Zhang v Queensland Building and Construction Commission (No 2)
[2015] QCAT 192
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- Unreported Judgment
- Zhang v Queensland Building and Construction Commission (No 2)[2015] QCAT 192
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Zhang v Queensland Building and Construction Commission (No 2)[2015] QCAT 192
Zhang v Queensland Building and Construction Commission (No 2)[2015] QCAT 192
CITATION: | Zhang v Queensland Building and Construction Commission (No 2) [2015] QCAT 192 |
PARTIES: | Chris Zhang (Applicant) v Queensland Building and Construction Commission (Respondent) |
APPLICATION NUMBER: | GAR286-14 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | 25 March 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Member Lumb |
DELIVERED ON: | 27 May 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW – COSTS – whether in the interests of justice to make order other than the parties bear their own costs Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Zhang v Queensland Building and Construction Commission [2015] QCAT 106 |
APPEARANCES: | |
APPLICANT: | Chris Zhang |
RESPONDENT: | Queensland Building and Construction Commission represented by Ms B Gilbey in-house Lawyer |
REASONS FOR DECISION
- [1]By a decision of the Tribunal delivered on 7 April 2015 it was ordered that:
- The decision of the Queensland Building and Construction Commission of 3 September 2014 not to give a direction to rectify building work is confirmed.
- Unless a written submission seeking a different costs order is filed by either party within 14 days of the date of these orders, the parties shall bear their own costs of the Application for review.
- [2]On 16 April 2015 Mr Zhang sought, in writing, an order that the Queensland Building and Construction Commission (QBCC) pay Mr Zhang’s review application/proceeding fees.
- [3]Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (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 proceeding.
- [4]Section 102 of the QCAT Act provides:
- (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.
- (2)However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.
- (3)In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
- (a)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);
- (b)the nature and complexity of the dispute the subject of the proceeding;
- (c)the relative strengths of the claims made by each of the parties to the proceeding;
- (d)for a proceeding for the review of a reviewable decision—
- (i)whether the applicant was afforded natural justice by the decision-maker for the decision; and
- (ii)whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
- (e)the financial circumstances of the parties to the proceeding;
- (f)anything else the tribunal considers relevant.
- [5]
- The similar QCAT Act provision to s 70 is, it might be said, in terms that more plainly indicate that the legislature had turned its face against awards of costs in this tribunal: s 100 says that ‘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 proceeding’.
- In considering ss 70 and 71 Keane JA (as his Honour then was) referred, however, to two matters relevant here. First, his Honour held that the CCT provisions negated the traditional proposition that costs should prima facie follow the event (unless of course that the Tribunal considers that another order is more appropriate) and that the nature and extent of the power to award costs could only be discerned by close consideration of the terms of the statute which created and prescribed the occasions and conditions for its exercise. Sections 100 and 102 of the QCAT Act attract the operation of the same principles.
- Second, Keane JA was of the view that where the complexity of the matter justified legal representation, it would not be in the interests of justice to bar the successful party from recovering costs that were reasonably necessary to achieve a satisfactory outcome.
- That conclusion must, here, be considered in the light of the difference between s 70 of the CCT Act and s 100 of the QCAT Act. Section 70 speaks of a ‘main purpose’, but s 100 mandates that parties shall bear their own costs. Section 70 contains, within itself, a reference to the condition or circumstance in which the main purpose may be subsumed to the interests of justice; s 100 has no such proviso, although it appears later, in s 102(1).
- Under that subsection QCAT has a discretion to make a costs order ‘…if the tribunal considers the interests of justice require it…’. Section 102(3) says that, in deciding whether to award costs, the tribunal may have regard to matters not dissimilar to those set out in s 71 of the CCT Act including, in particular for present purposes, the nature and complexity of the dispute and the relative strength of each party’s claims.
- 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. (underlining added, footnotes omitted)
- [6]The stated basis for the order sought by Mr Zhang was that the application for review was brought in response to the ‘dishonesty and unprofessionalism’ of the QBCC. I reject that characterisation of the conduct complained of by Mr Zhang. The factual basis for Mr Zhang’s complaint was that in notifying the decision not to rectify the defects, it was stated that the QBCC would not be issuing a direction to rectify because Mr Zhang did not notify the QBCC of the defects within the required time period.[3] In fact, as noted in the primary reasons, Mr Zhang had previously complained and this had been investigated by the QBCC. Although there was no explanation for why the QBCC relied upon this ground in notifying the decision, I find that there is no proper basis for sustaining Mr Zhang’s (serious) assertion.
- [7]While I consider that Mr Zhang has some cause for complaint, it is my view that it is not sufficient to displace the usual order for costs set out in s 100 of the QCAT Act.
- [8]Prior to being notified of the Decision of the QBCC, the consulting engineer engaged by QBCC (Mr Hughes) had concluded that the drain was superfluous and had no adverse effect on the performance or functionality of the retaining wall. This matter was set out in the 2014 report as identified in paragraphs [19] to [21] of the primary reasons in this matter. Mr Hughes’ evidence was relied upon by the QBCC at the hearing and his evidence was accepted by the Tribunal. Mr Zhang’s application to review was dismissed. I note that Mr Zhang continued to challenge the original decision at the hearing notwithstanding Mr Hughes’ evidence (and no expert engineering evidence was called by Mr Zhang). In these circumstances, I find that the interests of justice do not point compellingly to a different costs order than one in which the parties shall bear their own costs of the application to review.
- [9]I order that the parties shall bear their own costs of the application for review.