Cowen v Queensland Building and Construction Commission
[2018] QCAT 385
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- Unreported Judgment
- Cowen v Queensland Building and Construction Commission[2018] QCAT 385
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Cowen v Queensland Building and Construction Commission[2018] QCAT 385
Cowen v Queensland Building and Construction Commission[2018] QCAT 385
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: | Cowen & Anor v Queensland Building and Construction Commission & Anor [2018] QCAT 385 |
PARTIES: | PETER COWEN JAN COWEN (applicants) |
| v |
| QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (first respondent) HINTERLAND CONSTRUCTIONS PTY LTD (second respondent) |
APPLICATION NO/S: | GAR044-15; GAR113-16 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 7 November 2018 |
HEARING DATE: | 4 June 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Member Browne |
ORDERS: | Each party is to bear its own costs in the proceeding GAR044-15 and GAR113-16. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where applicants seek an order for their costs payable by the first respondent – where first respondent has duty to assist the tribunal – where s 100 and s 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) applies – whether the interests of justice require a costs order to be made Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 Cowen & Anor v Queensland Building and Construction Commission & Anor [2017] QCAT 416 Douglass v Hastie Building Group Pty Ltd [2010] QCAT 353 Lyons v Queensland Building and Construction Commission & Dreamstarter Pty Ltd (in liquidation) [2016] QCAT 218 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 Ltd & Anor v Paans [2005] QCA 111 |
APPEARANCES & REPRESENTATION: |
|
Applicants: | P Somers, instructed by Bennett & Philp Lawyers |
First Respondent: | R Ensbey, solicitor of Gadens Solicitors |
Second Respondent: | No appearance |
REASONS FOR DECISION
- [1]Peter Cowen and Jan Cowen seek an order for their costs in relation to proceedings GAR044-15 and GAR113-16 to be assessed on the District Court Scale of Costs on the standard basis, unless otherwise agreed.
- [2]Under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act), each party to a proceeding is to bear their own costs of the proceeding. The tribunal may make an order requiring one 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]
- [3]Section 102(3) of the QCAT Act sets out a number of factors to which the tribunal may have regard in considering whether to make an order in respect of costs: whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding; the nature and complexity of the dispute; the relative strengths of the claims made by each party to the proceeding; whether the applicant genuinely attempted to enable and help the decision maker to make the decision on the merits; and the financial circumstances of the parties to the proceeding.
- [4]In this matter, the Cowens only seek an order for their costs payable by the Commission. In addressing the relevant factors to be considered under s 102(3) of the QCAT Act, the Cowens say that the Commission was: partisan towards the second respondent builder, unsuccessful in arguing that the contract was not properly terminated under the Insurance Policy; and amongst other things, the Commission made no concessions in the Cowens favour. The Cowens submit that:
- (a)the Commission’s expert witness conceded a number of defects relevant to the review proceeding in GAR113-16 that involved a consideration of a number of items of building work;
- (b)the proceedings were made more complex and took longer to be heard because of the joinder of the second respondent builder who was unrepresented in the proceeding;
- (c)the proceedings involved complex questions of contract law and the consideration of building defects;
- (d)in relation to the merits of the claims raised in proceeding GAR044-15, the second respondent’s unlawful suspension was clear from the commencement of the proceeding and, amongst other things, the Commission has refused to consider the material that paints a clear picture of the second respondent’s failure to remedy breach, or repudiation, entitling the Cowens to validly terminate; and
- (e)the Cowens did assist the decision maker in that Mr Cowen made himself available to the Commission to answer any questions and to permit them to inspect the property.
- (a)
- [5]Finally, the Cowens say that they have been put to a significant financial burden in bringing the proceedings, on which they succeeded. The Cowens say that at the hearing of this matter they were a retired husband and wife who wanted to have their home completed. They paid the premium on the Home Warranty Insurance Scheme, they claimed on that policy and that claim was rejected. The Cowens say that they have now succeeded in having that rejection overturned and have been put to a significant financial burden in achieving that outcome.
