Ward v Jordan (No 2)

[2020] QCAT 298

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ward v Jordan (No 2) [2020] QCAT 298

PARTIES:

MICHAEL WARD

(applicant)

v

KENNETH DONALD JORDAN T/AS KEN JORDAN SWIMMING POOLS

(respondent)

APPLICATION NO/S:

BDL180-16

MATTER TYPE:

Building matters

DELIVERED ON:

3 August 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

Kenneth Donald Jordan t/as Ken Jordan Swimming Pools is to pay Michael Ward costs fixed in the amount of $7,601.90 by 4pm 17 August 2020.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – where homeowner partly successful – where appropriate to fix costs

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

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 107

Cruceru v Medical Board of Australia [2016] QCAT 111

Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
Stuart Homes and Renovations v Denton [2012] QCAT 43

Tamawood Ltd v Paans [2005] 2 Qd R 101

REPRESENTATION:
Applicant:	W Morgan of Morgan Mac Lawyers
Respondent:	No submissions received
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

1. By decision delivered 19 February 2020 I awarded Mr Ward damages for breach of contract by Mr Jordan in the amount of $15,131.15 (incl GST) and invited submissions on the question of costs.

2. Mr Ward applied for an order for costs in the amount of $9,750.70 as follows:

   (a)Legal costs in the sum of $5,000 (incl GST) pursuant to a fixed sum client agreement for work done to the filing of written submissions;

   (b)Legal costs of $1,320 for work done in connection with an affidavit and submissions on costs;

   (c)Filing fee of $315.70;

   (d)Fees paid to Mr Follett, who gave expert evidence on behalf of Mr Ward in the sum of $3,115.

3. No submissions from Mr Jordan have been received despite the time for their receipt having expired.

4. It is a well-established principle that the Tribunal’s discretion to award costs in a building dispute[1] is a broader and more general discretion than the one conferred by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).[2]

   [1]Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(h) (‘QBCC Act’); Lyons v Dreamstarter Pty Ltd [2011] QCATA 142.

   [2]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 (‘QCAT Act’).

5. The Tribunal, in exercising its general discretion to award costs, may consider the matters referred to in s 102(3) of the QCAT Act.

6. The relative strength of the claims is a factor in favour of an award of costs. Mr Ward was successful in obtaining a decision in his favour but not for the full amount of damages sought. 

7. I was satisfied that he had made out a claim for three of the six items of defective or incomplete work, being $7,260 (incl GST) for the pool fence and gate,  $9,980.20 (incl GST) for grouting and tiles and $3,890.95 (incl GST) for solar against which the unpaid balance of the contract in the sum of $6,000 was offset.  Mr Ward was not successful in his claim for the glass bead liner in the sum of $5,850, pool lights in the sum of $910 (incl GST) nor his claim for pool returns in the sum of $4,390. Nor was Mr Ward successful in claims for liquidated damages and solatium made in the final submissions.  The award of damages was quite substantial when compared with the original contract price of $40,000.

8. If a costs order is not made Mr Ward’s success will be eroded through legal costs. This is a factor in favour of an award of costs.[3]

   [3]Tamawood Ltd v Paans [2005] 2 Qd R 101; Stuart Homes and Renovations v Denton [2012] QCAT 43.

9. The nature and complexity of the dispute is a factor in favour of an award of costs.  The dispute involved issues of whether practical completion had been achieved, whether the contractor validly suspended the works, whether either party validly terminated the contract, whether work was defective or incomplete and the reasonable costs to rectify or complete any such work.  Expert evidence was relied upon by the parties.

10. The financial circumstances of the parties is not a factor in favour or against an award of costs as there is no specific evidence before the Tribunal on this point.

11. I am satisfied that the circumstances of this case warrant an award of costs of and incidental to the proceedings in favour of Mr Ward.

12. If the Tribunal makes a costs order, it is to fix the costs if possible.[4]

    [4]QCAT Act, s 107.

13. The Tribunal constituted by Hon JB Thomas, Judicial Member, stated in Cruceru v Medical Board of Australia[5]

    Having regard to the objects of the QCAT Act, the discretion to fix costs under s107 is an extremely wide one and is to be exercised robustly.

    [5][2016] QCAT 111 at [49].

14. Mr Ward submitted documentary evidence in support of the costs claimed.

15. Whilst the evidence is that the legal fees were heavily discounted, so that I accept the costs are reasonable, I am not satisfied that Mr Ward should be awarded all his legal costs incurred in circumstances where a significant portion of his claim was not proven.  Much of the evidence and oral hearing involved the three major claims i.e. claims for the pool fence and gate, grouting and tiles and the glass bead liner.  Mr Ward was successful in two of these three claims.  Mr Follett’s evidence was of assistance in each of the three major claims.  The third successful claim related to the failure to complete the solar heating installation, which was conceded as being incomplete but was disputed as to the reasonable costs of completing the work.

16. I fix Mr Ward’s costs payable at $7,601.90 calculated as follows:

    (a)Filing fee of $315.70;

    (b)Expert’s fees of $3,115;

    (c)Legal costs of $4,171.20.[6] 

    [6]Approximately two-thirds of the legal costs.