Cantamessa v Queensland Building and Construction Commission (No 2)
[2021] QCAT 213
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- Cantamessa v Queensland Building and Construction Commission (No 2)[2021] QCAT 213
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Cantamessa v Queensland Building and Construction Commission (No 2)[2021] QCAT 213
Cantamessa v Queensland Building and Construction Commission (No 2)[2021] QCAT 213
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Cantamessa v Queensland Building and Construction Commission (No 2) [2021] QCAT 213 |
PARTIES: | TYRON GUISEPPI CANTAMESSA (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) |
APPLICATION NO: | APL265-19 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 23 February 2021 |
HEARING DATE: | 4 February 2021 and by subsequently provided written material from both parties. |
HEARD AT: | Brisbane |
DECISION OF: | Member Roney QC |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – procedure – costs – Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102(3), – discretion to award costs in administrative review matters to a successful Applicant – whether prima facie position in s 100 should be displaced and costs ordered against unsuccessful respondent under s 102 – building work – direction to rectify – residential property with defective works – costs of applications to review decisions which are initially resisted then conceded. Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 20, s 21, s 100, s 102, s 121, s 142 Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 77 Barry Pitt Constructions Pty Ltd v Smith & Anor [2014] QCATA 339 Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Fuge v Queensland Building and Construction Commission [2014] QCAT 383 Jarvis v Queensland Building and Construction Commission [2015] QCATA 18 McEwen v Barker Builders Pty Ltd [2010] QCATA 49 Ollier & Glubb v Kuhnemann [2015] QCATA 112 Omae v Queensland Building Services Authority (No 2) [2012] QCAT 151 Queensland All Codes Racing Industry Board v Abbott (No. 2) [2016] QCATA 49 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Ricchetti v Lanbuilt Ply Ltd [2011] QCATA 266 Richards & Anor v Queensland Building and Construction Commission & Anor (No 2) [2019] QCAT 372 Stuart v Queensland Building and Construction Commission [2016] QCATA 135 Till v Logan City Council (No. 2) [2020] QCATA 11 |
APPEARANCES & REPRESENTATION: |
|
Applicant: | J Mould of Counsel, instructed by Mahoneys |
Respondent: | S Hedger solicitor instructed by HWL Ebsworth Lawyers |
REASONS FOR DECISION
- [1]In February 2014, the Applicant entered into a QBCC contract with Oliver Sabu and Rasmi Nair (‘the Homeowners’) to carry out an extension and renovations to their existing dwelling in Mackay. The works were 'building works' within the meaning of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). The works commenced around 29 April 2014 and under the contract, the original date for practical completion was some 30 weeks from the date on which the works commenced. Later it was agreed that the dwelling was to be completed by the end of business on 31 July 2015, but it was not. On 10 August 2015, the Applicant was advised by the Homeowners’ solicitors that they had elected to terminate the Contract.
- [2]The Applicant was paid a total of $331,500 by the Homeowners under the contract, being approximately 85% of the total contract price. Between 31 August 2015 and 14 March 2017 there were a series of inspections of the property and notices issued by QBCC to the Applicant. On 31 August 2015 following a complaint by the Homeowners, Mr Cherry, on behalf of QBCC conducted an inspection of the works at the property. In attendance were the Applicant, the Homeowners and Mr Malcolm Hull from Master Builders. This Report dealt with 213 complaint items.
- [3]On 8 September 2015, QBCC issued the Applicant with an Initial Non-Completion Inspection Report. The Report described the relevant defect complained of as ‘Home Incomplete’. On 28 October 2015 following another inspection by Mr Cherry, QBCC issued the Applicant with an Amended Initial Non-Completion Inspection Report. On 3 November 2015, QBCC issued the Applicant with a Final Initial Non-Completion Inspection Report.
- [4]On 29 September 2016, QBCC issued the Applicant with a Direction to Rectify and/or Complete No. 42342 pursuant to s 72(2) of the QBCC Act requiring 14 items of defective or incomplete building work to be rectified. On 25 January 2017, QBCC issued a Review Notice and Technical Advice outlining the results of an Adapted Internal Review Application. The Internal Review decided inter alia that the Contract was not properly terminated by the Homeowners at the default of the Applicant on 10 August 2015, that certain items of the Direction to Rectify were defective and a Direction to Rectify should be issued.
- [5]On 30 January 2017, QBCC issued the Applicant with a Direction to Rectify and/or Complete requiring 11 items of defective or incomplete building work to be rectified. This Final Direction was received by the Applicant on 7 February 2017. The Applicant wrote to the Homeowners on 15 February 2017 requesting the release of all keys to the Property so that he could attend to the items of defective and incomplete work in the Final Direction but he was not permitted to do so for several reasons.
