Urban Homes Pty Ltd v Queensland Building and Construction Commission
[2016] QCAT 433
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Urban Homes Pty Ltd v Queensland Building and Construction Commission[2016] QCAT 433
- Add to List
Urban Homes Pty Ltd v Queensland Building and Construction Commission[2016] QCAT 433
Urban Homes Pty Ltd v Queensland Building and Construction Commission[2016] QCAT 433
CITATION: | Urban v Queensland Building and Construction Commission [2016] QCAT 433 |
PARTIES: | Urban Homes Pty Ltd (Appellant) |
v | |
Queensland Building and Construction Commission (Respondent) |
APPLICATION NUMBER: | GAR127-15 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Hughes |
DELIVERED ON: | 8 November 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – DIRECTION TO RECTIFY – REVIEW APPLICATION - COSTS – whether in the interests of justice to award costs – where complex proceedings warranting legal representation – where builder did not engage in early dispute resolution – where builder did not accept offer to settle – where outcome not more favourable than terms of offer – where Commission entitled to all reasonable costs after offer to settle – where Tribunal must fix costs if possible Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 100, s 102, s 107 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 86 Body Corporate for Sunnybank v. Coming Home Pty Ltd ATF The Coming Home Trust [2014] QCAT 192 Breezeway Developments Pty Ltd v. ADG Hydraulics Pty Ltd [2010] QCATA 69 Chelbrooke Homes Pty Ltd v. Russell & Anor (No. 2) [2011] QCAT 279 Civic Steel Homes v. Mitra [2006] QDC 322 Denmac Homes (Qld) Pty Ltd v. Queensland Building Services Authority & Ors [2011] QCAT 331 Gardener & Ors v. Office of Liquor and Gaming Regulation & Anor [2012] QCAT 62 James v. Robins [2012] QCAT 400 Kay v. Queensland Building and Construction Commission [2014] QCAT 421 Leo v. Paulsen [2010] QCAT 122 Lyons v. Dreamstarter Pty Ltd [2012] QCATA 071 Ralacom Pty Ltd v. Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 Urban Homes Pty Ltd v. Queensland Building and Construction Commission [2016] QCAT 131 Urguhart v. Partington [2013] QCAT 133 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
What is this Application about?
- [1]Urban Homes Pty Ltd unsuccessfully applied to review two items on a ‘Direction To Rectify’ issued by the Queensland Building and Construction Commission.
- [2]The Commission has now applied to the Tribunal for its costs fixed at $3,980.55.
Do the ‘interests of justice’ require a party to pay another party’s costs?
- [3]
- [4]
… the applicant relies on s 102 and the matters to be taken into account in that section, which are always helpful general principles to apply with respect to costs any award of costs is discretionary.[6]
- [5]In my view, an award of costs is appropriate given the complexity of the proceedings warranting legal representation, the lack of merit in Urban’s case about the cladding, Urban’s failure to assist the Commission by not engaging in early dispute resolution in October 2014 and Urban’s failure to accept the Commission’s offer to settle.
Did the proceedings warrant legal representation?
- [6]Urban submitted that the Tribunal had not given the Commission leave to be represented by Counsel prior to the hearing. However, the Tribunal notes that Urban did not raise this issue at the commencement of the hearing.
- [7]The Tribunal also notes that the Commission is a statutory authority unable to represent itself[7] and the issues were complex[8] requiring statutory interpretation and assessment of competing expert evidence. While it would appear that the Commission did not formally apply for leave to be represented by in-house counsel at the hearing, the Tribunal had previously granted leave for the Commission to be represented by in-house counsel at the compulsory conference.
- [8]Counsel for the Commission, Mr Formby assisted the Tribunal at the hearing to determine the issues in a way that was fair, just, economical, informal and quick.[9] For example, Mr Formby agreed to lead the Commission’s case first to assist Urban’s Director, Mr Brian Maloney understand the hearing process before Mr Maloney led Urban’s case. In my view, Mr Formby helped reduce the incursion of resources by both the parties and the Tribunal in determining the dispute.
