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Van Dorssen v Queensland Building and Construction Commission (No. 2)[2025] QCAT 140

Van Dorssen v Queensland Building and Construction Commission (No. 2)[2025] QCAT 140

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Van Dorssen & Ors v Queensland Building and Construction Commission (No. 2) [2025] QCAT 140

PARTIES:

Jill van dorssen

(first applicant)

david bruce van dorssen

(second applicant)

kylie jane houlihan

(third applicant)

carl dominic houlihan

(fourth applicant)

v

queensland building and construction commission

(respondent)

APPLICATION NO/S:

GAR382-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

14 April 2025

HEARING DATE:

12 September 2024

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

  1. The respondent pay the applicants’ costs of the proceeding on the standard basis on the District Court scale of costs applicable as assessed by an assessor nominated by and at the discretion of the Principal Registrar of the Tribunal on the request for a nomination by the applicants.
  2. The respondent pay the applicants’ costs so assessed within 14 days of assessment.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – application to review a decision disallowing a previously approved claim for payment under the statutory insurance scheme – where s 24AA Acts Interpretation Act 1954 (Qld) had no application there being a sufficient contrary intention against that – where the applicants had a strong case – where the dispute was complex – where other parties engaged legal representatives before the applicants responded by engaging their own legal representatives – where the interests of justice required an order for payment of the applicants’ costs

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

Cowen v Queensland Building and Construction Commission [2021] QCATA 103

Health Ombudsman v du Toit [2024] QCA 235

Marzini v Health Ombudsman (No 4) [2020] QCAT 365

Wardanski v Mawby (No 2) [2023] QSC 237

APPEARANCES & REPRESENTATION:

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

  1. [1]
    The applicants entered into a residential building contract with a contractor. The work was completed on 30 November 2011.
  2. [2]
    On 5 February 2019, the applicants complained to the Queensland Building and Construction Commission (‘QBCC’) about excessive slab moisture and efflorescence on brickwork.
  3. [3]
    QBCC issued a Direction to Rectify (‘DTR’) to the contractor. The contractor applied to the Tribunal to review the DTR in matter GAR171-18.
  4. [4]
    The applicants’ complaint was referred as a claim under the statutory insurance scheme. Expert reports were obtained. The claim was assessed and approved on 28 May 2019 and a scope of work to rectify the problems prepared.
  5. [5]
    On 28 June 2019, the Tribunal handed down its decision in GAR171-18, with the DTR being set aside.
  6. [6]
    On 17 July 2019, on the basis of the findings in GAR171-18, QBCC disallowed the insurance claim.
  7. [7]
    The applicants sought internal review of that decision but were unsuccessful. The applicants brought an application in the Tribunal for review of the decision to disallow the insurance claim, and following a hearing on 12 September 2024 the decision to disallow the insurance claim was set aside.
  8. [8]
    The parties were directed to file submissions about costs, including fixing costs. The applicants have applied for costs and made submissions and QBCC has responded.
  9. [9]
    The applicants seek an order for costs fixed at $150,000. QBCC submits there should be no order as to costs and the parties each bear their own, but if costs are ordered to be paid, the costs should be assessed and not fixed in the amount claimed by the applicants.

Costs in the Tribunal

  1. [10]
    The recent Court of Appeal decision of Health Ombudsman v du Toit [2024] QCA 235 (‘du Toit’) confirmed the reasoning in Marzini v Health Ombudsman (No 4) [2020] QCAT 365 (‘Marzini’) that the correct approach to the operation of the relevant cost provisions in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) is to answer the question, do the interests of justice require a costs order?
  2. [11]
    To that end section 102 of the QCAT Act directs attention to a number of matters which may be usefully considered.