- [6]On 14 March 2017, the Applicant applied to the Tribunal for a review of the Respondent's decision made on 30 January 2017 to give a Direction to Rectify and /or Complete residential construction work pursuant to s 72(2) of the QBCC Act. The hearing of Application to review took place in Mackay on 2 and 3 August 2018. The parties agreed that the issues to be determined below were whether the disputed 11 items of the works directed were defective and it was unfair to direct the Applicant to rectify the building work in the circumstances. The Applicant argued that the conduct of the homeowners in imposing additional conditions on the Applicant with respect to any rectification work was entirely unreasonable in the circumstances because the Applicant wished to identify the defects before rectifying them. He claimed that he did not suspend the works. The homeowners had changed the locks of the premises and took possession of the site on 10 August 2015. On 17 February 2017 the homeowners refused to give the keys to the Applicant, and instead the homeowners ultimately permitted access but subject to strict conditions.
- [7]On 5 September 2019, the learned Member delivered his decision in respect of the Application to review and after providing written reasons ordered that the decision of the QBCC made on 30 January 2017 to issue the Direction to Rectify is set aside and that “there is no order as to costs”. The reasons identified that one of the grounds for the review was that the “Applicant has been denied natural justice and procedural fairness by the QBCC and accordingly the decision made by the QBCC to issue the direction was invalid and the Direction is void”. Had that issue been upheld, it would have been relevant to any consideration as to what should occur to costs. As shall be identified later in these reasons the learned Member’s findings did not reach a conclusion on that issue.
- [8]On 4 October 2019 the Applicant filed an application for leave to appeal or appeal the costs order i.e. that there be no order as to costs, and by implication that the Applicant not be awarded costs. He seeks his costs of the review application, which have been identified in the affidavit of his solicitor Mr Kelly as $39,541.35 for solicitors’ costs and $14,500 for counsel’s fees, in total some $54,000 excluding the costs of this appeal.
- [9]Since this an appeal of a costs order, leave is necessary pursuant to section 142(3)(a)(iii) of the QCAT Act. It is accepted that leave to appeal will usually only be granted where there is a reasonable argument that the decision was attended by error, and an appeal is necessary to correct a substantial injustice caused by that error. Where a question of law is identified that is of general or public importance, that may be a matter of significance in favour of granting leave.
- [10]The Applicant submits that the learned Member erred at law by failing to give any reasons for there to be no order in relation to costs. Pursuant to section 121 of the QCAT Act, reasons for final decisions are required to be given. The Appeal Tribunal has recognised that reasons for final decisions must...contain three essential elements: appropriate and sufficient reference to the relevant evidence; the material findings of fact that were made (and the reasons for making those findings); and, the applicable law and the reasons for applying it. The crucial requirement is for the Tribunal to give reasons for awarding, or for that matter not awarding costs which disclose what has been taken into account in a way that means that any error is revealed: see Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [47]. See also Ricchetti v Lanbuilt Ply Ltd [2011] QCATA 266 at [3]; Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303 at [44], Barry Pitt Constructions Pty Ltd v Smith & Anor [2014] QCATA 339; Ollier & Glubb v Kuhnemann [2015] QCATA 112; Jarvis v Queensland Building and Construction Commission [2015] QCATA 18.
- [11]As the written submissions for the Applicant provided to the member below reveal , the Applicant asked for his costs on numerous bases. They were that there were numerous examples of the Respondent clearly conducting itself in a way that unnecessarily disadvantaged the Applicant, both before these proceedings were brought and during the proceedings themselves. It was argued that the proceeding had been complex, not only because of the technical matters involved but the legal principles which necessarily had to be raised to address the disadvantage the Respondent created. It was argued that the Respondent could never have been regarded as in a position of strength in relation to its claim because of the unbalanced approach to the litigation. It was also argued that the Applicant had been disqualified from holding his builders’ licence because of financial constraints. He is privately represented and his legal representatives are charging substantial fees. It was argued that the Respondent is an agency of the Queensland State Government. As a Model Litigant it must not seek to take advantage of an impecunious opponent. It was argued that the Respondent has breached natural justice leading up to and during these proceedings. Finally, it was argued that the Respondent put the Applicant to great expense in instructing his legal representatives to peruse 662 pages of the purported expert statement of Simon Jaremus and prepare cross-examination based upon that statement, then at the hearing withdrawing him as an expert altogether.
- [12]Given the scope of those submissions it is unfortunate that the application for costs was summarily dismissed without stated reasons being given.
