehan’s breach.
  5. [37]
    An experts’ conclave was held and a joint experts’ report was produced. The experts held differing opinions as to the scope of works however in relation to a significant number of the items of building work considered by them (whether within scope or not), the experts agreed on the cost of completion work. 
  6. [38]
    On the first day of the hearing Mrs Harrison, Mr Harrison and Mr Nitz, a witness for Mr Meehan (who supervised the carpentry works), gave evidence principally about the scope of works. On the second day of the hearing evidence was given by Mr Meehan and by the parties’ experts, the latter giving their evidence concurrently. The learned member indicated to the parties at the start of the hearing that he proposed to have the experts give their evidence concurrently. As was found in the primary decision:

In our view, the learned member’s decision to proceed to hear the expert evidence concurrently based upon the agreed revised scope of works was an appropriate one. It permitted the experts to consider each item of completion work by reference to the revised scope of works and the reasonable cost of such work. The parties were invited to ask questions while the concurrent evidence was being given. It is apparent from the transcript that the Harrisons understood the difference between the formulation of their claim based upon the actual costs of completion work and the formulation based upon the expert evidence.[16]

  1. [39]
    The learned member below accepted the evidence of the experts as the appropriate basis upon which the Harrisons’ damages should be calculated and assessed.[17] The learned member found that Mr Meehan had been put to additional and unnecessary costs in preparing his case and ‘understandably resisted the owners claim’. It was on this basis that the learned member made no order as to costs.
  2. [40]
    An appeal against a costs decision may only be made with the leave of the appeal tribunal.[18] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[19]
  3. [41]
    In our view, the tribunal below adopted an overly narrow view of the factors relevant to the discretion to award costs. The dispute regarding the scope of the building works was but one of a number of issues the tribunal was required to decide. As the learned member observed, the issues he was required to determine included the terms of the contract, whether the contract had been breached and lawfully terminated and the damages flowing from the breach. The evidence of the experts was clearly relevant to two of these issues and was relied upon by the learned member in reaching his final decision. The Harrisons were substantially successful in BDL120-14 in establishing that Mr Meehan was in breach of the contract, that they were entitled to terminate the contract for Mr Meehan’s breach and that they were entitled to damages as a result of the breach. The result of the failure by the tribunal below to take into account all of the relevant considerations was a miscarriage of the exercise of the discretion to award costs. 
  4. [42]
    The jurisdiction to award costs under s 77(3)(h) of the QBCC Act, expressed as it is in general terms, allows the tribunal to make an order as to costs that is justified in the circumstances.[20] Where a party has reasonably incurred costs and has been successful before the tribunal, it could not be said to be in the interests of justice for that success to be eroded.[21]
  5. [43]
    Having been substantially successful in the proceeding and in accordance with the established principles in considering whether to award costs, the Harrisons are entitled to their costs in BDL120-14. There will, in our view, be a substantial injustice to the Harrisons if leave to appeal is not granted, that injustice being depriving the Harrisons of their entitlement to recover the costs of the proceedings below. Accordingly we are satisfied that leave to appeal should be granted in respect of the costs decision in BDL120-14.
  6. [44]
    The Harrisons claim the following costs:
Legal costs incurred prior to the commencement of proceedings$1,906.59
Filing fees$ 285.00
Expert’s fees in attending conclave$ 907.50
Expert’s fees in preparing joint report$ 165.00
Expert’s fees in attending to give evidence$ 907.50
Counsel’s fees in preparing submissions$4,125.00
  1. [45]
    The parties had leave to be legally represented in BDL120-14.[22] We have made a number of observations regarding the involvement of Mr Sim in the proceeding below. Mr Sim was not briefed by the Harrisons with details of the actual cost of the completion works nor instructed to cost the completion works by reference to the actual amount paid to the new builder. Nevertheless, Mr Sim’s involvement in the litigation was necessary and proper. As has been observed while the parties’ experts’ held differing opinions as to the scope of works there were a significant number of items of specific building work in relation to the experts agreed on the cost of completion. At the hearing, and after the scope of works had been clarified, the experts gave their evidence concurrently in relation to the specific items of disputed building work. That evidence was relied upon by the learned member below.
  2. [46]
    The costs claimed by the Harrisons for Mr Sim are based on an hourly rate of $150.00. This figure appears reasonable. Mr Sim claims a total of 12 hours for attending the conclave, drafting the joint experts report, appearing at the hearing and travel time. All but the amount claimed for travel is reasonable and recovery of 10 hours at $150.00 or a total of $1,500.00 is allowed. The filing fees are also allowed.
  3. [47]
    The Harrisons claim Counsel’s fees totalling $4,125.00. The amount claimed comprises two tax invoices. The first invoice, dated 9 February 2015 is for work performed in the period 27 February 2015 to 4 March 2015 and relates to reading material, a conference, considering legislation, considering quantum and drafting submissions. The amount claimed is $2,500.00 which appears to be counsel’s daily fee. The second invoice, dated 16 March 2015, is in respect of reading the builder’s submissions, further research and drafting reply submissions. The amount claimed is $1,250.00 which is half of counsel’s daily fee.
  4. [48]
    As we have observed, the parties had leave to be legally represented in the proceedings below. The matter was one involving some degree of complexity both factually and legally. It is part of the function of an assessment of costs on a standard basis to take into account what is reasonable for an unsuccessful litigant to have to pay by way of counsel’s fees, other than simply on the basis of the market rate for counsel of the seniority which it was appropriate to brief.[23]
  5. [49]
    The amount claimed in respect of counsel’s fees is not, in our view, excessive. It was in our view reasonable for counsel to be briefed by the Harrisons to prepare submissions including submissions in reply. Given the complexity of the factual and legal issues we do not consider counsel’s fees to be excessive and we allow the amount claimed in full.
  6. [50]
    The Harrisons claim the legal costs incurred by them associated with the termination of the contract in the amount of $1,906.59. The amount is not properly a claim for costs. Rather, it is in the nature of damages. We note that it was not a ground of appeal that the tribunal below had failed to take into consideration the legal costs incurred by the Harrisons in terminating the contract with Mr Meehan. Accordingly the amount cannot now be claimed as costs. The claim is disallowed. 