- [6]The Commission opposes the application for costs.[2] The Commission says that the circumstances are not such that the interests of justice require the Tribunal to make the order sought by the Cowens and the appropriate order is that each party bears their own costs.[3] The Commission says that both proceedings were strongly contested by the Cowens as the applicants and the builder as the second respondent. The Commission rejects the claim that it was partisan towards the second respondent and that it advocated a case against the Cowens in favour of the second respondent. The Commission says, amongst other things, that the evidence from the second respondent builder and its witnesses was relevant in assisting the Tribunal to arrive at the correct and preferable decision.[4]
What is the Tribunal’s power to award costs?
- [7]The power to award costs under the QCAT Act involves an exercise of a broad discretionary power that is to be construed according to its ordinary and plain meaning.[5]
- [8]In an earlier decision of this Tribunal, Justice Wilson said that the Court of Appeal decision in Tamawood Ltd & Anor v Paans[6] provides guidance about the circumstances in which it may be in the interests of justice for this tribunal to award costs against parties.[7] In Tamawood, Keane JA said that the power of a court or tribunal to award costs to a party is now the creature of statute that 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.[8] Keane JA also said 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.[9] The relevant extracts from Tamawood’s case are set out as follows (footnotes omitted):
…In this regard, 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. In the performance of this task, observations of the courts in relation to the operation of other statutory regimes relating to costs may afford general assistance but they cannot be allowed to distract attention from the terms of the particular statute in question.
…
There is a clear distinction, in terms of the interest of achieving justice, between the mere fact of having representation and the fact of having reasonably obtained that representation because of the complexity of the case. In the absence of countervailing considerations, where a party has reasonably incurred the cost of legal representation, and has been successful before the Tribunal, it could not rationally be said to be in the interests of justice to allow that success to be eroded by requiring that party to bear the costs of the representation which was reasonably necessary to achieve that outcome….[10]
- [9]In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)[11] the Tribunal said that in determining whether to make an order for costs the circumstances relevant to the discretion contained in s 102 of the QCAT Act will usually require the Tribunal to address whether those circumstances are so compelling that they overcome the strong contra-indication against costs orders in s 100 of the QCAT Act. Justice Wilson said:
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.[12]
- [10]In Stuart v Queensland Building and Construction Commission[13] the Appeal Tribunal, in considering the power to award costs, said that it is necessary to weigh relevant factors against the starting position that each party bear their own costs. The Appeal Tribunal said that the weight of such factors must be compelling for the starting position to be overcome.[14] The relevant extract from Stuart is as follows:
We accept that it is necessary to consider the factors referred to in section 102(3) of the QCAT Act, to the extent they are relevant to a particular case, to determine if the interests of justice point to a costs award.
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.[15]
- [11]Turning now to the question of costs in this matter, I find that the starting point with respect to costs orders in this Tribunal and the power to award costs is contained in s 100 and s 102 of the QCAT Act. In determining whether an order for costs should be made, I am required to exercise a broad discretionary power in considering all of the circumstances before me including the matters set out under s 102 of the QCAT. The relevant circumstances of the case before me must be compelling for the starting position to be overcome such that the interests of justice require a costs order to be made in the matter.
Does the interests of justice require a costs order to be made in this matter?
