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Queensland Judgments
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  • Unreported Judgment

Yong Construction Group Pty Ltd v Queensland Building and Construction Commission

 

[2020] QCAT 139

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Yong Construction Group Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 139

PARTIES:

YONG CONSTRUCTION GROUP PTY LTD

(applicant)

 

v

 

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR459-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

5 May 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Kent

ORDERS:

Each party is to bear its own costs of the proceedings.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – costs – Queensland Civil and Administrative Tribunal Act 2009 (Qld) – s 100, s 102

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – Queensland Civil and Administrative Tribunal Act 2009 (Qld) – s 100, s 102

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 100, s 102, s 107(1), Chapter 2 Division 3

Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364

Latoudis v Casey (1990) 170 CLR 534

Cachia v Hanes (1994) 179 CLR 403

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412

Schofield v Queensland Building and Construction Commission & Anor [2019] QCAT 310

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. [1]
    This matter arose when Yong Construction Pty Ltd (Yong) made an application to review of a decision of the Queensland Building and Construction Commission (QBCC) dated 27 November 2018. The decision was about the scope of works to be undertaken under the Queensland home warranty scheme to rectify or complete tribunal work. The matter was heard by the Tribunal on 18 November 2019. The Tribunal found that the decision on the scope of works dated 27 November 2018 should be confirmed. Oral reasons for this decision were delivered on 12 December 2019.
  2. [2]
    On 12 December 2019 further directions were issued stating that the QBCC had until 20 January 2020 to file submissions and supporting documents in relation to the issue of costs. On 6 February 2020, the QBCC emailed the Tribunal indicating that “Notwithstanding that the Commission’s decision dated 27 November 2018 about a scope of works was confirmed, the Commission proposes that each party bear its own costs of and incidental to the proceeding.” It appears from the material filed in the Tribunal that Yong were copied into this email using the email address that the company provided to the Tribunal and the respondent.
  3. [3]
    Under the directions issued on 12 December 2019 Yong were directed to file submissions in response to any material filed by the QBCC under direction 1 of those same directions. Yong was non-compliant with this direction and did not file material as directed.
  4. [4]
    The QBCC were given a right of response to any submission filed by Yong under direction 2 of the directions issued 12 December 2019. As Yong filed nothing, this direction became redundant.
  5. [5]
    In the case of Schofield v Queensland Building and Construction Commission & Anor [2019] QCAT 310, Member Dr Collier provided the following pertinent summary of the rules relating to costs in matters such as the current case to the principal proceeding before the Tribunal:

… the principal proceeding before the Tribunal was not a building dispute but one involving its review jurisdiction as defined in Chapter 2 Division 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

This means the starting point concerning costs in this Tribunal is to be found in s 100 of the QCAT Act, that parties should bear their own costs in proceedings.

Section 102 of the QCAT Act sets out the basis on which this Tribunal may award costs in a matter:

  1. (1)
    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.

  1. (3)
    In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
    1. whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);
    2. the nature and complexity of the dispute the subject of the proceeding;
    3. the relative strengths of the claims made by each of the parties to the proceeding;
    4. for a proceeding for the review of a reviewable decision—
      1. whether the applicant was afforded natural justice by the decision- maker for the decision; and
      2. whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
    5. the financial circumstances of the parties to the proceeding;
    6. anything else the tribunal considers relevant.

The Tribunal will also assess whether, if costs are to be awarded, they are to be awarded at the standard rate, or some other rate, including indemnity costs.

Further, section 107(1) of the QCAT Act requires that, ‘If the tribunal makes a costs order under this Act or an enabling Act, the tribunal must fix the costs if possible’.

The basis on which costs should be considered in this Tribunal is described in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) where the Tribunal said:[1]

Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.

In assessing whether to award costs guidance is provided by decisions such as Ascot v Nursing & Midwifery Board of Australia where the Tribunal said:[2]

The public policy intent of the provisions in the QCAT Act is plain. The tribunal was established as a no costs jurisdiction. That may be departed from where the interests of justice require it. The considerations identified in s102(3) are not grounds for awarding costs. They are factors that may be taken into account in determining whether, in a particular case, the interests of justice require the tribunal to make a costs order.

Further, it is a well-established principle enunciated by the High Court that costs are not awarded to punish an unsuccessful party.[3] The primary purpose of an award of costs is to indemnify the successful party.

  1. [6]
    In this case the QBCC may be referred to as the successful party. They have clearly indicated that they do not seek to recover costs in this matter.
  2. [7]
    No material placed before the Tribunal engages s102 of the QCAT Act. No evidence exists that would justify a finding that it is in the interests of justice to award costs in this case. There is nothing that compels me to conclude that the strong contra-indication against costs orders in s100  of the QCAT Act has been overcome.
  3. [8]
    In summary the only material that has been filed before the Tribunal relating to costs is the submission made by the QBCC that they do not seek costs ordered in their favour. Yong has failed to file any material in response to the Tribunal’s directions. In the circumstances, I am satisfied that the appropriate order is that each party is to bear their own costs of the proceedings.

Footnotes

[1] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, [29].

[2] Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364, [9].

[3] Latoudis v Casey (1990) 170 CLR 534, 543 (Mason CJ), 562-563 (Toohey J), 566-567 (McHugh J); Cachia v Hanes (1994) 179 CLR 403, 410 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ); Oshlack v Richmond River Council (1998) 193 CLR 72.

Close

Editorial Notes

  • Published Case Name:

    Yong Construction Group Pty Ltd v Queensland Building and Construction Commission

  • Shortened Case Name:

    Yong Construction Group Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2020] QCAT 139

  • Court:

    QCAT

  • Judge(s):

    Member Kent

  • Date:

    05 May 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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