- [13]As the Respondent here properly conceded, the reasons of the learned Member in this case fail to identify any of the three essential elements as referred to earlier in these reasons as to why the broad general discretion to award costs was refused. On that basis it is appropriate to proceed on the basis that this Tribunal will consider the bases for which costs might properly have been awarded to the Applicant, and provide the reasons in support or adverse to that proposition. Unfortunately, this Tribunal is at a significant disadvantage to the Tribunal at first instance, not having conducted the hearing, having to rely on the transcript below only and not even having the benefit of the file of relevant material that was before the member in making the original decision.
The current statutory position – s 100 and s 102 of the QCAT Act
- [14]The statutory position is that set out in s 100 and s 102 of the QCAT Act. They provide 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) 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) 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.
(3) 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 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.
- [15]In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 the President Justice Wilson was considering the costs question where the proceeding had been commenced when one statutory costs regime applied, but which concluded under the current scheme under the QCAT Act. He said:
21. The respondent relies on the decision of the Court of Appeal in Tamawood Ltd & Anor v Paans [2005] QCA 111, a case decided under the costs provision of the now repealed Commercial and Consumer Tribunal Act 2003 (CCT Act). Although those provisions are not analogous to the equivalent provisions under the QCAT Act, the principles found in Tamawood provide guidance about the circumstances in which it may be in the interests of justice for this Tribunal to award costs against parties.
22. In Tamawood, Ms Paans commenced proceedings in the CCT for damages against Tamawood Ltd and another party. The two matters were heard together and Ms Paans was awarded monetary damages. The CCT, however, refused to order costs in her favour.
23. All parties then sought leave to appeal to the District Court, where the appeals from the respondents were refused, but Ms Paans was awarded her costs in the proceedings. The respondents than sought leave to appeal that costs decision to the Court of Appeal, contending that the decision of the District Court was based on an erroneous construction of ss 70 and 71 of the CCT Act. Those provisions state:
70 Purposes of div 7
The main purpose of this division is to have parties pay their own costs unless the interests of justice require otherwise.
71 Costs
…
(4) In deciding whether to award costs, and the amount of the costs, the Tribunal may have regard to the following—
(a) the outcome of the proceeding;
(b) the conduct of the parties to the proceeding before and during the proceeding;
(c) the nature and complexity of the proceeding;
(d) the relative strengths of the claims made by each of the parties to the proceeding;
(e) any contravention of an Act by a party to the proceeding;
(f) for a proceeding to which a State agency is a party, whether the other party to the proceeding was afforded natural justice by the State agency;
(g) anything else the Tribunal considers relevant.
Examples of paragraph (g)—
The Tribunal may consider whether a party to a proceeding is acting in a way that unreasonably disadvantages another party to the proceeding.
The Tribunal may consider whether the proceeding, or a part of the proceeding, has been frivolous or vexatious.
(5) A party to a proceeding is not entitled to costs merely because—
(a) the party was the beneficiary of an order of the Tribunal; or
(b) the party was legally represented at the proceeding.
24. The similar QCAT Act provision to s 70 is, it might be said, in terms that more plainly indicate that the legislature had turned its face against awards of costs in this Tribunal: s 100 says that ‘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’.
25. In considering ss 70 and 71 Keane JA (as his Honour then was) referred, however, to two matters relevant here. First, his Honour held that the CCT provisions negated the traditional proposition that costs should prima facie follow the event (unless of course that the Tribunal considers that another order is more appropriate) and that the nature and extent of the power to award costs could only be discerned by close consideration of the terms of the statute which created and prescribed the occasions and conditions for its exercise 7. Sections 100 and 102 of the QCAT Act attract the operation of the same principles.
26. Second, Keane JA was of the view 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.
27. That conclusion must, here, be considered in the light of the difference between s 70 of the CCT Act and s 100 of the QCAT Act. Section 70 speaks of a ‘main purpose’, but s 100 mandates that parties shall bear their own costs. Section 70 contains, within itself, a reference to the condition or circumstance in which the main purpose may be subsumed to the interests of justice; s 100 has no such proviso, although it appears later, in s 102(1).
28. Under that subsection QCAT has a discretion to make a costs order ‘…if the Tribunal considers the interests of justice require it…’. Section 102(3) says that, in deciding whether to award costs, the Tribunal may have regard to matters not dissimilar to those set out in s 71 of the CCT Act including, in particular for present purposes, the nature and complexity of the dispute and the relative strength of each party’s claims.
29. 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.
30. I am satisfied that is the case here. As the voluminous supporting material indicated, the application brought in Ralacom’s name involved a complex history of disputes between it, and the body corporate. Urgent injunctive relief was sought, as was relief under the BCCMA, which on any view involved some complexity, and urgency, and warranted the instruction of solicitors and counsel by the body corporate. The standing of the company was unclear, and confused by the applicant’s failure to inform this Tribunal about the real outcome of the Supreme Court Proceedings.
