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Visionscapes (Aust) Pty Ltd v Weidmann [2009] QCCTB 258 (28 October 2009)

Last Updated: 9 November 2009

REASONS FOR DECISION

Introduction

1.               This is an application for costs brought by the respondents further to my decision delivered 15 April 2009.

Respondents’ submissions

I am writing to apply for costs in the case of BD216-08 under the CCT Act 2003 Sections 70 and 71.

Section 70 states that the parties should pay their own costs “unless the interests of justice require otherwise.”

My husband & I believe this statement t be true in this case brought by Visionscapes.

Visionscapes lost the case which should never have been brought to the Tribunal as Mr Carlile (Visionscape’s Director) never looked at the work which he called “finished”.

He did not attend the BSA Inspection.

He did not acknowledge the inspection carried out by Australian Building Inspection Services which we organised & paid for.

He refused to organise an independent inspection that we welcomed him to do.

Mr Peter Lohrisch in his decision stated that Visionscape failed to inspect or attempt to finish the work and was in breach of the contract in many areas.

Section 71 states that in awarding costs, the Tribunal may have regard to the following.

(a) Outcome of the proceedings.

(b) Conduct of the parties to the proceeding, before & during.

(c) The relative strengths of the claims made by each of the parties to the proceedings.

(d) Any contravention of an Act by a party to the proceeding.

I would like to state my case under each of these points.

(a) Mr Peter Lohrisch found that we did not owe Visionscapes the $60,468.50 plus 13.07% interest plus costs that they demanded.

He said that Visionscapes was in breach of the contract by refusing to finish the work & in fact terminated the contract by refusing to return to the site to inspect the work or complete the work according to the contract.

Visionscapes refused to attend the BSA inspection when requested by Angus Ross (BSA inspector).

Visionscapes refused to send their own inspector when we continually invited them to do so.

(b) Robert Carlile refused to admit that the work was in any way defective during the 3 day trail.

His own barrister said we should not have called in the BSA as his “client distrusted the BSA”.

In his statement to the Tribunal, Mr Carlile said that the work was 100% perfect even thought he admitted never being on site for one month, but trusting his labourer to lay the pavers correctly.

He refused to admit that most of the pavers were drummy, and said that water seeping up through the pavers was “normal”.

His manner during questioning was belligerent, arrogant & untruthful.

He answered questions to me “whatever Joy whatever”.

(c) Mr Carlile had no strong claims in his case.

He refused to return to our home or to speak with us for over 6 months.

The work had obvious major defects.

He was told this by two building inspectors, BSA & ABIS.

He had not witnesses except himself, his wife & the labourer who did the work.

Their case was the work 100% perfect because they said so and they wanted their money even though they knew the work was not even completed according to the contract.

Mr Lohrisch says in his decision, Visionscape’s “continued refusal to complete the works & rectification of same & the applicant’s continued insistence upon being paid an amount, to which it was not entitled, under the contract, amounted to repudiation of the contract”.

By contrast, we had waited 6 months for the work to be completed & for Mr Carlile to speak to us.

We hired the inspectors & paid for them.

We lived on a building site for 12 months more than we should have, even for our son’s 21st birthday party.

We were without the pool for an extra summer.

The stress over this case which should never have been brought has caused me to need medical treatment.

Visionscapes was ordered to pay us $5,500 by 14th May.

We have not received this money.

(d) Robert Carlile admitted under oath that he did not supervise the works, even thought he was the only one with a licence to do so.

Mr Lohrisch states that Mr Carlile, “not having inspected the works at all at any time” maintained that the work was excellent up to any including the hearing. He wasted everyone’s time & money.

It was clear that he did not understand the legislation.

He failed to issue a BSA Document 3 when he said it was completed because he was not on site & also because he did not know about this document.

He unilaterally decided not to complete part of the contract – the top verandah.

He was fined for unlicensed contracting and now an infringement notice & fine have been issued by the BSA for failing to supervise the work.

The contract did not contain clear stages. Robert Carlile said payment was due when he said it was.

This case brought by Visionscapes was clearly frivolous & vexatious.