ii.  Costs in REO006-15

  1. [51]
    Do the costs in REO006-15 fall for consideration under the QBCC Act or under the QCAT Act? In Olindaridge Pty Ltd & Wagner v Tracey[24] the QCAT appeal tribunal held:

The Appeals Tribunal had jurisdiction for the appeal only because of its jurisdiction under the QBCC Act to decide a building dispute on the application of a person involved in the building dispute. We accept that a claim or dispute between a building owner and building contractor within the definition of domestic building dispute, must therefore necessarily include an appeal in relation to the claim or dispute. As Olindaridge and Mr Wagner submit, as a matter of construction, claim or dispute is not determined by the cause of action, rather its nature as a building dispute as defined. Therefore, if a claim or dispute is a building dispute, it remains a building dispute whether considered in the Tribunal’s original or appeal jurisdiction.

  1. [52]
    The power under the QCAT Act for the tribunal to reopen a proceeding or to correct or renew a final decision are statutory exceptions to the application of the doctrine of functus officio. Costs in an application to reopen, renew or correct in respect of a decision made in a building dispute should be approached on the same basis as in Olindaridge. Such an application arises directly out of a decision in the tribunal’s original jurisdiction in respect of a building dispute.
  2. [53]
    The Harrisons claim their costs of three interlocutory applications filed by Mr Meehan:
    1. the stay application;
    2. the extension of time application;
    3. the application to dismiss.
  3. [54]
    The determination of costs in REO006-15 is not before the Appeal Tribunal. It appears that neither the Harrisons nor Mr Meehan applied for an order for costs in that proceeding after the reopening application was withdrawn by Mr Meehan. The appropriate course for either or both of the parties to undertake if they wish to seek costs in REO006-15 is to make an application for costs in that proceeding. 
  4. [55]
    We will deal with the application to dismiss filed in APL374-15 later in these reasons.