- [16]Later, in McEwen v Barker Builders Pty Ltd [2010] QCATA 49 the President, Justice Wilson said in an Appeal heard on the papers:
[13] As to costs, the starting point in this Tribunal is that each party must bear its own: QCAT Act, s 100. The statutory presumption may be displaced if the Tribunal considers it in the interests of justice to order a party to pay all or part of the costs of another party: s 102(1). The phrase “in the interests of justice” 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.
[14] In determining whether it is in the interests of justice to award costs against another party, the Tribunal may have regard to the nature and complexity of the dispute; the relative strengths of the claims made by each of the parties; and, whether a party has acted in a way that unnecessarily disadvantages another party: QCAT Act, s 102(3).
…
[17] The language of s 100 plainly indicates that the legislature has turned its face against awards of costs 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 interests of justice’ have arisen; and, whether or not they point to a costs award in a sufficiently compelling way to overcome the statutory hurdle.
- [17]In Ascot v Nursing & Midwifery Board of Australia, [2010] QCAT 364 , Kingham DCJ, the Deputy President, held that : “The public policy intent of the provisions in the QCAT Act is plain. The tribunal was established as a no costs jurisdiction. That may be departed from where the interests of justice require it. The considerations identified in s 102(3) are not grounds for awarding costs. They are factors that may be taken into account in determining whether, in a particular case, the interests of justice require the tribunal to make a costs order”.
- [18]I respectfully agree with the approach that the President has taken in Ralacom and the McEwen decisions and that of the Deputy President in Ascot v Nursing & Midwifery Board of Australia. That means that the relevant task is to proceed on the basis that there is a statutory presumption that parties will bear their own costs in a proceeding for the Tribunal, including those in the review jurisdiction of the Tribunal, but that presumption may be displaced if the Tribunal considers it in the interests of justice to order a party to pay some or all of the costs of another.
- [19]At first the Applicant sought to submit that the Tribunal had jurisdiction to award costs under s 77(3)(h) of the QBCC Act. The jurisdiction given to the Tribunal to award costs under that section relates to a "building dispute" only. "Building dispute" is defined in Schedule 2 of the QBCC Act to mean "a domestic building dispute", "a minor commercial building dispute" or "a major commercial building dispute". This was a proceeding for the review of a reviewable decision, not a "building dispute". During the hearing of this application for leave, Counsel for the Applicant withdrew reliance on that provision, leaving the issue as one concerning the proper application of s 100 and s 102 of the QCAT Act.
- [20]It is pertinent to observe that under the QCAT Act s 20 and s 21, the proceeding before the Tribunal below was a merits review of an administrative decision made by the Respondent, brought by the Applicant. In such a proceeding, the Tribunal is to stand in the shoes of the Respondent as the decision-maker to arrive at the "correct and preferable" decision, and must hear and decide the review by way of a "fresh hearing on the merits". As the decision-maker, the Respondent must simply use its "best endeavours to help the Tribunal so that it can make its decision". Under the QBCC Act, the Commission has a dual function in that in administrating the Act it is to protect the public interest and also the interests of building contractors.
- [21]As was observed by Senior Member Oliver in Fuge v Queensland Building and Construction Commission [2014] QCAT 383 at [28]:
…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.
- [22]Giving due weight to those observations in Fuge, in Richards & Anor v Queensland Building and Construction Commission & Anor (No 2) [2019] QCAT 372 costs were awarded against the Commission where homeowners (as distinct from the builder in the present case) were not afforded natural justice when QBCC made its first decision. It was also held that QBCC’s efforts in progressing the matter appropriately through internal review and reconsideration periods were less than they should have been in the circumstances and, as a result, unnecessarily disadvantaged the applicants. Whilst being mindful of the statement in Fuge about the QBCC not being made reticent about discharging its obligations for fear of adverse cost orders, the aged applicants were held to have been put to considerable expense in having their claim to insurance cover accepted, as they were entitled to, under the policy and incurred and were awarded costs of $40,000 out of an amount of $82,317.98 actually incurred because the applicants were obliged to retain legal representation to have their rights under the insurance policy vindicated.
- [23]The fact that review applications also invoke different considerations to those in an ordinary inter partes dispute, may be seen from the fact that there are special considerations to be considered under s 102 of the QCAT Act when deciding whether to award costs in such cases. Where the proceeding is of a kind such as that here, relevant matters include whether the Applicant was afforded natural justice by the decision maker, and whether the Applicant genuinely attempted to enable and help the decision maker to make the decision on the merits.