The s 102(3) factors

Behaviour unnecessarily disadvantaging

  1. [12]
    The applicants maintain the conduct of QBCC in the action unnecessarily disadvantaged them. They say the decision maker failed to articulate the basis upon which the decision to approve the applicants’ claim under the statutory insurance was set aside; QBCC refused to agree to a list of issues in dispute prior to hearing despite repeated requests made by the applicants to narrow and agree on issues; QBCC then raised new issues during hearing which took the applicants by surprise and added to the applicants’ costs; and the proceeding was precipitated by QBCC’s failure to afford the applicants procedural fairness in the earlier proceeding GAR171-18 brought by the contractor.
  2. [13]
    QBCC refutes those claims.
  3. [14]
    Looking to the submissions by the applicants, it is not clear why it is claimed there was a failure of the decision maker to articulate the basis for reversing the insurance decision and how that disadvantaged them.
  4. [15]
    There was internal review of two decisions consequent on the Tribunal handing down its reasons for decision in GAR171-18. One was review of the decision to issue a DTR to the builder. The internal review decision made it clear that the decision to set aside the DTR was based on the Tribunal decision in GAR171-18.
  5. [16]
    The internal review decision noted the findings in GAR171-18, that the applicants actions or inactions were a significant contributing factor to the problems on site, and given that, considered in context of clause 7.4 of the insurance policy conditions,  QBCC determined that the claim under the insurance should not have been allowed. I found that there was no power to set aside the decision to pay out on the statutory insurance once made. Other than in the sense that that finding meant the internal review decision maker was wrong about power to revoke the award of insurance and proceedings were necessary in the Tribunal to correct the error, there is no basis to claim unnecessary disadvantage caused to the applicants.
  6. [17]
    I also note, according to the agreed chronology set out in the Hearing Book, on 17 July 2019 QBCC sent an email to the applicants through Mrs Van Dorssen attaching the GAR171-18 decision together with the reasons for decision and a letter advising that the applicants’ claim under the statutory insurance scheme was to be disallowed in full on the basis of the GAR171-18 decision.
  7. [18]
    Concerning the matter of the list of issues not agreed, the Tribunal directed the parties to prepare a hearing book.  The hearing book was required to include amongst other things a list of issues in dispute. That was to be filed not less than 14 days prior to hearing. The hearing book was filed on 4 September 2024 and the hearing took place on 12 September 2024, eight days later. Neither party complied with the requirement about filing “a list of issues” in dispute. The applicants could have included theirs but did not. It is not clear what exchange, if any, occurred between the parties about an agreed list of issues.
  8. [19]
    QBCC did raise new issues for the first time at hearing. I commented on that.[1] It is not clear that there was any significant disadvantage caused the applicants by their late introduction however. The limitation defences failed based on earlier decisions made by QBCC evidenced in documents already contained in the hearing book. The hearing proceeded as scheduled and indeed finished early. Given that, and absent explanation by the applicants, I do not see how the new issues added to their costs.
  9. [20]
    I am unable to conclude that the conduct of QBCC in the action unnecessarily disadvantaged the applicants.

Nature and complexity of the dispute

  1. [21]
    Then the applicants say, having regard to the nature and complexity of the dispute, it was appropriate that the applicants engage legal representation. That has meant however that they have incurred significant costs. It is in the interests of justice to award them their costs because failing that, their success in the action would be eroded.
  2. [22]
    In initial standard directions made 21 October 2019, QBCC was granted leave for in-house legal representation, subject to any objection raised by the applicants.
  3. [23]
    The applicants wrote to the Tribunal on 25 October 2019 to advise they had no objection to in-house legal representation for QBCC, however they would object to the builder, if the builder became involved, having legal representation. At that stage the builder was not a party to the proceeding. It is not clear whether QBCC were privy to that communication.
  4. [24]
    On 2 December 2019, QBCC applied for external legal representation on the grounds that the matter was likely to involve complex questions of law and fact associated with GAR171-18, the DTR decision, the Building Code of Australia, whether it would be unfair to issue a DTR to the contractor (in light of the GAR171-18 finding) and whether the applicants’ claim under the statutory insurance scheme ought be allowed either wholly or in part.
  5. [25]
    QBCC gave an undertaking not to apply for a costs order in the event the applicants’ review was unsuccessful unless the applicants conducted themselves in a manner found to be frivolous, vexatious or an abuse of process.
  6. [26]
    The applicants expressed concern about the request for private legal representation. Despite that both parties were given general leave to be represented on 31 January 2020.
  7. [27]
    QBCC then applied to have the builder joined to the action, not for the purpose of avoiding future multiple proceedings but to allow the affected parties to put all of the relevant facts before the Tribunal and to enable all the factual and legal issues in dispute between the affected parties to be finally determined.[2]
  8. [28]
    The applicants did not oppose the joinder but noted that they had requested QBCC apply to the Tribunal to join the applicants to the application for review brought by the contractor in matter GAR171-18, but that had not been done. The applicants were apparently ignorant of their right to apply independently of QBCC to be joined as an affected party in matter GAR171-18.
  9. [29]
    The builder was granted legal representation. It was not surprising therefore when, shortly after that, the applicants engaged their own legal representatives in June 2020.
  10. [30]
    Joinder of the builder with legal representation exposed the applicants to a costs award against them in favour of the builder. That put nearly at nought the undertaking given by QBCC not to seek a costs order against the applicants, given the builder would be under no such prohibition and limitation. Furthermore the builder had been successful in the GAR171-18 proceedings which QBCC had intimated in the application for leave for external legal representation would be raised once again in the within proceedings.
  11. [31]
    In Marzini one matter found to be relevant was the legislated right to have legal representation. Whilst there was no legislated right to legal representation for the applicants in the matter at hand, such as was the case in Marzini and du Toit, it should be recognised that the applicants would reasonably feel constrained to engage legal representation themselves in response.
  12. [32]
    This is a factor suggesting a costs order in favour of the applicants is required in the interests of justice.