- [12]For reasons set out below, I am not satisfied that an order for costs in favour of the Cowens should be made in this matter. I have carefully considered all of the submissions and relevant material relied upon by the Cowens in support of their application for costs.[16] I have also considered the oral submissions made by Mr Somers of Counsel on behalf of the Cowens at the hearing. For completeness, I have addressed the relevant matters raised by the Cowens in support of their application for costs as follows:
The Commission’s conduct in the proceeding
- [13]The Cowens say that the Commission was partisan towards the second respondent builder because it undertook lengthy cross-examination of the Cowens’ lay witnesses and experts; and in its written submissions advocated a case against the Cowens and in favour of the second respondent builder.[17] The Cowens submit, amongst other things, that the Commission unsuccessfully advanced all possible arguments to say that the contract was not properly terminate under the Insurance Policy.[18] Further, the Cowens submit that the Commission made no concessions in the Cowens’ favour, the Commission’s expert made a number of concessions in respect of defects and the proceedings were complex and took longer to be heard by reason of the joinder of the second respondent builder.[19]
- [14]The question of whether the Commission has conducted itself in a certain way in the proceeding is clearly relevant to the question of costs and more importantly for the purposes of s 102(3) of the QCAT Act is relevant to the consideration of the ‘interests of justice’. Section 102(3)(a) of the QCAT Act provides that whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding including as mentioned in s 48(1)(a) to (g), may be relevant in deciding whether to award costs.
- [15]I am not satisfied having considered all of the submissions before me that the Commission has behaved in a way that unnecessarily disadvantaged the Cowens in the proceedings. More importantly, I do not accept the Cowens’ submission that the Commission was partisan towards the second respondent builder.
- [16]It is non-contentious that the proceeding was lengthy and the Tribunal was required to determine complex factual and legal issues. The Cowens and the Commission were legally represented in the proceedings. The Tribunal was assisted at the hearing by both the Cowens and the first respondent’s legal representatives. I accept the Commission’s submission that because the Cowens were legally represented throughout the hearing they, as submitted by the Commission, ‘had the protection of both their barrister and the learned Tribunal Member’ in respect of any questions put to Mr Cowen and the Cowen’s witnesses including their experts. It was therefore open to the Cowens’ legal representative during the hearing to raise with the Tribunal any concerns about the Commission’s questioning of the Cowens’ witnesses.
- [17]I accept the Cowens’ submission that the cross-examination of the Cowen’s witnesses by the Commission’s legal representative was, as stated by the Cowens, ‘significant and lengthy’.[20] I also accept the Commission’s submission, however, that there were many contested factual matters as between the Cowens as the applicants in the proceedings and the builder as the second respondent. I accept the Commission’s submission that because there were many contested factual matters relevant to the review proceedings, it was important that in assisting the Tribunal to come to the correct and preferable decision the Commission, in discharging its duty to assist, was required to properly test the evidence by asking all of the witnesses questions relevant to the matters in dispute.
- [18]The evidence given in both proceedings GAR044-15 and GAR113-16 took 13 days. This is because there were many contested factual and legal issues that had to be decided by the Tribunal. The expert witnesses gave concurrent evidence in the hearing and in giving their respective evidence the exert witnesses were required to respond to questions asked about a particular item of building work by the Cowens’ legal representative, the Commission’s legal representatives and the second respondent’s representative.
- [19]The Tribunal was required to make many findings in GAR044-15 about the conduct of the contracting parties and the alleged interference with the performance of the works by the builder and the Cowens. Further, there were many disputed factual issues that ultimately turned on the oral evidence given by the relevant witnesses under cross-examination. For example, the Tribunal accepted the builder’s evidence that boarding was placed over the doors and windows for safety and protection in accordance with its obligations as principal contractor under the contract.[21] The Tribunal ultimately found, however, in preferring Mr Cowen’s evidence, that amongst other things, the Cowens did not interfere with the performance of the works and workplace health and safety. It was entirely appropriate for the Commission to properly test the evidence given by the Cowens and the builder’s witnesses where such factual matters were contested and directly relevant to the issues to be determined by the Tribunal.