The Tribunal’s reasons for its decision
- [24]The Tribunal below made the following findings as to whether it was unfair to direct the Applicant to rectify the building works at [147]-[162]:
[147] These proceedings came about following a unilateral decision by a homeowner to take possession of his property after a dispute with his builder.
[148] This dispute occurred at a time when the builder was approaching the completion of the contract for the building. There are various matters in dispute as to the events that occurred at that time.
[149] It is clear that the Applicant sought payment of the amount of $58,500 on the basis that the property had reached Practical Completion. There is disagreement between the parties around whether the contract was repudiated by the homeowner and that the repudiation was accepted by the Applicant.
[150] There is an issue as to whether the homeowner was being unreasonable in placing conditions on the Applicant’s access to the property to undertake any rectification work.
[151] The discretionary power to issue a Direction to Rectify derives from s 72 of the QBCC Act that provides that:…if the Commission is of the opinion that building work is defective or incomplete, the Commission may direct the person who carried out the building work to rectify the building work within the period stated in the Direction.
[152] Further, s 72(14) [sic] provides that:The Commission is not required to give a Direction under this section to a person who carried out building work for the rectification of the building work if the Commission is satisfied that, in the circumstances, it would be unfair to the person to give the direction.
[153] In considering whether it would, in the circumstances of this case, be unfair to issue a direction, it is relevant to consider the Objects of the legislation. The Objects, relevantly, include ‘to achieve a reasonable balance between the interests of building contractors and consumers’.
[154] In the Tribunal’s view, it was unreasonable to issue a Direction to Rectify because
(a) The Applicant’s final tax invoice remains unpaid;
(b) The Applicant was not informed of the inspections and was not given an opportunity to attend them.
(c) There was considerable uncertainty surrounding the approach taken by the QBCC.
[155] On 30 January 2017, QBCC issued the Applicant with a Direction to Rectify and/or Complete No. 0101527 requiring 11 items of defective or incomplete building work to be rectified. This Final Direction was received by the Applicant on 7 February 2017.
[156] Following receipt of the Final Direction, the Applicant wrote to the Homeowner on 15 February 2017, requesting the release of all keys to the Property so that he could attend to the items of defective and incomplete work in the Final Direction.
[157] On 7 March 2017, the Applicant filed an Application in the Tribunal seeking a review of the decision by the QBCC to issue Direction to Rectify and/or Complete, No 0101527 on 3 grounds:
(a) The Applicant has been denied natural justice and procedural fairness by the QBCC and accordingly the decision made by the QBCC to issue the direction was inappropriate;
(b) The decision to issue the Direction was unfair, having regard to the amount owing to the Applicant; and
(c) The works are not defective works.
[158] There was a clear disconnect between QBCC agreeing that the building was 85% completed and the amount subsequently identified to undertake rectification and complete the works between $300,000 and $500,000.
[159] In the Tribunal’s view the decision by the QBCC to issue a Direction was unfair because of the failure by QBCC to clearly identify the purpose of the inspections by Sergon to assist QBCC with its assessment of the homeowner’s claim under the Statutory Insurance Scheme rather than to prepare a Scope of Works to rectify the alleged defective work and to decide if the Applicant ought to be directed to rectify the alleged defective building work.
[160] In the Tribunal’s view, even if it was to find that the work was defective and that, therefore, the pre-conditions to the exercise of the discretion to issue the Direction had been met, it would [be] unfair to issue a Direction in these circumstances.
[161] While an important object of the legislation is to maintain building standards, an equally important objective is to achieve a reasonable balance between the interests of building contractors and consumers.
[162] In the Tribunal’s view, the objective of the maintenance of building standards is not compromised by not issuing a Direction in the circumstances of this dispute. Conversely, issuing a Direction would not be striking a reasonable balance between the Homeowner and the Applicant.
- [25]It may be seen from the findings above, that the findings go tantalisingly close to reaching a conclusion about whether the Applicant has been denied natural justice and procedural fairness by the QBCC but fail to do so.
The Applicant’s arguments and the relevant considerations under s 102
- [26]The Applicant submits that leave to appeal should be granted because, he contends, “this is a case where a government authority has simply not abided by fundamental legal principles in the prosecution of a citizen who has incurred significant cost to defend himself" and the decision below “highlighted that the Respondent must adhere to the legislative requirements, common law, principles of natural justice and principles of fairness that bind them instead of embarking on a cavalier approach in reckless disregard of its duty to the Tribunal, to its opponent and to the law in general" and the “Respondent has breached natural justice".
- [27]Section 100 presumes that ordinarily each party to a proceeding would bear that party’s own costs, irrespective of the result. On that basis there ought be no order for costs unless the interests of justice ought lead to a different result.