- [9]In these circumstances, I am satisfied that legal representation of the Commission at the hearing was warranted.[10]
What was the strength of Urban’s claims?
- [10]I am not satisfied that Urban’s case to review the Direction to rectify the retaining wall lacked merit, sufficient to overcome the strong contra-indicator against awarding costs. Urban adduced expert evidence to support its hypothesis for the movement of the retaining wall.[11]
- [11]Simply because the Tribunal preferred competing evidence does not mean that Urban did not have an arguable case about the retaining wall.[12] Although Urban’s expert evidence was ultimately not sufficient to discharge the evidential burden when weighed against competing evidence, it was not devoid of merit.
- [12]It would appear that Urban honestly believed that something other than poor workmanship caused the retaining wall to move. It relied upon expert evidence to support that view. That is not unreasonable nor conduct that unnecessarily disadvantaged the Commission – it is usual conduct in the course of litigation.
- [13]Conversely, it was clear that the evidence relied upon by Urban about the Direction to rectify the cladding extended only to the product and not the installation.[13] Urban’s legal argument about the cladding similarly lacked merit.[14] I am not satisfied the application to review the Direction to rectify the cladding had a reasonable basis.
Did Urban genuinely attempt to enable and help the Commission make the decision on the merits?
- [14]As far back as October 2014, Urban had an opportunity to resolve the homeowner’s complaint and help the Commission make its decision before the Commission issued its Direction.[15] By not engaging in early dispute resolution, Urban failed to genuinely assist the Commission in making a decision.[16] Instead, Urban’s unmeritorious pursuit of the cladding issue required the Commission to expend time and resources to respond.
- [15]Rather than engage in early dispute resolution, Urban provided the Commission with manufacturer emails about the cladding product unrelated to its installation – the issue in dispute. Had Urban engaged with early dispute resolution, the defective cladding may well have resolved at an early stage, given the lack of any cogent evidence at the hearing that the cladding was not defective.[17]
Should the Tribunal consider the Commission’s offer to settle?
- [16]On 10 May 2016, the Commission offered to settle the proceedings on the basis that Urban withdraw its application with no order as to costs. This offer remained open for three days.
- [17]
- [18]Given that Urban wholly failed in its application, I am satisfied that the outcome was not more favourable than the terms of the offer. I am also satisfied that Urban was in a position to “make an informed decision having regard to the consequences of non-acceptance”.[20] The offer was made at an advanced stage of the proceedings – a mere eight days before the hearing. By then, the Commission had provided Urban with the most relevant evidence that ultimately provided the basis for the Tribunal’s decision.
- [19]Urban cannot rely upon its lack of legal representation to claim it did not know why the offer was made or on what basis:
This must be a cautionary tale to any litigant who wants to proceed in relation to a legal grievance against another party and to issue proceedings against that party. (The applicant) had the opportunity to get legal advice and chose not to. I would compare it to the situation where the surgeon takes out the wrong kidney of the patient – there may have been no intention to cause harm but it is simply unacceptable. Issuing proceedings is a very serious step for anyone… If the Applicant is unsure he can get advice. There is nothing to suggest that (the applicant) did not have the opportunity to get legal advice. The evidence is that he had that opportunity.[21]
- [20]The offer is not unduly cumbered with legal jargon and clearly states that if the Tribunal upholds the Commission’s decision, the Commission will seek costs.[22] If unsure of its meaning, Urban had the opportunity to procure legal advice about the offer before the hearing.
Weighing of the circumstances
- [21]The Tribunal must fix costs if possible.[23] The Commission submitted an itemised table of its costs in an amount of $3,980.55. However, it is unclear the basis upon which the items were calculated – the table does not refer to any scale of costs.
- [22]Doing as best as I can with a view to finalising these issues without putting the parties to further expense and delay, I will fix costs on the material before me, consistent with the Tribunal’s mandate to deal with matters in a way that is accessible, fair, just, economical, informal and quick.[24]
- [23]I am satisfied that the Commission is entitled to all reasonable costs after 10 May 2016, the date of its offer to settle. This would extend to transport to and from the hearing ($25.00), attending the hearing ($966.50 for 10 hours), drafting submissions ($220.95) and witness attendance fees for Mr Bursinal and Ms White ($157.40). None of the amounts claimed for these items is unreasonable.