Strength of the claims

  1. [33]
    The applicants submit the relative strength of the applicants claim favours an award of costs.
  2. [34]
    The applicants were clearly successful. The primary decision was based on established case law. The matter could have been resolved on the papers without the necessity of a hearing.
  3. [35]
    The hearing focused on what were in truth secondary issues, that is the experts joint expert report and the experts views about the effects of the crusher dust laid under the dwelling and outside the external walls (it was conceded by QBCC in closing submissions to have been laid by the builder, not the owners) and whether the owners contributed to the moisture problems by landscaping activities.
  4. [36]
    The answers to what I have described as the secondary issues were to be found in the experts’ report prepared 20 April 2023, more than 18 months prior to hearing. The experts simply clarified what they said there about the primary cause being the poor preparation of the ground immediately adjacent the walls at the time of construction and presumably as left at the completion of construction. It had nothing much to do with the layer of crusher dust around the dwelling or landscaping performed by the owners. At 2.22 of the Joint Report the experts had said:

2.22.1 Does it conform to AS2870-2011?[3]

The primary requirement of AS2870 is a fall away from the external walls in the first metre of 50mm. In the majority of locations on the subject site there is a concrete path adjacent to the first metre away from the external walls of the dwelling. Levels taken by NJA indicate that in multiple locations falls of 50mm in the first metre are not present. The experts note that in circumstances where the finished ground consists of a thick layer of crusher dust, the falls to the surface are not as relevant as they would normally be, as water will easily penetrate the surface of the ground and collect in the crusher dust. Where there are concrete pavements present, if the pavements have falls away from the dwelling, stormwater on the pavements will flow into the permeable finished ground at the edge of the pavements. In these circumstances what is critical is the ground surface below the crusher dust.

2.22.2 Is it equal to or more than that is required for good building practice and NCC requirements?

The falls to the pavements are less than good practice or the minimum requirements of AS2870 or the BCA.

        (emphasis added)

  1. [37]
    I therefore agree with the applicants that they had a much stronger case than QBCC and that should have been recognised after receipt of the joint experts report, at least with respect to running the secondary issues case. The hearing was unnecessary, a waste of resources and caused the applicants to incur significant legal expenses.
  2. [38]
    This conclusion supports a costs order being made.

Afforded natural justice

  1. [39]
    The applicants say this was a review of a reviewable decision and the applicants were not afforded natural justice by the decision maker for the decision.
  2. [40]
    The claim by the applicants here though looks to the earlier matter in the Tribunal, GAR171-18, not the present matter. I address the submission however.
  3. [41]
    The applicants say they were not afforded natural justice in the earlier proceeding. This appears to be (there is scant explanation about this in the applicants’ submissions) because QBCC did not join the applicants in that proceeding. As I have pointed out above, there was nothing stopping the applicants themselves applying to be joined to GAR171-18 as affected parties.
  4. [42]
    It is also somewhat ironic that it was the joinder of the builder in the matter at hand and following that the builder’s engagement of legal representation that finally triggered the applicants engaging legal representation and incurring large legal costs in the matter at hand.
  5. [43]
    I do not accept QBCC’s failure to join the applicants in GAR171-18 amounted to a breach of natural justice and it does not weigh against QBCC in the matter of costs in the present matter.

Financial position

  1. [44]
    There is no relevant information provided about the applicants financial position. That they are individuals and QBCC is a publicly funded body carries little weight as to whether or not there should be a cost decision against QBCC.