- [20]I do not accept that the Commission was partisan towards the second respondent builder by, as submitted by the Cowens, advancing all possible arguments to say the contract was not properly terminated under the Insurance Policy. The Commission’s written submissions identified all of the relevant competing submissions and contested factual matters to be determined. I accept the Commission’s submission that in its written submissions filed at the conclusion of the hearing in GAR044-15, the Commission expressly submitted that it was open on the facts for the Tribunal to decide that the second respondent builder repudiated the contract by its conduct. I also accept the Commission’s submission that it was appropriate for it, in its duty to assist the Tribunal, to address in detail the relevant considerations that might be advanced by the second respondent builder in circumstances were the builder was self-represented and the Cowens were legally represented in the hearing.
- [21]In determining the issues in GAR113-16, the Tribunal was required to make findings about certain items of work performed by the builder including whether or not the work was defective or incomplete after considering all of the evidence including the exert evidence. I accept that the Commission’s witness Mr Pratt made concessions in the hearing when giving evidence about the alleged defective items of building work. I do not accept, however, that the conduct of Mr Pratt in making some concessions about whether items of building work are defective is reflective of the Commission behaving in a way that unnecessarily disadvantaged the Cowens in the proceeding. The parties’ respective expert witnesses gave concurrent evidence in the hearing and there were concessions made by all of the expert witnesses including the Cowens’ expert witness Mr Morse. Further, the duty of an expert witness in a proceeding is to the Tribunal not to the party who is responsible for paying the expert’s fees to prepare the report or give evidence in the hearing.[22] The Commission also has a duty to assist the Tribunal to arrive at the correct and preferable decision in the proceedings. This duty includes testing the evidence of expert witnesses in the hearing so that all relevant matters can be identified and properly considered.
- [22]I do not accept the Cowens’ submission that had the Commission not joined the second respondent builder in the proceedings, it is likely that the hearing would have taken significantly less time and expense. The issues in GAR044-15 and GAR113-16 were contested by both the Cowens and the second respondent builder. The builder was in a position at the hearing to present evidence relevant to the contested factual and legal issues by reason of the joinder. Further, the Tribunal’s record of proceeding show that the decision to join the builder as the second respondent was made by the Tribunal in GAR044-15 and GAR113-16 as a decision by consent.[23]
- [23]There is a further issue relevant to the conduct of the Commission raised by the Cowens. The Cowens say that they were put to further expense by reason of the oral hearing in respect of the application for costs that was requested by the Commission. The Cowens say that the Commission’s request for a further oral hearing on the question of costs, as submitted, ‘continues its belligerent attitude to exhaust every possible avenue to defeat [the Cowens]’.[24]
- [24]I am not persuaded that by reason of the Commission’s request for an oral hearing the Commission has acted in a way that unnecessarily disadvantages the Cowens. The Cowens’ application for costs was accompanied by written submissions that raise many issues about the Tribunal’s findings at first instance and refer to relevant authorities in respect of making an order for costs in the Tribunal. The Tribunal found the oral hearing to be of assistance in determining the application for costs. This is because the Tribunal, having read the written submissions filed by both of the parties was in a position at the oral hearing to raise issues relevant to the discretion to award costs, with both Mr Somers appearing for the Cowens and Mr Ensbey appearing for the Commission. More importantly, the oral hearing presented an opportunity for the Tribunal to hear further oral submissions from both Mr Somers and Mr Ensbey in response to the issues raised by the Tribunal.
The nature and complexity of the dispute
- [25]I accept that it was appropriate for the parties to be legally represented in the proceedings that involved complex factual and legal issues. I am not satisfied, however, that the Tribunal being assisted by legal representation of two of the parties in the proceedings is in itself ‘so compelling’ to warrant an order for costs in the interests of justice. There were many contested factual matters that the Tribunal ultimately found proven having accepted in some instances the evidence given by a particular witness. The hearing process was the appropriate forum to test the evidence that was disputed by the parties including the expert witnesses’ evidence given in respect of certain items of building work.