Any lawyer (we received letters from 3 lawyers & 2 barristers) should have pointed out the major faults in his claims.

Visionscapes was in breach of the DBC Act 2000 and the QBSA Act 1991 and had complete disregard for legislation & guidelines.

He has refused to comply with a direction from the Tribunal.

Visionscape’s incompetence cost us several thousands of dollars above the extra costs of re-building.

We apply for consideration by the Tribunal for these costs to be awarded to us.”

List of Costs;

Applicant’s submissions

1.               The applicant submits that no order for costs ought to be made.

2.               The respondent has submitted that it is in the interests of justice that an order for costs is made against the applicant and relies specifically upon sections 70 and 71 in support of their submissions. The respondent alleges that it is in the interest of justice that such an order for costs be made.

3.               Division 7 of the Commercial and Consumer Tribunal Act 2003, sets out the legislative provisions which enable the Tribunal to exercise its general discretion to award costs in a proceeding. The discretion of the Tribunal to exercise its ability to make an order for costs are founded essentially in sections 70 and 71 of the Act. It is submitted that an order for costs should only be made where the court has deemed that it appropriate in the interests of justice to make such an order.

4.               To make such a finding, the tribunal must also determine that the circumstances surrounding the matter are such that the tribunal is satisfied that there is good reason for the tribunal to depart from the general proposition in section 70 that each party to the proceeding should bear their own costs.

5.               For ease of reference the key provisions have been set forth below

Division 7 Costs generally

70 Purposes of div 7

The main purpose of this division is to have parties pay their

own costs unless the interests of justice require otherwise.

71 Costs

(1) In a proceeding, the tribunal may award the costs it considers appropriate on—

(a) the application of a party to the proceeding; or

(b) its own initiative.

(2) The costs the tribunal may award may be awarded at any stage of the proceeding or after the proceeding has ended.

(3) If the tribunal awards costs during a proceeding, the tribunal may order that the costs not be assessed until the proceeding ends.

(4) In deciding whether to award costs, and the amount of the costs, the tribunal may have regard to the following—

(a) the outcome of the proceeding;

(b) the conduct of the parties to the proceeding before and during the proceeding;

(c) the nature and complexity of the proceeding;

(d) the relative strengths of the claims made by each of the parties to the proceeding;

(e) any contravention of an Act by a party to the proceeding;

(f) for a proceeding to which a State agency is a party whether the other party to the proceeding was afforded natural justice by the State agency;

(g) anything else the tribunal considers relevant.

Examples of paragraph (g)—

The tribunal may consider whether a party to a proceeding is acting in a way that unreasonably disadvantages another party to the proceeding.

The tribunal may consider whether the proceeding, or a part of the proceeding, has been frivolous or vexatious.

(5) A party to a proceeding is not entitled to costs merely because—

(a) the party was the beneficiary of an order of the tribunal; or

(b) the party was legally represented at the proceeding.

(6) The power of the tribunal to award costs under this section is in addition to the tribunal’s power to award costs under another provision of this or another Act.

(7) The tribunal may direct that costs be assessed—

(a) in the way decided by a presiding case manager; or

(b) by a person appointed by the tribunal.

Judicial Guidance on the general discretion to award costs

6.               The interpretation and application of the costs regime in Division 7 of the Act was considered in depth by the Queensland Court of Appeal in Tamawood Limited v Paans [2005] QCA 111. The Court at paragraphs 24 and 25 placed substantial weighting upon the explanatory memorandum to the Bill. The court stated as follows -

The Explanatory Memorandum to the Bill for the Act stated that one of the key principles underpinning the operation of the Tribunal was to be “an emphasis on self representation – provisions are made in the Bill for parties to represent themselves, thus ensuring that the Tribunal maintains informality.” It went on to provide that “

“Clause 70 establishes beyond doubt that the purposes of this Division is that parties pay their own costs unless the interests of justice requires otherwise. The provision is in keeping with the objectives of the Bill to establish an effective and cost effective tribunal.”

