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Bace Investments Pty Ltd t/as Stroud Homes Brisbane North v Queensland Building and Construction Commission[2018] QCAT 377

Bace Investments Pty Ltd t/as Stroud Homes Brisbane North v Queensland Building and Construction Commission[2018] QCAT 377

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Bace Investments Pty Ltd t/as Stroud Homes Brisbane North v Queensland Building and Construction Commission [2018] QCAT 377

PARTIES:

Bace Investments Pty Ltd t/as Stroud Homes Brisbane North

(applicant)

 

v

 

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO:

GAR334-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

Date of orders 24 August 2018

Reasons delivered 13 November 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

ORDERS:

The application for costs is dismissed.

CATCHWORDS:

DAMAGES – GENERAL PRINCIPLES – RECOVERY OF COSTS – circumstances in which costs order made in review proceedings – whether usual position that each party must bear own costs should be applied – whether appropriate in interests of justice to make a costs order

Queensland Building and Construction Commission Act 1991 (Qld), s 3

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 23, s 43(3), s 100, s 102

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

Fuge v Queensland Building and Construction Commission [2014] QCAT 383

Medical Board of Australia v Wong [2017] QCA 42

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

Stuart v Queensland Building and Construction Commission [2016] QCATA 135

Tamawood Limited v Paans [2005] 2 Qd R 101

REPRESENTATION:

 

Applicant:

B Watt, of Becker Watt Lawyers Pty Ltd

Respondent:

C Hill, Senior Lawyer of the Queensland Building and Construction Commission

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

Background

  1. [1]
    In 2016 the Applicant constructed a house for a property owner at Closeburn. In July 2017, following complaints made by the owner, the Respondent issued a direction to rectify in relation to specified items. Following an internal review undertaken at the request of the Applicant, on 23 October 2017 the Respondent confirmed the decision to rectify. By application filed in the Tribunal on 8 November 2017, the Applicant sought review of the Respondent’s internal review decision.
  2. [2]
    On 5 February 2018 the Respondent issued a scope of works, setting out the work required to comply with the direction to rectify specified in the internal review. An application to review the scope of works decision was filed in the Tribunal on 1 March 2018.
  3. [3]
    Following endeavours by the parties to resolve the matters, on 18 April 2018, pursuant to s 23 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the Act’), the Tribunal invited the Respondent to reconsider both decisions. On 16 May 2018, the Respondent advised that it had decided to withdraw both the internal review direction to rectify and the scope of works.
  4. [4]
    On 23 June 2018 the Applicant filed an application for costs. The application was determined on the papers, with written submissions filed by both parties. On 24 August 2018 the Tribunal dismissed that application. The Applicant has requested reasons for that decision. The reasons are set out below.

The legislative framework

  1. [5]
    Relevant provisions in relation to costs are set out in s 100 and s 102 of the Act. Those provisions are as follows:

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.

102 Costs against party in interests of justice

  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. (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.
  1. (3)
    In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
  1. (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);
  1. (b)
    the nature and complexity of the dispute the subject of the proceeding;
  1. (c)
    the relative strengths of the claims made by each of the parties to the proceeding;
  1. (d)
    for a proceeding for the review of a reviewable decision--
  1. (i)
    whether the applicant was afforded natural justice by the decision-maker for the decision; and
  1. (ii)
    whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
  1. (e)
    the financial circumstances of the parties to the proceeding;
  1. (f)
    anything else the tribunal considers relevant.
  1. [6]
    In Tamawood Limited v Paans,[1] Keane JA stated:

…it is clear that the power of a court or tribunal to award costs to a party is now the creature of statute. The nature and extent of that power can only be discerned by close consideration of the terms of the statute which creates the power and prescribes the occasions for, and conditions of, its exercise.

  1. [7]
    As is apparent from s 100 of the Act, the starting point is that each party must bear their own costs.[2]  That is consistent with the object set out at s 3(b) of the Act: ‘to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick’.
  2. [8]
    On the other hand, s 102 of the Act allows a cost order to be made where the ‘interests of justice’ so require. That term is not defined in the Act, but is to be construed according to its ordinary and plain meaning, conferring a broad discretionary power on the decision-maker.[3]  In making a determination in the interests of justice, s 102(3) of the Act lists several factors that ‘may’ be taken into account, including at s 102(3)(f) ‘anything else the tribunal considers relevant’. The factors listed in s 102(3) are not grounds for awarding costs, but rather are matters the tribunal may consider in deciding whether, in a particular case, the interests of justice require the tribunal to make a costs order.[4]
  3. [9]
    With reference to the factors listed in s 102(3), the Appeal Tribunal in Stuart v Queensland Building and Construction Commission  stated:[5]

Those considerations are largely in the nature of what may be regarded as ‘entitling’ or ‘disentitling’ factors. In the exercise of the discretion to award costs, it is necessary to weigh relevant factors against the starting position that each party bear their own costs. In view of the legislated shift in the starting position to that stated in section 100, the weight of such factors must be compelling for the starting position to be overcome.

  1. [10]
    Similarly, in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2),[6]  with reference to the phrase ‘interests of justice’ in s 102(3) of the Act, Wilson J stated that the question is whether circumstances “point so compellingly to a costs award that they overcome the strong contra-indication against cost orders in s 100”.[7]

Submissions of the parties

  1. [11]
    In support of an order for costs, the Applicant made five submissions, which are addressed in turn.

