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  4. Goldfield Projects Pty Ltd v Queensland Building and Construction Commission (No 2) - [2016] QCAT 495

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Goldfield Projects Pty Ltd v Queensland Building and Construction Commission (No 2)[2016] QCAT 495

Goldfield Projects Pty Ltd v Queensland Building and Construction Commission (No 2)[2016] QCAT 495

CITATION:

Goldfield Projects Pty Ltd v Queensland Building and Construction Commission (No 2) [2016] QCAT 495

PARTIES:

Goldfield Projects Pty Ltd 

(Applicant)

v

Queensland Building and Construction Commission  

(Respondent)

APPLICATION NUMBER:

GAR073-14

MATTER TYPE:

General administrative review matters 

HEARING DATE:

2 June 2016 

HEARD AT:

Brisbane

DECISION OF:

Member Traves

DELIVERED ON:

14 December 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application for costs is dismissed.

CATCHWORDS:

COSTS - APPLICATION TO REVIEW - DIRECTION TO RECTIFY – review of decision allowed – whether applicant entitled to costs.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48, s 100, s 102.

Queensland Building and Construction Commission Act 1991 (Qld), s 73(h).

Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 193.

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

APPEARANCES

Ms Cheriden Farthing for the QBCC

McKays solicitors for the applicant

REASONS FOR DECISION

Introduction

  1. [1]
    On 5 October 2016 the Tribunal set aside a decision by the Queensland Building and Construction Commission (QBCC) to issue a Direction to Rectify to Goldfield Projects Pty Ltd (Goldfield) in relation to a leaking toilet. Goldfield applied for their costs on an indemnity basis.[1] The decision of 5 October 2016 was silent as to costs. On that basis a further application was made seeking an order as to costs pursuant to s 135(b) of the Queensland Civil and Administrative Act 2009 (Qld) (QCAT Act).

The power to award costs

  1. [2]
    There is no common law jurisdiction in tribunals to award costs. The power is entirely a creature of statute.[2] The award of costs in the Tribunal is governed by Chapter 2, Part 2, Division 6 of the QCAT Act.
  2. [3]
    Section 100 of the 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.

  1. [4]
    Section 102(1) provides:

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. [5]
    Although there is a separate provision governing costs for building disputes in the enabling Act,[3] there is no such provision in respect of costs for review proceedings. This may reflect the different nature of the proceedings: building disputes are adversarial between private parties whereas review proceedings in this context are not, involving a statutory regulatory body whose role in the review is to act as a “model litigant” and to assist the Tribunal in arriving at the preferable decision.
  2. [6]
    Whether costs are awarded in review proceedings under the Queensland Building and Construction Commission Act 1991 (Qld) is therefore to be determined solely by applying the relevant provisions of the QCAT Act.
  3. [7]
    Costs are dealt with in Chapter 2, Part 6, Division 6 of the QCAT Act.
  4. [8]
    Section 100 provides:

100 Each party usually bears own costs

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.

  1. [9]
    Section 102 provides: 

102 Costs against party in interests of justice

(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) ………

(3) In deciding whether to award costs under subsection (1)…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.

  1. [10]
    In view of those provisions, the question is not simply whether it is in the interests of justice to award costs, but whether it is in the interests of justice to depart from the usual position that each party bears its own costs.[4] 
  2. [11]
    The very notion of a “no costs” jurisdiction envisages that a successful outcome, of itself, will not be sufficient to entitle a party to costs.  It follows that a decision to award costs in the interests of justice must be based on factors in addition to success in the litigation. This is in contrast to the relative strengths of each party’s claim, which is a factor the tribunal may consider.[5] 
  3. [12]
    The focus therefore is not only on whether the applicant for costs was successful in the proceedings but rather on the likelihood of that outcome based on the relative strengths of each party’s claim.

Consideration

  1. [13]
    There was no evidence that the respondent had unnecessarily disadvantaged the applicant. The QBCC had not failed to comply with a tribunal order or direction in the matter or attend a mediation or hearing. It had not caused an adjournment or attempted to deceive the applicant or the tribunal. Further, there was no evidence that the QBCC had vexatiously conducted the proceeding or in any other way unnecessarily disadvantaged the applicant.[6]
  2. [14]
    The nature of the matter was relatively straightforward, involving a leaking toilet. The dispute involved whether the leak was caused by defective work by the builder. The fact that the relevant QBCC Act and Rectification policy were not the current editions does not make the matter complex.  The relevant Act and policy were both readily accessible on the internet.
  3. [15]
    The matter was not one where the relative strengths of the claims were so disparate that it was a factor supporting the making of a costs order.
  4. [16]
    The applicant referred to the fact that English was not the first language of the sole director of the applicant. While this may have meant the applicant preferred to have legal representation that is not a sufficient reason in all of the circumstances for a costs order to be made against the respondent.
  5. [17]
    Finally, the applicant claimed the QBCC had unfairly targeted it by issuing multiple directions to it in respect of a number of properties over a relatively short period. While that it is true, the other directions were not baseless: one was confirmed on review while the other was the subject of a settlement agreement reached at a compulsory conference. The matter confirmed on review was heard directly following the matter to which this costs application relates. The QBCC, however, have not claimed costs in respect of the review application in which it was successful.
  6. [18]
    Taking all of these factors into account, I am not of the view that the interests of justice require the making of a costs order in favour of the applicant.
  7. [19]
    Accordingly, the application for costs is dismissed. Each party is to bear its own costs.

Footnotes

[1]Application for miscellaneous matters dated 16 June 2016 at [96].

[2]Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 193.

[3]Queensland Building and Construction Act 1991 (Qld), s 77(3)(h).

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

[5]QCAT Act, s 102(3)(c).

[6]QCAT, s 48(1).

Close

Editorial Notes

  • Published Case Name:

    Goldfield Projects Pty Ltd v Queensland Building and Construction Commission (No 2)

  • Shortened Case Name:

    Goldfield Projects Pty Ltd v Queensland Building and Construction Commission (No 2)

  • MNC:

    [2016] QCAT 495

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • Date:

    14 Dec 2016

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Knight v F. P. Special Assets Ltd (1992) 174 CLR 178
2 citations
Jump To
Cite 1 - (1992) 174 CLR 178
Cite 2 - (1992) 174 CLR 178
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
2 citations
Jump To
Cite 1 - [2010] QCAT 412
Cite 2 - [2010] QCAT 412

Cases Citing

Case NameFull CitationFrequency
Independent Assessor v FJS (No 2) [2023] QCAT 3532 citations
1

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