The relative strengths of the case
- [26]I do not accept the Cowens’ submission that the builder’s unlawful suspension was clear from the commencement of the proceeding. Further, I do not accept that the Commission should have been able to determine that the contract had been properly terminated from the suspension issue alone. I accept the Commission’s submission that the Tribunal’s finding that the Cowens had properly terminated the contract was based on an assessment of the conduct of the parties.[25]
- [27]Although the Cowens were ultimately successful in GAR044-15 in relation to answering the contractual matters relevant to the decision to decline a claim for non-completion under the Insurance Policy, there were a number of findings made by the Tribunal that required cross-examination of witnesses so that the evidence could be properly tested. Further, there were a number of items of building work relevant to GAR113-16 that were not argued by the Cowens in their final written submissions as being defective items of building work that were live issues at the hearing. There were also a number of items of building work that were included in the Cowens final written submissions that the Tribunal found were items of building work that fell outside of the Scott Schedule and do not form part of the review proceedings because the parties have not been given an opportunity to present evidence and respond to the issues in relation to those items.
- [28]I accept the Commission’s submission that in acting in its role to assist the Tribunal, jurisdictional issues were raised in the proceedings about a number of items of building work that the Cowens included in the Scott Schedule that did not form part of the review proceeding. The approach taken by the Commission in identifying those items of building work as not being part of the review proceeding did save the Tribunal some hearing time. This is because the jurisdictional issue having been raised at an early stage of the proceeding enabled the Tribunal to determine it as a preliminary point after hearing submissions from all of the parties.
The Cowens’ assistance to the decision maker
- [29]The Cowens say that assistance was given to the decision maker in that Mr Cowen made himself available to the Commission to answer any questions and to permit them to inspect the property on numerous occasions. The Cowens say that there was no suggestion that Mr Cowen prohibited the Commission from reaching the correct and preferable decision.[26]
- [30]The Commission in response says that the conduct of the Cowens in failing to unequivocally permit the Commission to access the site to rectify defects identified by the Commission did not assist the Commission in carrying out its statutory functions and resulted in an unfair outcome for the builder and ultimately resulted in the parties having to incur substantial hearing time in relation to these items.[27]
- [31]I do not accept the Commission’s submission that the Cowens’ conduct has contributed to the parties having to incur substantial hearing time. The issues to be considered in this matter were contested by both parties and the witnesses giving evidence for the respective parties including the expert witnesses were critical to the issues and greatly assisted the Tribunal in exercising its review powers to arrive at the correct and preferable decision.
- [32]I am not persuaded, however, that in considering the matters under s 102(d) of the QCAT Act, the Cowens have genuinely attempted to enable and help the Commission decision maker to make the decision on the merits. In determining the issues relevant to GAR113-16, the Tribunal found Mr Cowen’s evidence about allowing access to the builder to be ‘unequivocal’.[28] The Tribunal ultimately found that for some items of building work the builder should be given an opportunity to attend to rectification of the work that was found to be defective based on the evidence before the Tribunal.[29]
The financial circumstances of the parties
- [33]I accept that the Cowens are retirees and the matter the subject of the proceedings concerned their family home. I accept that the Cowens have incurred legal expenses in relation to the proceedings. I do not accept, however, that the Commission should be ordered to pay the Cowens costs because as submitted by the Cowens, there would be ‘no financial hardship to the [the Commission] should a costs order be made’.[30]
- [34]The Commission is not an individual nor a private corporate entity but rather a statutorily constituted government body funded by, amongst other things, fees paid by licensees. The Commission also receives money in the form of premiums for the completion of any insurable building work. The Commission, in discharging its statutory functions, is still accountable for any money spent from the ‘public purse’. There is no evidence before me as to the Commission’s current financial position to support the Cowen’s submission that there would be no financial hardship to the Commission if it were ordered to pay their costs. The Cowens have failed to convince me that by reason of the Commission having access to money in the form of fees paid by licensees, there would be no financial hardship to the Commission should a costs order be made.