7.               Further clarification to the approach in Tamawood Limited v Paans at paragraph 28 were clear in determining the effect of sections 70 and 71 of the Act. The court held that in their view s 70 and s 71(1) are intended to impose a general rule that good reason must be shown in terms of the interest of justice for making an award of costs in proceedings before the Tribunal.

8.               It is submitted that there is no good reason to vary from the general proposition that each party is to bear their own legal costs.

Consideration of section 71(4) factors

The outcome of the proceedings

9.               The respondents state that applicant lost its case. The respondents have misinterpreted the decision of the Tribunal. The Tribunal decision allowed the full payment to the applicant of $60,468.50. This was the full amount sought by the applicant in its application and was admitted to by the respondent during the course of the hearing. (See paragraph 2 of the Tribunal’s decision).

10.            In contrast, the respondent brought a counterclaim as detailed by paragraph 5 of the decision for over $98,199.50 (inclusive of GST) for which only $65,886.77 was allowed by the Tribunal. The respondents ultimately received $5,418.27 which was the difference between the amount allowed to the respondents for their counterclaim and the amount the respondents owed the applicant. This is vastly different to the $37,731 that the respondents had sought at the outset of the hearing.

11.            Over $32,000 in the alleged counterclaim by the respondents was disallowed by the Tribunal. It is apparent that decision of the Tribunal sits firmly in between the two parties’ respective positions and is not a complete loss as alleged by the respondents. The assertion by the respondents that they completely won their case is misplaced and incorrect. In considering the outcome of the proceedings the Tribunal needs to note that the respondents admitted the monies owed by the applicants and this was accepted by the Tribunal. The Tribunal also considered the counterclaim sought by the respondents and did not allow a substantial part of this claim.

12.            Much of the Tribunal hearing was allocated towards examining the claims for rectification.

13.            The Tribunal dismissed the following claims of the respondent –

a.                Unpaved areas,

b.               Wood Repairs

                                    c.Incomplete demolition of Railing Upstairs, Removal of Door Nails

                                   d.Black Everhard Drain

                                    e.Pool coping to the extent of $7000.00 disallowed

14.            In this regard the substantial item in dispute was the $61,600 (inclusive of GST) sought for the supply and laying of the new tiles and $7,700 for removal of old tiles and dump fees.

15.            It is noted that the Tribunal only allowed $43,400 for this substantial matter and found that many of the claimed costs sought by the respondents were subsumed in the costs of work performed to rectify the laying of the new tiles. Nearly a third of the respondents’ monetary counterclaim was disallowed.

16.            Accordingly, given that the applicant’s claim was allowed in full and the respondents had substantial amounts of their claimed rectification disallowed, the circumstances do not demonstrate that this is a claim whereby the respondent can be seen to have been vindicated by the decision of the Tribunal. The effect of the decision is far different. The respondents admission of the full amount (less interest) claimed by applicant and their gross overstatement of the costs of rectification further demonstrate that this is not a matter in that the Tribunal should diverge from the general proposition that each party should bear their own costs.

17.            The Tribunal expresses some disapproval of the applicant maintaining its stance that the tiles would not need to be removed and relayed up until and to a point during the hearing. This change in position partly reflects the development of evidence of Mr. Volpato at the hearing which was that all paving be taken up, compared to his earlier written report that the paving be taken up where required. The change in evidence was not obvious or made available to the applicant until the oral testimony was obtained at the hearing. The applicant cannot be said to have been able to predict the nature of this evidence prior to the hearing, and whilst with the benefit of hindsight, it may be seen to have been a preferable course of action; it is not behavior that was clearly unreasonable. The argument as to the true cost of the rectification was still required to have been argued.

18.            The oral testimony of the experts presented was that all paving had to be taken up and relayed. It was this submission that was made in the applicant’s final submissions and also was a concession made in the oral testimony of Mr. Carlile (Director of the Applicant). However, at all times the applicant had a legitimate complaint as to the extent and cost of the rectification costs sought by the respondents as outlined in the paragraphs above. The applicant submitted the rectification of the paving would total $25,900.00 whilst the respondents’ estimate of rectification was said to be $61,700. The Tribunal ultimately allowed $43,800 for this item. Such amount is in essence mathematically halfway (plus $400) between the two parties’ claims.