The complexity of the case

  1. [12]
    See s 102(3)(b) of the Act. The Applicant submitted that the complexity of the case was such that the engagement of legal representation was justified, as demonstrated by the Applicant’s successful application for leave to be legally represented. However, the only ‘complexity’ pointed to was the need for expert evidence and the need to present the case to the tribunal. Certainly, the issues do not appear to have been unduly complex and the need for some form of expert evidence is the norm in such cases. It was the Respondent’s submission that the circumstances of the case did not present as complex.
  2. [13]
    The giving of leave to be legally represented does not of itself indicate complexity. It is noted that the Respondent is a State agency and, in response to the application for legal representation, the Respondent stated that it had no objection to the Applicant being legally represented.[8] 

The Applicant was successful

  1. [14]
    It was submitted that the Applicant had been successful in having the direction to rectify and the scope of works withdrawn by the Respondent. As is noted above, success is not determinative and an award of costs to a successful party is the exception rather than the rule.
  2. [15]
    During the investigation of the home owner’s complaint, the Respondent’s building inspector concluded that the concrete slab was defective, causing a non-structural aesthetic defect on the finished surface and that there was non-compliance with the National Construction Code in relation to a patio. The Applicant did not dispute the defects and, indeed, rectified items other than the cracking in the slab. In relation to the latter, the Applicant offered to make rectification, but not in a manner satisfactory to the owners. In other words, this is not a case in which there was a finding on the evidence that the Applicant was not at fault and the work was of an appropriate standard. In terms of s 102(3)(c) of the Act, the relative strength of the claims made by each of the parties to the proceeding was not tested before the tribunal.

Appropriate rectification work

  1. [16]
    The Applicant submitted that its proposed rectification works were appropriate and that the scope of works was unsound and disproportionate. The Respondent submitted that on the basis of the available evidence different perspectives were open. Again, the difficulty is that the evidence was not tested before the Tribunal and all that remains is conflicting assertions.

Genuine attempts to assist

  1. [17]
    See s 102(3)(d) of the Act. It was submitted that the Applicant made genuine attempts to assist the Respondent during its investigations and that a large amount of information appears to have been ignored. No detail is provided as to that “large amount” of information, other than a brief reference to “the Commission’s own technical advice”. The Respondent submitted that the information and submissions provided by the Applicant were considered in detail and the fact that the determination was not at that time favourable to the Applicant does not justify a “baseless” allegation of denial of natural justice.

Other considerations

  1. [18]
    No submissions were made in relation to the financial circumstances of the parties: see s 102(3)(e) of the Act.
  2. [19]
    The Respondent submitted that it carried out its functions appropriately, careful to achieve a reasonable balance between the interests of the Applicant and those of the home owner, in accordance with the objects of the Queensland Building and Construction Commission Act 1991 (Qld).[9]
  3. [20]
    The role of the Queensland Building and Construction Commission as a regulator is a relevant factor to be taken into account in the exercise of the discretion. As noted in Fuge v Queensland Building and Construction Commission:[10]

I reiterate that under the QBCC Act, the Commission has a dual function in administrating the Act. That is, to protect the public interest and also the interests of building contractors. In doing so it must not be reticent in discharging its obligations for fear of adverse costs orders against it if it is unsuccessful in responding to an application for review of its decisions unless it can be demonstrated, there is some specific conduct on the part of the Commission, that would ‘so compellingly’ overcome the strong contra-indication against costs orders in s 100 of the QCAT Act.

  1. [21]
    It has not been demonstrated that the conduct of the Respondent was other than consistent with the performance of its statutory functions and with its obligations to the Tribunal.
  2. [22]
    In my view, in the circumstances of this case, the interests of justice do not justify a departure from the usual position that each party should bear their own costs.

Footnotes

[1]  [2005] 2 Qd R 101, 110 [23] (Keane JA).

[2]  See, Medical Board of Australia v Wong [2017] QCA 42 [37] (McMurdo J).

[3] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 [4]; Stuart v Queensland Building and Construction Commission [2016] QCATA 135 [9].

[4] Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 [9] (Kingham J).

[5]  [2016] QCATA 135 [18].

[6]  [2010] QCAT 412.

[7]  [2010] QCAT 412 [29].

[8]  See, s 43(3)(a) and (d) of the Act.

[9]  See s 3(a)(ii) of that Act.

[10]  [2014] QCAT 383 [28].

Close

Editorial Notes

  • Published Case Name:

    Bace Investments Pty Ltd t/as Stroud Homes Brisbane North v Queensland Building and Construction Commission

  • Shortened Case Name:

    Bace Investments Pty Ltd t/as Stroud Homes Brisbane North v Queensland Building and Construction Commission

  • MNC:

    [2018] QCAT 377

  • Court:

    QCAT

  • Judge(s):

    Senior Member Aughterson

  • Date:

    13 Nov 2018

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
Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364
2 citations
Jump To
Cite 1 - [2010] QCAT 364
Cite 2 - [2010] QCAT 364
Fuge v Queensland Building and Construction Commission [2014] QCAT 383
2 citations
Jump To
Cite 1 - [2014] QCAT 383
Cite 2 - [2014] QCAT 383
Medical Board of Australia v Wong [2017] QCA 42
2 citations
Jump To
Cite 1 - [2017] QCA 42
Cite 2 - [2017] QCA 42
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
4 citations
Jump To
Cite 1 - [2010] QCAT 412
Cite 2 - [2010] QCAT 412
Cite 3 - [2010] QCAT 412
Cite 4 - [2010] QCAT 412
Stuart v Queensland Building and Construction Commission [2016] QCATA 135
3 citations
Jump To
Cite 1 - [2016] QCATA 135
Cite 2 - [2016] QCATA 135
Cite 3 - [2016] QCATA 135
Tamawood Ltd v Paans[2005] 2 Qd R 101; [2005] QCA 111
2 citations
Jump To
Cite 1 - [2005] 2 Qd R 101
Cite 2 - [2005] 2 Qd R 101

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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