Pollard v Hornick

[2012] QCAT 502

CITATION: Pollard and Anor v Hornick [2012] QCAT 502

PARTIES:	Grant Pollard and Caroline Pollard (Applicants)
v
Anthony Bryant Hornick (Respondent)

APPLICATION NUMBER: BDL038-11

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Sandra G Deane, Member

DELIVERED ON: 8 October 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Mr and Mrs Pollard’s application for costs is allowed.

2.    Mr Hornick is to pay to Mr and Mrs Pollard costs fixed in the sum of $1,413.00 within 14 days of the date of this order.

CATCHWORDS:

Costs – where party substantially successful – witness expenses

Queensland Civil and Administrative Tribunal Act 2009, ss 100, 102, 107

Queensland Building Services Authority Act 1991, s 77

Lyons v Dreamstarter [2011] QCATA 142
Oshlak v Richmond River Council (1998) 193 CLR 72
Latoudis v Casey (1990) 170 CLR 534

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. Mr and Mrs Pollard were substantially successful in their domestic building claim against Mr Hornick.

2. I directed the parties to make submissions in relation to costs.  I also directed that unless a party requested an oral hearing these applications would be determined on the papers.  Submissions from both parties have been received.  No party has requested an oral hearing.

3. If the Tribunal makes a costs order it must fix the costs if possible.[1]

   [1] Section 107(1) QCAT Act.

4. Mr and Mrs Pollard contend that they ought to have the benefit of a costs order in relation to the costs incurred by them in relation to two witnesses.  These costs are:

a)Michael Watson

i)     Invoice no 2068 – attendance at hearing  $308.00

ii)    Invoice no 2020 – inspection and preparation of report     $165.00

b)Michael Glab – invoice no 176

i)     inspection, preparation of report  $690.91

ii)    attendance at hearing by remote conferencing                  $163.64

iii)   GST  $  85.45

Total             $940.00

1. Mr Hornick in his submissions in response agrees to an order being made in relation to Michael Watson’s witness expenses and to an amount of $163.64 in respect of Mr Glab’s costs.  This amount is the GST exclusive amount.  Mr Hornick makes no submissions in relation to why he ought not to also pay the GST on this part of the invoice.  I find that it is more likely than not that this was a mere oversight.

2. Mr Hornick disputes the necessity for Mr Glab to produce a report and says that Mr and Mrs Pollard could have sought information from Mr Glab by telephone as Mr Glab was familiar with the work.

3. As is usual practice in this Tribunal the parties were directed to file and serve written statements of evidence upon which they intended to rely.  Mr and Mrs Pollard intended to rely and did rely upon a written statement by Mr Glab. 

4. In the circumstances I find that it was reasonable for Mr and Mrs Pollard to seek a written statement from Mr Glab. 

5. The QCAT Act provides “Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceedings.”[2]

   [2] Section 100 QCAT Act.

[10]  Section 102(1) states “The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.”

[11] Section 102(3) sets out criteria to which the Tribunal may have regard.

[12] Section 77 of the Queensland Building Services Authority Act 1991 (QBSA Act) confers jurisdiction on the Tribunal to determine building disputes such as the one brought by Mr and Mrs Pollard.  This section has been considered by the Appeal Tribunal in Lyons V Dreamstarter.[3] 

[3] [2011] QCATA 142.

[13]  In that decision the Appeal Tribunal noted that section 77(2)(h) provides that the Tribunal may award costs and does not provide further guidance or conditions of exercise of that power.  The Appeal Tribunal also noted at [33-34] that “A jurisdiction given in general terms allows the Tribunal to make an order as to costs that is justified in the circumstances.[4]  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.[5]  Accordingly an enabling Act, the QBSA Act, does, provide otherwise.  As a result, the usual position as to costs in the Tribunal is displaced.”

[4]        Oshlak v Richmond River Council (1998) 193 CLR 72 at 88.

[5]        Latoudis v Casey (1990) 170 CLR 534 at 557.

[14]  The purpose of a costs order is to indemnify a party for incurring the expense of the proceedings.

[15]   I am satisfied that the circumstances of this case warrant an award of costs fixed in the sum of $1,413.00.