Little v Morgan (No 2)

[2018] QCAT 367

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Little v Morgan (No 2) [2018] QCAT 367

PARTIES:

BRYAN GORDON LITTLE
(applicant)

v

JAKE MORGAN

(respondent)

APPLICATION NO:

BDL234-17

MATTER TYPE:

Building matters

DELIVERED ON:

3 November 2018

HEARING TYPE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

ORDERS:

The Tribunal directs Bryan Little pay Jake Morgan costs fixed in the sum of $5,000.00 by 4.00 pm on 30 November 2018.

CATCHWORDS:

COSTS – building dispute – open offer to settle – result no more favourable – financial position of the parties and other relevant matters – an award which is reasonable and appropriate in all of the circumstances

Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Queensland Building and Construction Commission Act 1991(Qld)

Arcon Constructions Pty Ltd v QBSA [2013] QCAT 573

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

1. This matter was heard on 24 July 2018.  I delivered my decision, with reasons, on 7 September 2018.  I invited the parties to make submissions as to costs. Those submissions have been filed.

2. Mr Little was partially successful in that I allowed the cost of some rectification work to the value of $2,654.80.  However, his claim for damages of $11,940 was unreasonable.  Indeed, I found that Mr Little owed Mr Morgan the sum of $3,877 for monies expended by him over and above what Mr Little had paid for.  I set off the cost of rectification which resulted in Mr Little being ordered to pay Mr Morgan $1,220.20.  Consequently, Mr Little was substantially unsuccessful in his claim.

3. The starting point under the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’) is that each party should bear their own costs. There are exceptions, one being where an enabling Act provides otherwise. The Queensland Building and Construction Commission Act 1991 is such an Act where the tribunal is given a discretion under s77 (3) (h) to award costs. The other exception, applicable to this case, is provided by section 105 of the QCAT Act. An example being where an offer has been made and not accepted.

4. I referred in the reasons[1] to 2 open offers that had been made by Mr Morgan to Mr Little and were not accepted.  The first was for Mr Morgan to remove the installed kitchen and repay Mr Little $4,000.  Acceptance of that offer could create some difficulties, particularly if Mr Little did not wish to have Mr Morgan back on his premises.  The second open offer, made on 7 August 2017, was to pay Mr Little $4,100 in 5 working days.  This last offer was made prior to the compulsory conference on 15 December 2017 where the matter failed to settle.

   [1]Little v Morgan [2018] QCAT 305 [33]

5. At that time, Mr Little should have been aware of all the relevant facts to enable him to make an informed decision in respect of the offer. Although, he did not have Mr Dixon’s expert report.

6. I am required, if at all possible, to fix the costs.[2] 

   [2]S107 QCAT Act

7. In fixing costs I am not bound by any particular scale of costs, although scales can be a useful guide.  The aim should be to make an award which is reasonable and appropriate in all of the circumstances.  See Arcon Constructions Pty Ltd v QBSA[3].

   [3][2013] QCAT 573.

8. Mr Morgan claims costs of $19,229.45 including GST. Detailed invoices have been provided. At the hearing, he was represented by counsel.

9. Mr Little has responded to Mr Morgan's submissions.  He submits that there was no time limit for the offer to be accepted, it did not indicate when the settlement sum was to be paid nor when the kitchen would be removed.  That may be so in respect of the first offer but the second offer was the payment of the monetary sum only and the offer was to pay that sum within 5 business days.

10. Mr Little is the carer for his wife, Tracey Shew, who is alleged to have a permanent disability of the spinal cord and some other health issues which it is not necessary for me to detail here.  Although there are no medical certificates verifying her condition but I accept that she is not well and may require future surgery. Ms Shew, in her statement says she has mounting medical costs including the costs of future surgery. I am required to take account of the financial circumstances of the parties and anything else I consider relevant.[4]  I give some weight to these matters.

    [4]S102 (3) (e) and (f).

11. Mr Little also submits that Mr Morgan did not make a claim for damages until the hearing of the matter. I agree it was a belated claim. However, even had I not set off the remainder of the amount owing to Mr Morgan the offer of $4,000 would have exceeded the cost of rectification and been a more favourable outcome to Mr Little. It is unfortunate that the parties could not have resolved this matter as the amount in dispute was relatively modest. For this, Mr Little must accept a major portion of the blame.

12. I intend to award a portion of the costs on a standard basis. I allow costs from the date of the compulsory conference being preparation and the costs of counsel. I fix the sum at $5,000.00.