The conduct of the parties before and during the hearing

19.            The applicant did seek to negotiate a resolution with the respondents prior to instituting its application. It was unsuitable to the respondents.

20.            At all times during the proceedings, the applicant provided detailed written submissions, statements and submissions. The proceedings themselves were assisted by the applicant’s use of Counsel, whose experience assisted the Tribunal in having an efficient hearing, and provided written submissions on a wide range of issues before the Tribunal. If the applicant had no engaged such legal representation, the hearing would in the applicant's submission have been greatly extended and involved further inconvenience for both the Tribunal and the respondents.

21.            The applicant sought to pay the order as soon as suitable funds could be arranged and a cheque was forwarded to the respondents on 5 June 2009. This was two days prior to the date of the submissions written by the applicants, and also these funds were clearly received before the submissions were received in September 2009. The statements that the applicant has refused to pay the respondents were patently incorrect when the submissions were first made, and their deliberate repetition in correspondence to the Tribunal on three occasions is patently misleading and inaccurate.

22.            In the interim, the applicant has been subjected to a website created by the respondents; the website is titled Visionscapes Pty Ltd and suggests that they are willing to supply an unsolicited reference for clients who are interested in engaging the appellant. The website then provides a link to the Tribunal’s decision. The website is objectionable and the respondents have refused to remove the website. Such behavior is inappropriate and demonstrates that the respondents ongoing intentions to harass the applicant despite the finality of decision of the Tribunal that was issued on 15 April 2009.

23.            Further, it is noted that the Tribunal’s correspondence dated 22 September 2009 directed that the respondents immediately send a copy of all correspondence that they have sent to Tribunal to the applicant. The respondents have clearly ignored this express requirement. One can only submit such action was deliberate as they chose to delay the sending of a copy of their submissions until the last moment. The copy of their submissions dated 7 June 2009, was only received on 12 October 2009, the day before the submissions from the applicant was required to be filed. The respondent elected not to send any copies of correspondence sent on 28 August 2009 or 3 September as they state that it is exactly the same document that was initially sent but misplaced by the Tribunal. The applicant cannot comment upon the accuracy of such assertion or answer submissions made to the Tribunal in such correspondence.

Types of costs sought by Respondents

24.            The respondents have claimed $5,309.37 in costs. $4153.37 is for legal fees that were allegedly paid by the respondents to Hopgood Ganim. We note that the respondents were self represented at all times in the proceedings before the Tribunal.

25.            After the proceedings were instituted in the Tribunal’s Registry by the applicant, no communication was received from legal representatives purportedly acting on the respondents’ behalf. In the applicant’s knowledge, Hopgood Ganim has never been solicitors on the record for the respondents and has not played an active role in the proceedings. It is improper to then seek an order for costs against the applicant for legal expenses that had little input or impact upon the proceedings.

26.            Hopgood Ganim, in their capacity as solicitors for the respondents, last wrote to the applicant’s solicitors on 25 February 2008, which was 3 months prior to proceedings being instituted in the Tribunal’s registry.

27.            Accordingly, the writer can only presume that the respondents are seeking payment for legal fees that they incurred prior to the filing of application in the Tribunal’s registry on 5 June 2008. There is no real detail provided in the respondents’ submissions as to what services were provided to the respondents which details the cost of advice provided and what the respondent or at what time the advice was provided.

28.            On the information available to the applicant, the legal advice sought from Hopgood Ganim would have been sought by the respondents in their personal capacity in or around February or March 2009 and in the applicant’s submission this advice was provided well before and is not relevant to the conduct of the proceedings before the Tribunal which were commenced on 5 June 2008.

29.            Further the amount of legal costs sought would seem to be costs calculated on a solicitor client basis, and would effectively amount to indemnity costs being awarded against the applicant. An award for costs on such basis is clearly an unsuitable in the present circumstances. The costs have clearly not been sought with reference to any appropriate scale and lack sufficient detail to determine how they are in relation to the conduct of the proceedings before the Tribunal.

