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- Unreported Judgment
Macdonald v Queensland Building and Construction Commission QCAT 128
Macdonald v Queensland Building and Construction Commission  QCAT 128
Queensland Building and Construction Commission
General administrative review matters
3 March 2017
28 April 2017
ADMINISTRATIVE LAW – ADMISTRATIVE TRIBUNALS –QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – costs- where applicant was successful in a claim made against the QBCC in respect of a refusal to pay a claim for rectification work without the written approval by the QBCC- where application for costs.
Queensland Civil and Administrative Tribunal Act 2009 ss 100, 102.
Denmac Homes (Qld) Pty Ltd v QBSA  QCAT 331
Ascot v Nursing and Midwifery Board of Australia  QCAT 364
McEwen v Barker Builders Pty Ltd  QCAT 49
Queensland building and Construction Commission
represented by Michael Macdonald
represented by Kristie Joyce, in house Senior Lawyer QBCC
REASONS FOR DECISION
- By a decision delivered on the 25th of November 2016 I made orders allowing an application by Mr Macdonald and ordered the QBCC to pay to him the sum of $7,737.00. I allowed the parties to file any submissions as to costs.
- Both parties have filed submissions on costs.
- Mr Macdonald contends that he should have costs in the sum of $529.40 being made up of filing fees of $147.50, fees associated with service of the application of $76.90 and further filing fees of $305.00.
- In his written submissions Mr Macdonald gives the history associated with the applications filed in QCAT.
- After contacting QBCC and through their own internal review Mr Macdonald was informed by QBCC that he should lodge a dispute with QCAT. He did that and QCAT found in his favour. That order was an order against the builder in the sum of $7,737.00 plus costs of $147.50.
- After that determination was made on the third of March 2015 Mr Macdonald lodged a complaint form with QBCC seeking reimbursement of the amount ordered by QCAT.
- On 13 April 2015 an internal review officer within the QBCC wrote to Mr Macdonald and after advising that his request for a review regarding a ‘declinature’ (sic) of an insurance claim was premature because a decision had not been made, said, ‘once your legal rights have been exhausted you may reapply for reconsideration of insurance entitlement under the Statutory Insurance Scheme’.
- On 30 April 2015 Mr Macdonald sought to enforce the amount awarded as a judgement debt in the Holland Park Magistrates Court.
- The builder became a bankrupt on the twenty third of July 2015.
- On 8 October 2015 an insurance officer within QBCC wholly disallowed an insurance claim by Mr Macdonald with respect to the alleged defective work.
- On 13 October 2015 Mr Macdonald made a review application about the decision to disallow the claim.
- On 3 February 2016 after a review the QBCC disallowed the insurance claim under the Statutory Insurance Scheme in whole.
- Mr Macdonald sough a review in QCAT. On the decision to wholly disallow the insurance claim he succeeded.
- QBCC in written submissions opposes of Mr Macdonald’s claim for costs. QBCC submits that the circumstances of the case fall short of pointing so compellingly to a costs award such as to overcome the strong contract-indication against an award of cost.
- It submits that the application for an order for costs in the Magistrates Court Proceedings and subsequent enforcements proceedings should not be made because:
- (a)no power is conferred on the Tribunal to make costs orders and proceedings in other jurisdictions by the QCAT Act or any enabling Act;
- (b)the respondent was not a party to the proceedings in the Magistrates Court. No authority has been located to the effect that there is power to award costs against a non-party and proceedings from other jurisdictions; and
- (c)any claim for these costs amounts to a claim for damages pursuant to some cause of action which has not been pleaded by the applicant and the Tribunal has no power to hear and determine such a dispute.
- As I understand the claim by Mr Macdonald, it is not for a costs order in the Magistrates Court Proceedings. Although attachments A and C to Mr Macdonald’s submissions are Queensland Court official receipts and have the filing in the Magistrates Court the filing was in respect of QCAT’s minor civil dispute BDL180-14 and a non-minor civil dispute. Neither of those are in the Magistrates Court jurisdiction. Rather they are costs of filing the two applications in QCAT.
- Costs in this Tribunal are governed by chapter 2, part 2, division 6 of the Queensland Civil and Administration Act 2009 (‘the QCAT Act’).
- 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 parties own cost for the proceeding”.
- 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 on another party to the proceeding if the Tribunal considers the interest of justice require it to make the order”.
- Section 102(3) provides:
“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 proceedings;
- (d)for the review of a reviewal decision –
- (i)whether the Applicant was afforded natural justice by the decision maker for the decision; and
- (ii)whether the Applicant generally 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”.