- [35]I accept the Commission’s submission that the nature of the decisions being reviewed is not such that it is amenable to being resolved by way of offers of compromise, particularly in circumstances where the second respondent builder disputed that the Cowens had properly terminated the contract. In this matter there were not only many disputed factual matters relevant to the issue of termination of the contract but also many disputed items of building work that required the Tribunal to make findings having heard from the expert witnesses.
Anything else the Tribunal considers relevant
- [36]The Cowens rely on an earlier decision of this Tribunal in which costs were awarded to the applicant where it successfully reviewed the Commission’s decision to refuse the applicant’s claim on the home warranty scheme. In Lyons v Queensland Building and Construction Commission & Dreamstarter Pty Ltd (in liquidation)[31] the Tribunal found that the applicant was denied natural justice because the Commission did not give the applicant an opportunity to respond to facts and material relied upon by it in making its decision.[32]
- [37]In Lyons, the Tribunal found that the applicant has carried enormous costs fixed at $212,67.40 for more than five years.[33] In addition to those costs, the Tribunal found that the applicant has suffered and continues to suffer rental losses in the amount of $118,650.00.[34] The Tribunal found that the cost of all the proceedings and the cost of completing and rectifying the contract works has taken a significant financial toll on the applicant.[35] Further, the Tribunal found that the ‘costs are extraordinarily high for any person to bear’.[36] The Tribunal ultimately found that Mr Lyon’s financial circumstances weigh in favour of a costs order to ‘prevent the unfairness of being far worse off for successfully pursuing his legal entitlements, than if he had done nothing’.
- [38]The Cowens also rely on the Tribunal’s decision in Douglass v Hastie Building Group Pty Ltd[37] that considered the impact of legal representation in the context of costs. In Douglass the Tribunal found that it is not in the interests of justice to have an order for compensation negated by the costs of obtaining that compensation.[38] Further, the Tribunal found that it has an obligation to ensure that the conduct of the proceedings observes the principles of natural justice. The Tribunal explained this statement to mean that ‘any resource imbalance’ between the parties will be a factor in the Tribunal’s consideration of whether the conduct of the proceedings does comply with the principles of natural justice.[39]
- [39]I am not satisfied that Lyons is apposite to the circumstances in this matter and the considerations that arise in determining the costs application. In Lyons the Tribunal found that the applicant was denied natural justice. More importantly, the applicant had carried his costs fixed in the amount of $212,67.40 for more than five years. In Lyons the applicant also had rental losses.
- [40]In this matter GAR044-15 was adjourned for a further hearing by the consent of the parties. More importantly, the parties agreed that GAR044-15 should be heard together with GAR113-16.[40] Unlike Lyons, that was as observed by the Tribunal to be a proceeding that continued for more than five years, both proceedings in this matter were determined by the Tribunal within a few months after the parties filed their written submissions.
- [41]In Lyons, the legal costs were considerable and fixed in the amount of $212,67.40 and the applicant had rental losses. In this matter the Cowens continued to live in their house during the completion of the building work. Although there is no evidence before me as to the Cowens’ legal costs incurred in this matter, I accept that the Cowen’s legal costs would be significant given that the hearing proceeded over 13 days and there were a number of expert witnesses who inspected the building work and gave concurrent evidence at the hearing. I also accept that the value of the works to be rectified is significant based on the report prepared by Sergon Quantity Surveyors.[41] I also accept that the Cowens have been put to significant inconvenience by reason of the incomplete and defective building work to their home. I am not satisfied, however, that the Cowens’ costs incurred in this matter justify the exercise of a discretion to award costs in their favour in circumstances where there were many contested factual and legal matters and the Commission has not, as found by me, conducted itself in a way that unnecessarily disadvantages the Cowens.