iii.  Costs in APL273-15 and APL374-15

  1. [56]
    Whilst the Harrisons were successful in APL273-15 that success was modest. The increase in the Harrisons’ assessment of damages was in the order of $3,025.16. The grounds of appeal on which the Harrisons were successful were limited.
  2. [57]
    In the appeal the following additional amounts were allowed:
  • Skip bin hire, toilet hire, scaffold hire and fence hire  $2,051.00
  • Crane hire and roof truss hardware    $1,323.08
  1. [58]
    The costs claimed by the Harrisons in APL273-15 are:
  • Filing fees       $     631.40
  • Counsel’s fees       $11,690.00
  1. [59]
    We note the Harrisons’ submission that if they are not awarded their costs of the appeal, then their success in the entire proceeding will be significantly, if not entirely, eroded by the costs they have had to pay in order to bring the action.
  2. [60]
    In Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [25] Hammerschlag J observed the following, in the context of some exceptions to the general rule that costs follow the event:

a. a costs order in favour of a successful party can be modified to reflect its failure on particular issues even if the successful party did not act unreasonably in raising those issues: Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (Supreme Court of New South Wales, Hodgson CJ in Eq, 3 June 1998, unreported, BC9802305 at 10-11);

b. if a party unreasonably pursues or persists with points which have no merit, such conduct will constitute a consideration relevant to the ordering of costs even in circumstances where that party is generally successful: Oshlack v Richmond River Council [1993] HCA 11; (1998) 193 CLR 72 at 122;

c. conduct in relation to the matter may be discreditable to an extent warranting a party being deprived of costs: Jamal v Secretary Department of Health (1988) 14 NSWLR 252 at 271;

d. where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed: Hughes v Western Australian Cricket Association (Inc) (1986) 8 ATPR 40-748 at 48,136;

e. where the proceedings involve multiple issues departure from the general rule may be warranted particularly where the losing party has succeeded on issues which occupied significant time. Nevertheless the application of the general rule may involve hardship where a party succeeds on some issues but fails on others particularly where the losing party succeeds on some issues. However unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Ritchie’s Uniform Civil Procedure NSW at [42.1.15]; Waters v PC Henderson (Australia) Pty Ltd (New South Wales Court of Appeal, 6 July 1994, unreported, BC9404952 at 5); Short v Crawley (No 40) at [27]-[28];

f. a successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party’s costs of them: Hughes v Western Australian Cricket Association (Inc) at 48,136.

  1. [61]
    There is always, in circumstances such as the present appeals, a balance to be struck between, on the one hand, the costs a successful applicant has incurred in pursuing an appeal albeit to a very modest extent and, on the other, the costs an unsuccessful respondent may be required to pay in being largely successful in opposing the appeal.
  2. [62]
    There is no doubt that the dominant issue for determination in the appeal, and the principal ground relied upon by the Harrisons, was the asserted error on the part of the tribunal below in failing to undertake an assessment of the Harrisons’ loss on the basis of the costs actually incurred by them in respect of the building works. The Harrisons failed to establish this ground of appeal. The grounds of appeal in respect of which they were actually successfully were, as we have observed, limited with a modest impact upon the final decision.
  3. [63]
    Taking all matters into consideration, and taking into consideration the principles referred to in Corbett Court Pty Ltd we are of the view that the Harrisons should be entitled to recover 20% of counsel’s fee in APL273-15 as set out at [59] of these reasons. They should be entitled to recover the filing fee on the Application for leave to appeal or appeal.
  4. [64]
    We turn now to the application to dismiss. The Harrisons make a claim in the total amount of $3,300 for the costs of the two interlocutory applications by Mr Meehan in REO006-15 and the further interlocutory application in APL273-15. There is no evidence before us in relation to the amount claimed in the form of a tax invoice or receipts issued by counsel for the Harrisons. It is therefore not apparent how the amount is calculated or how the amount is broken down between the three interlocutory applications. The application to dismiss was, in our view, misconceived and the Harrisons should have their costs of that application. As there is no evidence before us upon which we can make a determination as to whether or not to fix the costs or order that the costs be assessed we will make directions for the Harrisons to file further submissions including evidence of amounts paid in relation to the application to dismiss. Those submissions must be filed within the next seven (7) days. Mr Meehan will be given a chance to respond to these submissions also within seven (7) days. This should not be construed as an opportunity for the Harrisons to re-agitate any other aspect of the issue of costs. The submissions must be limited to the question of the costs of the application to dismiss. 
  5. [65]
    Mr Meehan says that he has been entirely successful in APL374-15 and should have his costs of the appeal. The amount claimed by Mr Meehan in APL374-15 is $5,286.60. This figure is derived from a schedule of costs attached to Mr Meehan’s submissions on costs from which have been extracted only those amounts said to be related to APL374-15. The amounts appear to be based upon an hourly charge out rate by his solicitors of $270.00. Mr Meehan claims various other amounts however these relate to REO006-15. Mr Meehan also claims the filing fee on the Application for leave to appeal or appeal of $610.00.
  6. [66]
    Mr Meehan was entirely successful in APL374-15. He should be entitled to his costs of the appeal. It is unclear the basis upon which the amounts have been claimed, that is, whether the assessment is on the standard basis or upon the indemnity basis. It is therefore not possible for us to fix the costs claimed by Mr Meehan. The tribunal has held that lump sum scales are less suitable for assessing costs than itemised scales.[26] The appropriate order is that Mr Meehan is entitled to recover his costs in APL374-15 on the standard basis to be assessed in accordance with the Uniform Civil Procedure Rules 1999 Magistrates Court Scale of Costs Schedule 3 Part 3 as if the proceeding had been heard and determined in the Magistrates Court of Queensland.