- [28]The Applicant contends that the proceedings were complex, and the Applicant’s case was “strong” (even on what he submits was the scant evidence selected to be called by the Respondent) and “legal representation was required to achieve a just result especially given the Respondent was legally represented”.
- [29]The Applicant contends that the matter was extremely legally complex as well by virtue of the Applicant having to raise “additional various appropriate legal objections mostly arising from the Respondent’s conduct of the case” including what he says was a “breach of natural justice; a breach of the rule in Makita v. Sprowles; a breach of Model Litigant Principles; a breach of the QCAT Practice Direction incorporating Rule 428 UCPR; a breach of various provisions of the QCAT Act; a breach of QBCC policy considerations; repudiation; and the requisite burden of proof.” In that regard the issues he refers to I discuss below as contentions in support of the proposition that the Applicant was disadvantaged.
- [30]The Applicant submits that “To qualify as ‘complex’, an appeal should involve difficult or novel legal concepts or technical evidence that requires complex reasoning to enable the Tribunal to make a decision” and that is what occurred in the trial. He cites Queensland All Codes Racing Industry Board v Abbott (No. 2) [2016] QCATA 49 at [13] for that proposition. The quote just referenced concerns appeals not trial hearings. I am not convinced that it has application generally.
- [31]The issues, both of fact, which arose under the applications had some complexity and took two days to be heard but they were not, in my view, particularly or unusually complex. I note that Counsel was briefed for the Applicant and the Respondent’s advocacy was handled by a solicitor both here and below. The issues of law which arose under the applications such as they were, were not in my view particularly complex. I do not consider that the fact, if it be one that the Applicant had to raise “additional various appropriate legal objections mostly arising from the Respondent’s conduct of the case” made it particularly complex, particularly as he had experienced Counsel capable of dealing with them.
- [32]I agree with the proposition stated in Fuge at [21] that the mere fact that a matter was complex factually does not support an order for costs in favour of the applicant in any event.
- [33]The Applicant submits that the Respondent has acted in a way that has unnecessarily disadvantaged the Applicant. It refers in that regard to an alleged breach of Policy. It is submitted that according to the Rectification of Building Work Policy issued by the Queensland Building and Construction Board on 10 October 2014 the Respondent should only issue a Direction to Rectify for non-structural defects within 12 months of the building work being completed. He submits that the Applicant had a legitimate expectation that the Respondent would abide by its own policy and a failure to do so amounted to a breach of natural justice and unfairness.
- [34]There were no findings made by the member which amounted to a conclusion that there was any contravention of any such policy. In any event the reference to conduct that has unnecessarily disadvantaged the Applicant in s 102 is a reference to the way the proceeding has been conducted.
- [35]The Applicant also argued under this head that in this case there were no official statements obtained, nor testing of inconsistencies of any allegations obtained by the Respondent prior to the Direction to Rectify being issued. There were no findings made by the member which amounted to a conclusion that there was any such conduct but even were it true, those matters would not of themselves amount to unnecessarily disadvantaging the Applicant in the material sense.
- [36]The Applicant also argued under this head that by selecting experts which favoured the homeowners, the Respondent became a protagonist and adversary in the case in breach of the Hardiman principle. It weas argued that the Applicant could legitimately have expected the Respondent to make these investigations before issuing a Direction to Rectify and was unnecessarily disadvantaged by it not doing so, particularly as some experts had a very different point of view that militated against any Direction to Rectify issuing at all, or “in the draconian terms ultimately lodged”. There were no findings made by the member which amounted to a conclusion that there was any such conduct and it is not open to the Applicant to retry that issue here on appeal.
- [37]In Till v Logan City Council (No. 2) [2020] QCATA 11 this Tribunal observed, citing Pierpont v Zanetti & Ors [2012] QCAT 171 at [44], that the phrase ‘the proceeding’ referred to in section 102 refers to conduct in the current proceeding, not conduct which preceded it. It was held that:
[6] Any disadvantage must be ‘unnecessary’, as distinct from a disadvantage experienced in the usual course of litigation. Mere error by the Council and its representatives is not sufficient to establish unnecessary disadvantage to another party. Procedural irregularities and deficiencies are disadvantages experienced in the usual course of litigation. Rather, evidence of bad faith, misconduct or improper purpose is usually required.
[7] Nothing in Ms Till’s submissions shows any evidence of bad faith, misconduct or other improper purpose in the Council responding to her appeal, nor was the appeal proceeding necessitated by conduct meeting this threshold.
- [38]The Applicant also argued under this head that at the trial of the matter, the Respondent knew of circumstances surrounding the perceived bias of an expert Mr Jaremus, yet proceeded to obtain and serve upon the Applicant a voluminous statement from him and then sought to rely upon it until it was objected to. It was submitted that this unnecessarily disadvantaged the Applicant because his legal representatives were put to the significant expense of reading his statement and preparing its case in anticipation of it being admitted, which costs were ultimately thrown away.