Conclusion
- [42]In this matter, both the Cowens and the Commission were legally represented. Both the Cowens and the Commission have been put to expense by reason of the proceedings including the complexity of the matter and the number of hearing days. Although the Cowens were ultimately successful in the review proceeding in GAR044-15, that outcome was arrived at by the Tribunal having performed its statutory function to arrive at the correct and preferable decision, after hearing the evidence from witnesses. This required the Tribunal to make findings about the many contested factual and legal issues advanced by both the Cowens, the Commission and the second respondent builder. The Tribunal made its findings in GAR044-15 after hearing the oral evidence of lay and expert witnesses given during cross-examination.
- [43]In proceeding GAR113-16 there were many disputed items of building work. The Tribunal in exercising its statutory function to arrive at the correct and preferable decision made its findings after hearing the oral evidence of lay and expert witnesses given during cross-examination. Some of the defective items of building work were returned to the Commission for reconsideration on the basis that the builder had not been given an opportunity to attend to rectification of the work.
- [44]I am not satisfied that the Cowens were the successful party in the proceedings. Further, that the Commission was partisan towards the second respondent builder and that there would be no financial hardship to the Commission should a costs order be made. I have carefully considered all of the submissions and material relevant to the Cowens’ application for costs. I am not satisfied that in all of the circumstances the interests of justice favour the award of costs in the Cowens favour. The order is that each party is to bear its own costs in proceeding GAR044-15 and GAR113-16.
Footnotes
[1] QCAT Act, s 102.
[2] First respondent’s submissions in response to applicants’ submissions as to costs dated 20 February 2018. See also First respondent’s further submissions as to costs as directed by the Tribunal on 4 June 2018 and the email received from Gadens Solicitors dated 29 June 2018.
[3] Ibid.
[4] Ibid.
[5] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, [4].
[6] [2005] QCA 111.
[7] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, [21].
[8] Tamawood, [23].
[9] Tamawood, [33].
[10] Ibid, [23], [33].
[11] [2010] QCAT 412.
[12] Ibid, [29].
[13] [2016] QCATA 135.
[14] Ibid, [17]-[18].
[15] Stuart, [17]-[18].
[16] Applicant’s outline of submission in reply filed on 20 February 2018, Applicant’s reply submissions on costs filed 8 May 2018, Applicant’s further submissions on costs filed 4 June 2018, Affidavit of Spencer Slasberg sworn 4 June 2018 together with attachment marked “SRS-1” and the application for miscellaneous matters filed on 13 July 2018.
[17] Applicant’s outline of submission in reply filed on 20 February 2018.
[18] Ibid.
[19] Ibid.
[20] Applicant’s outline of submission in reply filed on 20 February 2018, 2.
[21] Tribunal’s reasons, [56].
[22] QCAT Practice Direction No 4 of 2009.
[23] Tribunal decision dated 3 June 2015 in GAR044-15 and on 14 September 2016 in GAR113-16.
[24] Applicant’s reply submissions on costs filed on 8 May 2018.
[25] First respondent’s submissions in response to applicant’s submissions as to costs dated 20 February 2018 filed 5 April 2018.
[26] Applicant’s outline of submission in reply filed on 20 February 2018, [19]-[20].
[27] First respondent’s submissions in response to applicant’s submissions as to costs dated 20 February 2018 filed 5 April 2018, [31].
[28] Reasons, [182].
[29] Ibid, [252].
[30] Applicant’s outline of submission in reply filed on 20 February 2018, 4.
[31] [2016] QCAT 218.
[32] Ibid, [105].
[33] Ibid, [107].
[34] Ibid.
[35] Ibid, [108].
[36] Ibid, [109].
[37] [2010] QCAT 353.
[38] Ibid, [5].
[39] Douglass, [6].
[40] Tribunal Directions dated 9 February 2016, 4 May 2016, 27 June 2016 and 14 September 2016.
[41] Affidavit of Spencer Slasberg sworn 4 June 2018 together with attachment marked “SRS-1” and the application for miscellaneous matters filed on 13 July 2018