- QBCC submissions point out that section 102(3)(a) refers to section 48(1) of the QCAT Act, which in turn deals with vacation, noncompliance with orders, nonattendance without reasonable cause and causing an adjournment or attempting to deceive another party or the Tribunal or not complying with the Act or enabling Act or Rules.
- As was said in Denmac Homes (Qld) Pty Ltd v QBSA the starting point for any application for costs is section 100 of the QCAT Act.
- In Ascot v Nursing and Midwifery Board of Australia it was said:
“The public policy intent of the provisions in the QCAT Act is plain. The Tribunal was established as a no cost jurisdiction. That may be departed from where the interest of justice require it. The considerations identified in section 102(3) are not grounds for rewarding costs. They are factors that may be taken into account in determining whether, in a particular case, the interest of justice require the Tribunal to make a costs order”.
- In McEwen v Barker Builders Pty Ltd  QCAT 49 it was held that:
“The language of section 100 plainly indicates that the legislature has turned its face against awards of cost in this Tribunal. The question that will usually arise in each case in which costs are sought is, then, whether circumstances relevant to the discretion inherent in the phrase “the interest of justice” have arisen; and whether or not they point to a costs award in sufficiently compelling way to overcome the statutory hurdle”.
- QBCC submits that the circumstances of this case falls far short of pointing so compellingly to a costs award such as to overcome the strong contra indication against such an award it submits that it was both appropriate and necessary for it to test the case.
- It also submits that where there are different views it cannot possibly be said that it is not in the interest of justice for there to be a hearing to decide the matter.
- In my view that is a too simplistic assertion. If for example the case was such that there was no reasonable prospect of a differing view succeeding that may well be important consideration in determining whether or not the interest of justice required a costs order.
- QBCC also submits that “the subsequent acceptance of the applicants evidence at hearing does not mean the statutory obligations on the respondent should be compromised due to a fear of adverse costs orders”.
- In my view, that is not something that is being asserted by the Applicant nor is it, in my view, an irrelevant consideration here. QBCC submits that it has not acted in a way that disadvantaged the Applicant. It might be thought that the advice given to the Applicant to pursue all possible legal avenues in the circumstance was disadvantaging to the Applicant. However the applicant is not making such a submission but rather seeks only the filing and serving costs associated with QCATs process. I have already noted the nature of the First Application that was an application against the builder for the costs of rectification. That Application was on the basis of advice provided by an employee of QBCC I note that it was subsequent to the order made by QCAT that the builder was declared bankrupt. That was no fault of QBCC.
- QBCC submitted that the Tribunal in a proceeding of this nature steps into the shoes of the respondent as a decision maker. It submits that the Tribunal must act in accordance with the objects of the QBCC Act as set out in section 3 of the QBCC Act which includes “to regulate the building industry –
- (i)to ensure the maintenance of proper standards in the industry; and
- (ii)to achieve a reasonable balance between the interest of building contractors and consumers.”
- In my view, that is not a relevant submission in the consideration of an application concerning costs.
- The QBCC submits that in order to achieve a reasonable balance between the applicant and building contractors the evidence heard during the hearing was required to be tested by the Tribunal. In my view that is not a correct assertion.
- QBCC points out that during the hearing the applicant produced further information which the Tribunal heard. That is, in my view, correct.
- In my reasons I stated
“In my view there is now evidence of the state of works at the time of engaging the new builder. The evidence is that the structure was built to the dimensions in the Newman Williams plans without appropriate tie-downs, with footings at 600mm deep without bracing and without lintels as specified in the design studio plans.”
- The Respondent submits that in circumstances where further evidence was filed in the hearing of the matter and where there were differing views it could not possibly be said that it is not in the interest of justice to be a hearing to decide the matter. That may be so but the point I am to determine is whether it is in the interest of justice to make a costs award.
- In deference to section 102(3) of the QCAT Act the QBCC submits that it has not acted in a way that unnecessarily caused disadvantage to the Applicant, it has not failed to comply with Tribunal directions, it has not asked for an adjournment and it has not mislead another party. Further it submits this was not a case where one party’s case was obviously stronger than the other and the matter of the outcome could not have been “predicted with any reasonable certainty” and is well short of being a “misconceived” or vexatious proceeding.
- I accept those submissions.
- I am unable to conclude in all of the circumstances that the interests of justice require the Tribunal to make an order that the costs sought be paid by the QBCC.
- The application for costs is dismissed.
- Published Case Name:
Michael Macdonald v Queensland Building and Construction Commission
- Shortened Case Name:
Macdonald v Queensland Building and Construction Commission
 QCAT 128
28 Apr 2017