- [39]In my view this circumstance does not provide a basis for an award of costs of the hearing below, by itself, or in conjunction with other matters. In any matter counsel might be expected to do work in preparation for a witness that for some reason or another does not come to be called, or changes their evidence.
- [40]The Applicant also argued under this head that the Respondent also failed to make available for cross-examination at trial, seven material witnesses in the dispute, despite refusing the Applicant’s request for an adjournment. They were not called as witnesses in the Respondent’s case. They were persons the Applicant wanted to question. As such, they might have been called in the Applicant’s case but were not.
- [41]This is an example of procedural irregularities and deficiencies which are disadvantages experienced in the usual course of litigation. In any event the component or value of that wasted work was not quantified. In the case of the witnesses not called to be cross examined, one suspects the failure shortened the trial rather than resulted in costs being incurred or wasted.
- [42]The Applicant also argued under this head that the Respondent failed to ensure that one of its experts clearly identify the facts/assumptions on which the opinion was based and adequately set out the analysis and reasoning employed in order that the conclusions were able to be properly understood. It was also complained that he was not made available for cross-examination and argued that the Applicant and the Tribunal were deprived of an important opportunity of testing the validity of process by which the opinion was formed.
- [43]In my view this is an example of procedural irregularities and deficiencies which are disadvantages experienced in the usual course of litigation and may have gone to merits issues or valid complaint about procedural fairness. In any event, again there were no findings made by the member which amounted to a conclusion that there was any such conduct and it is not open to the Applicant to retry that issue here on appeal.
- [44]The Applicant also argued under this head that he was unnecessarily disadvantaged because he was deprived of a fair hearing without being provided the opportunity to peruse documents which were the subject of an unresponsive call for them during the trial in order to ascertain whether it was beneficial for his case, or to avail the Tribunal of the opportunity to consider the material in flagrant breach of its duty of disclosure under s 21(2) of the QCAT Act. There were no findings made by the member which amounted to a conclusion that there was any such conduct and the transcript shows that when the call was made for the documents, which were mere notes or case comments a witness said were not relevant to the decision, the matter went no further than the Respondent’s solicitor indicating that they weren’t at Court and she would make some enquiries about them. The Respondent’s solicitor emailed the Applicant’s solicitor on 10 August 2018 in responding to the Applicant’s request for copies of the documents, saying “The hearing has concluded and no direction was made by the Tribunal for our client to provide any further material.” The latter proposition was a correct statement of fact.
- [45]The Applicant also argued under this head that he was unnecessarily disadvantaged because of a failure to have the Respondent’s experts abide by QCAT Practice Direction No. 4 of 2009 and Rule 428 of the Uniform Civil Procedure Rules 1999 (Qld) which it is argued require experts to state that the expert “has made all enquiries considered appropriate”. There were no findings made by the member which amounted to a conclusion that there was any such conduct. In any event that is a procedural irregularity that the member could deal with and the Applicant could clarify. There is nothing to suggest this non- compliance led to delay or additional expense.
- [46]The Applicant submits that the relative bargaining positions of the parties or positions of strength vis-a-vis each other were relevant considerations under section 102(3) of the QCAT Act. That may or may not matter in a given case depending on the precise circumstances. What is clearly relevant is the relative strengths of the claims made by each of the parties to the proceeding and how evident those strengths and weaknesses were or ought to have been.
- [47]It seems to me that the Respondent had an arguable case and although the Applicant was ultimately successful in having the Direction set aside, the learned Member did accept the Respondent's evidence that Items 3 and 9 of the Direction constituted defective work and only decided to set aside Items 3 and 9 of the Direction because of the learned Member's divergent view on whether it would be unfair.
- [48]The Applicant submits that the Respondent breached its obligation to provide natural justice leading up to and during the proceeding, which is a factor relevant to costs.
- [49]The Applicant accepts in relation to the exercise of the discretion for awarding costs, when considering whether there has been a denial of natural justice, that it is necessary to demonstrate the consequence or prejudice this has caused. This flows from what was said in Stuart v Queensland Building and Construction Commission [2016] QCATA 135 at [46].
- [50]The Applicant submits numerous examples of the Respondent breaching the rules of natural justice and the Model Litigant principles and largely if not entirely repeats the points set out above as evidencing disadvantage. The Applicant was unnecessarily disadvantaged thereby because he was deprived of a fair hearing without being provided the opportunity to peruse such material in order to ascertain whether it was beneficial for his case, or avail the Tribunal of the opportunity to consider the material in flagrant breach of the Respondent’s duty of disclosure.