30.            The respondents claim a report fee for $440 for the Australian Building Inspection Services Report prepared on 15 February 2009, again well before the tribunal proceedings were commenced) and $571 for the report writer’s attendance in the tribunal.

31.            The remaining costs of totaling $145 are not clearly specified as to how they are calculated, printing and binding seems to be costs incurred by the respondents at their own discretion and attendance notices of $45 are minor costs are items that ought not be subject to any order for costs. It is the applicant’s submission that there is no compelling reason for the respondents to not bear such costs in accordance with the general principal contained in section 70.

Decision

2.               Part 5 Division 7 of the Commercial and Consumer Tribunal Act 2003 (“the CCT Act”) deals with costs. Sections 70 and 71 are within that Division and have been extracted in the applicant’s submissions.

3.               In determining what is in the interests of justice in terms of section 70, the Tribunal has a general discretion, including having regard to the specific criteria in section 71(4) of the CCT Act, depending upon the weight to be given to each of the criteria and their relevance.

Outcome

4.               It seems to me that the respondents have achieved substantial success on their counter-claim which was the only claim in issue during the hearing.

5.               In this regard, I do not accept that, on the issue of pavers, the Tribunal’s decision was about half way between the applicant’s position and that of the respondent. This is because the applicant had not accepted the tiles were drummy and needed total replacement, having been asserting a rectification involving replacement of some only of the tiles at a cost of $8,899.00 including GST. It was only during the hearing, and upon completion of the evidence of Mr Ross of the Queensland Building Services Authority, that the applicant sought leave to adduce evidence as to the cost of the applicant taking up and replacing the tiles which, as a result, introduced the figure of $25,900.00 referred to in the applicant’s submission.

Conduct

6.               As noted, the respective position of the parties at the commencement of the hearing was quite different. Moreover, the perception I gained was of an applicant who had been ignoring any view as to the alleged defectiveness of the pavers contrary to the right of the applicant to be paid in full the amount of its claim plus interest. This was, in the face of, as I have found, works which were significantly sub-standard.

7.               It is, I consider, conduct which had a level of unreasonableness which is not to be condoned as appropriate conduct.

Nature and complexity

8.               Clearly, with the considerable expert testimony involved, the proceedings were complex.

Relative strengths

9.               It could not be said that the position taken by the applicant was totally without merit. However, as I have noted, that position ignored any views contrary to the applicant’s own and therefore lacked objectivity. It should have been readily understood that the relative strengths favoured the respondents, insofar as the need for rectification was concerned.

Other matters

10.            The applicant was legally represented, as permitted by an order of the Tribunal consented to by the respondents. It would appear that the respondents did not seek such an order, preferring to represent themselves. Indeed, at no time were any solicitors for the respondents noted on the record. In this regard, I accept the applicant’s submission that the costs of Hopgood Ganim neither contained any particularity, and were, in all probability, incurred significantly prior to these proceedings commencing in the Tribunal.

11.            Whilst I consider not being represented during proceedings is not an automatic bar to a costs award, there is a limit to what costs are available to a party in such circumstances.

12.            Given no particularity, and the probability to which I have referred above, I consider that the costs of Hopgood Ganim cannot be subject to an award for costs, at least on a standard basis, in whole or in part. However, the respondents are entitled to reasonable outlays. In that regard, the fees of Australian Building Inspection Services, both as to the report and attendance, in the amounts of $440.00 and $571.00 should be allowed. This is a total of $1,011.00. Also the attendance notices at $45.00 should be allowed. As to the taxi fee and printing and binding, there is no particularity or explanation as to the reasons for (in the case of the QBSA fee) and the itemisation of (in the case of the printing and binding). Accordingly I disallow those items.

Order

13.            The order then will be that the applicant will pay to the respondents by way of costs the sum of $1,056.00 by, 4:00pm on 25 November 2009.

______________________________

MR P LOHRISCH

MEMBER

Commercial and Consumer Tribunal

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