Hitchman v Prime Building & Pest Consultants Pty Ltd (No 2)

[2016] QCAT 476

CITATION: Hitchman v. Prime Building & Pest Consultants Pty Ltd (No 2) [2016] QCAT 476

PARTIES:	Rory Hitchman Janine Hitchman (Applicants)
v
Prime Building & Pest Consultants Pty Ltd (Respondent)

APPLICATION NUMBER: BDL150-15

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Hughes

DELIVERED ON: 1 December 2016

DELIVERED AT: Brisbane

ORDERS MADE:

1.      Each party pays their own costs.

CATCHWORDS:

BUILDING DISPUTE – COSTS – where Tribunal has broad and general discretion to award costs – where general rule that successful party entitled to costs – where neither party successful – where respondent did not properly engage with dispute resolution process or substantiate many of its claimed costs

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

A L Builders Pty Ltd v. Fatseas (No. 2) [2014] QCATA 319
Ascot v. Nursing & Midwifery Board of Australia [2010] QCAT 364
Breezeway Developments Pty Ltd v. ADG Hydraulics Pty Ltd [2010] QCATA 69
Faulks v. New World Constructions Pty Ltd (No. 2) [2014] QCAT 329
Hitchman v. Prime Building & Pest Consultants Pty Ltd [2016] QCAT 261
James v. Robins [2012] QCAT 400
Lyons v. Dreamstarter Pty Ltd [2012] QCATA 71

APPEARANCES:               

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

What is this Application about?

1. The Tribunal ordered Prime Building & Pest Consultants Pty Ltd to pay to Rory Hitchman and Janine Hitchman the sum of $750.00, out of a claim for $18,662.69.[1]

   [1]Hitchman v. Prime Building & Pest Consultants Pty Ltd [2016] QCAT 261.

2. Having received submissions from the parties, the remaining issue for me to decide is whether I should award costs.

Should either party pay the other party’s costs?

1. In my view, each party should pay their own costs for the below reasons.

2. The Tribunal may award costs when deciding a building dispute.[2] This confers a broad and general discretion on the Tribunal to award costs, displacing the usual ‘no costs position’.[3]

   [2]Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(h).

   [3]Lyons v. Dreamstarter Pty Ltd [2012] QCATA 71 at [3] and unlike Ascot v. Nursing & Midwifery Board of Australia [2010] QCAT 364 at [6] and [28] where Kingham DCJ specifically applied the usual ‘no costs’ position in the absence of other provisions in the relevant enabling Act and further noted considerations peculiar to review proceedings in refusing to award costs against the unsuccessful party.

3. The general rule in building disputes is that a successful party is entitled to recover its costs from the other party.[4] Unfortunately, it would appear that Mr and Mrs Hitchman embarked upon litigation that was doomed, without the benefit of legal advice and proper evidence about causation and quantum:

   This must be a cautionary tale to any litigant who wants to proceed in relation to a legal grievance against another party and to issue proceedings against that party. (The applicant) had the opportunity to get legal advice and chose not to. I would compare it to the situation where the surgeon takes out the wrong kidney of the patient – there may have been no intention to cause harm but it is simply unacceptable. Issuing proceedings is a very serious step for anyone… If the Applicant is unsure he can get legal advice. There is nothing to suggest that (the Applicant) did not have the opportunity to get legal advice. The evidence is that he had that opportunity.[5]

   [4]Faulks v. New World Constructions Pty Ltd (No. 2) [2014] QCAT 329 at [17]; A L Builders Pty Ltd v. Fatseas (No. 2) [2014] QCATA 319 at [4].

   [5]James v. Robins [2012] QCAT 400 at [23]; see also Breezeway Developments Pty Ltd v. ADG Hydraulics Pty Ltd [2010] QCATA 69 at [13].

4. Mr and Mrs Hitchman did prove that Prime’s report failed to identify damage to rafters in their lounge room. Crucially, however, they failed to establish that Prime’s failure caused them loss, apart from the cost of the report. Without evidence of causation, most of their claim could not succeed. This means they were only awarded $750.00 out of a total claim of $18,662.69. In these circumstances, I do not consider that Mr and Mrs Hitchman were “successful” in their claim.

5. Similarly, I do not consider Prime to be “successful” in circumstances where its report failed to identify concealed structural damage as promised and it was ordered to refund its contract fee to Mr and Mrs Hitchman. This alone is sufficient to dismiss its claim for costs.

6. Nevertheless, Prime submitted that it should be awarded its costs of $3,905.11 as it “has unfairly suffered expenses in representing itself against a claim that should never have gone to court if the Hitchmans didn’t try to get more than they were entitled to.”[6] However, Prime failed to properly engage with the dispute resolution process. Prime did not attend the site inspection on 12 June 2014, the compulsory conference on 15 October 2015 or the Directions Hearing on 9 December 2015. Had Prime attended any of these or genuinely attempted to resolve the dispute with Mr and Mrs Hitchman, it may not have incurred many of its claimed costs.

   [6]Prime Submissions on costs dated 5 September 2016 at [18].

7. Regardless, of the $3,905.11 costs that Prime claimed, $1743.11 was to attend a site inspection and the hearing. The costs of self-represented parties to prepare for and attend a hearing are not recoverable. Prime also claimed $770.00 for legal advice and $630.00 for “Reports and Administration”, but I am not satisfied these are recoverable in the absence of further details or substantiation. I am also not satisfied to award expert witness fees of $762.00, when that evidence ultimately formed no part of the Tribunal’s decision. 

8. I am therefore not satisfied to award any costs to Prime.

9. The appropriate order is that each party pays their own costs.