- [24]I do not consider the $825.00 claimed for the witness, Mr Keys’ attendance is reasonable in the absence of any supporting invoice and the little reliance the Tribunal placed on his evidence in making its decision. I will reduce this fee to the same amount claimed for the other witnesses, being $78.70.
- [25]It is unclear whether the $500.00 claimed to prepare for hearing was incurred after the offer to settle. Without this evidence, I will reduce it by half to $250.00.
- [26]I do not consider it in the interests of justice to award the Commission any costs incurred to respond to the retaining wall before the offer to settle. I am not satisfied that Urban’s failure to engage in early dispute resolution would have resolved the retaining wall issue. Urban honestly disputed the cause and was able to procure expert evidence to support its hypothesis. Urban’s application to review the Direction to rectify the retaining wall did not lack merit and the contra-indicator against costs is not displaced up to the offer to settle.[25]
- [27]I also do not consider it in the interests of justice to award the Commission any costs incurred to respond to the cladding issue before the offer to settle. This is because although Urban’s application to review the cladding lacked merit, the costs incurred in responding to that review were inextricably linked to the retaining wall review. Both items were in the same Direction to rectify, arose out of the same facts and circumstances, proceeded together and were heard and decided together, with a resulting overlapping of work and economies of scale.
- [28]The Commission is therefore entitled to its costs incurred after its offer to settle fixed at $1,698.55.
What is the appropriate Order?
- [29]The appropriate Order is that Urban Homes Pty Ltd pay the Queensland Building and Construction Commission’s costs of the review application fixed at $1,698.50 by 5 December 2016.
Footnotes
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100.
[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102.
[3] Ralacom Pty Ltd v. Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 at [29].
[4] Body Corporate for Sunnybank v. Coming Home Pty Ltd ATF The Coming Home Trust [2014] QCAT 192 at [16].
[5] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102(3).
[6] Urguhart v. Partington [2013] QCAT 133 at [106].
[7] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 43(3)(a).
[8] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 43(3)(b).
[9] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b).
[10] Chelbrooke Homes Pty Ltd v. Russell & Anor (No. 2) [2011] QCAT 279 at [22].
[11] Urban Homes Pty Ltd v. Queensland Building and Construction Commission [2016] QCAT 131 at [12] to [14].
[12] Gardener & Ors v. Office of Liquor and Gaming Regulation & Anor [2012] QCAT 62 at [14], citing with approval Civic Steel Homes v. Mitra [2006] QDC 322; Leo v. Paulsen [2010] QCAT 122.
[13] Urban Homes Pty Ltd v. Queensland Building and Construction Commission [2016] QCAT 131 at [43] to [51].
[14] Urban Homes Pty Ltd v. Queensland Building and Construction Commission [2016] QCAT 131 at [35] to [40].
[15] Urban Homes Pty Ltd v. Queensland Building and Construction Commission [2016] QCAT 131 at [57] to [61].
[16] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102(3)(d).
[17] Urban Homes Pty Ltd v. Queensland Building and Construction Commission [2016] QCAT 131 at [44] to [52].
[18] Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 86(2).
[19] Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 86(1); Lyons v. Dreamstarter Pty Ltd [2012] QCATA 071 at [14].
[20] Denmac Homes (Qld) Pty Ltd v. Queensland Building Services Authority & Ors [2011] QCAT 331 at [39].
[21] James v. Robins [2012] QCAT 400 at [23]; see also Breezeway Developments Pty Ltd v. ADG Hydraulics Pty Ltd [2010] QCATA 69 at [13].
[22]Letter QBCC to Urban Homes Pty Ltd dated 10 May 2016, p 2.
[23] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 107(1).
[24] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b).
[25] Kay v. Queensland Building and Construction Commission [2014] QCAT 421 at [86].