Conclusion

  1. [67]
    We have, in these reasons, set out the bases upon which costs should be awarded. Final orders will not be made until the parties have had the opportunity to file submissions on the costs of the application to dismiss. 
  2. [68]
    We make the following orders:
    1. Karen & Scott Harrison must file in the Tribunal two (2) copies and give to Michael Meehan one (1) copy of further submissions limited to the application to dismiss filed in APL273-15 which submissions must not exceed two (2) pages in length, within twenty one (21) days of the date of this decision;
    2. Michael Meehan must file in the Tribunal two (2) copies and give to Karen & Scott Harrison one (1) copy of submissions in reply which submissions must not exceed two (2) pages in length, within twenty eight (28) days of the date of this decision;
    3. The Appeal Tribunal will make final orders in relation to costs in APL273-15 and APL375-15 after twenty eight (28) days from the date of this decision whether or not the parties have filed submissions in accordance with these orders.

Footnotes

[1]Harrison & Anor v Meehan [2016] QCATA 197.

[2]Ibid.

[3]Harrison & Anor v Meehan [2017] QCA 315.

[4]QCAT Act, s 135(4).

[5]Ibid, s 138(5).

[6]Ibid, s 100.

[7]Ibid, s 102(1).

[8]See Olindaridge Pty Ltd & Wagner v Tracey [2015] QCATA 175 followed in Pivovarova v Michelsen [2016] QCATA 45. See also Wharton v Duffy Constructions (QLD) Pty Ltd [2016] QCATA 12 followed in Lee Manson t/as Manson Homes v Brett & Anor [2018] QCATA 109.

[9]Lyons v Dreamstarter Pty Ltd [2011] QCATA 142.

[10]Decision in REO006-15 dated 9 July 2015.

[11]Decision in REO006-15 dated 14 July 2015.

[12]Decision in APL273-15 dated 4 August 2015.

[13]Harrison v Meehan [2015] QCAT 205 at [32].

[14]Ibid at [48] and [49].

[15]Harrison and Anor v Meehan [2016] QCATA 197 at [31].

[16]Ibid at [61].

[17]Harrison v Meehan [2015] QCAT 205 at [58].

[18]QCAT Act, s 142(3)(a)(iii).

[19]Earth Spirit Homes Pty Ltd v Nichols [2014] QCATA 259, citing Pickering v McArthur [2005] QCA 294 at [3].

[20]Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 citing Oshlak v Richmond River Council (1998) 193 CLR 72 at 88.

[21]Tamawood Ltd v Paans [2005] 2 Qd R 101 at [33] per Keane J.

[22]Directions dated 26 August 2014.

[23]Hennessey Glass and Aluminium Pty Ltd v Watpac Australia Pty Ltd [2007] QDC 57 citing Dal Pont “Law of Costs” (2003).

[24][2015] QCATA 175.

[25][2008] NSWSC 1423 at [31].

[26]Salam & Anor v Henley Properties (QLD) Pty Ltd [2016] QCATA 98 at [16].

Close

Editorial Notes

  • Published Case Name:

    Harrison & Anor v Meehan

  • Shortened Case Name:

    Harrison v Meehan

  • MNC:

    [2018] QCATA 191

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown, Senior Member Guthrie

  • Date:

    19 Dec 2018

Appeal Status

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