- [51]On this issue the Applicant relies on a claimed refusal to grant the Applicant's requests for an extension of time to comply with the Direction as an example of the Respondent failing to afford natural justice to the Applicant. The evidence does not show a refusal by the Respondent to grant the Applicant's request for an extension of time.
- [52]On this issue, again there was no finding by the learned Member that the Respondent denied the Applicant natural justice either in the lead up to, or during, the proceeding. Even if there were conclusions open that there was any such conduct these were procedural irregularities that the member could deal with during the hearing if they mattered. There is nothing to suggest this non- compliance led to delay or additional expense.
- [53]Further on this issue the Applicant relies on a claimed refusal to concede an application for an adjournment. That was a matter for the Tribunal to decide and there is nothing to suggest that it was not reasonably and properly opposed by the Respondent.
- [54]Further on this issue the Applicant asserts that the Respondent failed to carry out adequate investigations prior to issuing the Direction and otherwise act in accordance with the Model Litigant Principles. Further, the Applicant submits that the evidence given by the Respondent's Mr Jonathon Pacey, Ms Tiffany Barber and Mr Greg Matthews demonstrates that they each "shirked" responsibility for carrying out adequate investigations.
- [55]The Applicant asserts the result is the Respondent did not carry out its functions appropriately, seemingly ignorant of its obligation to achieve a reasonable balance between the interests of the Applicant and those of the homeowners, constituting a breach of natural justice afforded to the Applicant. The consequences that flowed were reasonable and foreseeable: he submits that the Applicant incurred costs to respond to a Direction to Rectify that may not have issued in the first place if an informed decision had been made.
- [56]The Respondent submits that on the face of the record it is clear that each of these officers had separate and distinct roles in the giving of the Direction and the alleged 'shirking' was merely an acknowledgement by those officers of the limits of their respective roles.
- [57]On this issue, again there was no finding by the learned Member that the Respondent denied the Applicant natural justice in this way, or for that matter that the Respondent or its experts failed to carry out adequate investigations prior to issuing the Direction and otherwise failed to act in accordance with the Model Litigant Principles.
- [58]There are relevant considerations that relate to the financial circumstances of the parties. The Respondent does not dispute that the proceeding has likely had an impact on the Applicant's financial circumstances. The costs claimed do not seem to me to be unreasonable in terms of their quantum. There is no direct suggestion of impecuniosity by the Applicant nor any inability to pay. No question of costs eating into a compensation award arises for consideration here.
- [59]There is a document contained at page 353 of the Applicant's Material relied upon which is said to be demonstrative of a "financial predicament" on the part of the Applicant as at 11 October 2016.
- [60]The Respondent does not accept that the document contained at page 353 of the Applicant's Material to be Relied Upon is demonstrative of any "financial predicament" on the part of the Applicant as at 11 October 2016 as alleged. The Respondent submits that this document merely put the Applicant on notice that it had concerns the Applicant did not satisfy the Minimum Financial Requirements under the QBCC Act and requested that the Applicant provide it with financial records. I accept that this document is not evidence of the Applicant's financial circumstances at the relevant time.
- [61]The Applicant submits that the Respondent has sought to take advantage of an impecunious opponent. I accept that the Application to review was brought by the Applicant and it was the Applicant's choice to engage private legal representation, including Counsel, to represent him in the proceeding.
- [62]At paragraph 7.4(d) of the Applicant's Submissions, the Applicant submits that there is conduct of the Respondent since the Appeal Application was filed that demonstrates that this is a compelling case for which the Tribunal ought to have departed from its usual position that each party to the proceeding must bear its own costs of the proceeding. The events are referred to in paragraphs 9 and following of the affidavit of Mr Kelly and concern a posting on a credit history report that suggests that the Applicant owed a debt of some $217,314 to the Respondent. The suggestion made is that this entry was brought about by the Respondent, was false and affected the Applicant’s borrowing capacity and creditworthiness.
- [63]I accept that in this case it is inappropriate for this Tribunal to have regard to these matters in circumstances where these events allegedly occurred after the Decision was made and there is little by way of conclusive evidence about how the entry came to be made. On the material before me I am unable to conclude that it somehow reflects adversely on the Respondent and its handling of the application which preceded the relevant events affecting his credit history, although conceptually it might have been capable of reflecting on the bona fides of the Respondent and is not irrelevant.
- [64]In my view, the interests of justice, in the sense referenced in s 102 of the Act, do not require the making of a costs order here.
- [65]I therefore give leave to appeal because of the error of law in having failed to deliver reasons but dismiss the appeal against the decision to refuse costs.