Other matters

  1. [45]
    I note the comments made by Judicial Member McGill SC in Manzini and Cowen v Queensland Building and Construction Commission [2021] QCATA 103[4] that though this was in form a review of an administrative decision, it also has, by analogy, a commercial element to it in so far as the applicants had an entitlement to be paid under the statutory insurance scheme and that that entitlement to payment was taken away by the decision of QBCC. It was not a common step to take, but furthering the analogy to commercial insurance claims, was something that might well be expected of a commercial insurer.
  2. [46]
    It is a circumstance which moves it a little away from other reviews of administrative decisions where QBCC as decision maker is simply acting as a regulator of the construction industry, balancing the interests of building contractors and building owners, and towards commercial litigation where cost based court orders prevail.

Determination

  1. [47]
    Taking these matters into account, do the interests of justice require an order for costs to be made, and if so, what order?
  2. [48]
    I conclude the answer is yes. As in Marzini, I determine that it would be unjust for the applicants’ success in the proceedings to be eroded by having to pay their own costs incurred in achieving that success.
  3. [49]
    The applicants’ legal costs were reasonably incurred and a response to QBCC applying for external legal representation after being granted internal legal representation and then QBCC joining the builder to the proceeding and the builder engaging its own legal representation.
  4. [50]
    The applicants had a strong case. There was little opposition raised by QBCC to the argument that there was no implied power granted QBCC to revoke its earlier decision allowing the insurance claim based on the applicable case law.
  5. [51]
    In so far as the hearing proceeded largely as an examination of the expert witnesses and their joint experts report, it was unnecessary. There was nothing said there that changed what the experts had already said in their joint report.

Fixing costs

  1. [52]
    The parties were directed to file submissions on costs and submissions on fixing costs. The applicants have done so and calculate their professional fees at $207,889.46 and disbursements an additional $29,721.56, a total of $237,611.02. They claim 60% of the professional fees and all the disbursements, rounding the amount down to $150,000 in total.
  2. [53]
    They refer to the matter of Wardanski v Mawby (No 2) [2023] QSC 237 (‘Wardanski’) where costs were fixed in the amount of $160,000 based on 60% of legal costs and 100% of expert witness fees.
  3. [54]
    Wardanski however involved a trial heard in the Supreme Court over three days. The matter at hand was scheduled for two days but finished in one, with the parties allowed to make closing submissions in writing. In Wardanski, Crowley J said:

[83] However, the Defendants further submit that I should make an order for their costs to be fixed in the amount of $160,000. This is a rounded down figure, said to represent 60% of their legal costs until 9 December 2020 and 90% of their costs thereafter. It also includes 100% of their expert witness fees. The Defendants rely on an affidavit sworn by their solicitor, who deposes to the costs and expenses they have incurred.

[84] The Plaintiffs oppose an order for fixed costs. They submit that it would be inappropriate to make such an order on the basis of a general affidavit that does not properly particularise individual attendances.

[85] I am mindful that the power to award fixed costs under r 687(2)(c) of the UCPR should only be exercised where the Court has sufficient evidence to determine an appropriate sum that is logical, fair and reasonable in the circumstances. I am also mindful that when considering whether the power should be exercised the Court is not undertaking a process of taxation or assessment of costs.18

[18] Australian Securities and Investments Commission v Atlantic 3-Financial (Aust) Pty Ltd (No 3) [2008] 2 Qd R 298, 306–7 [32]; 308–9 [36]–[39] (Mullins J).

[86] I am satisfied that the material before me is sufficient to enable an order for fixed costs to be made. I am further satisfied that it is highly desirable that I exercise the power to make such an order in this case, as that will save the parties further delay, trouble and aggravation, which I think the parties would continue to encounter if costs were left to be assessed.

[87] I have reviewed the affidavit of the Defendants’ solicitor. I am satisfied that the contents of the affidavit and the exhibited tax invoices justify making an order fixing the costs payable at $160,000 and that such a sum represents a fair and reasonable amount for the Defendants’ costs.

  1. [55]
    In Wardanski there was available to the Court an affidavit sworn by the plaintiffs solicitor, who deposed to the costs and expenses incurred and exhibited tax invoices justifying the costs claimed to have been incurred. I do not have that here, neither an affidavit by the applicants’ solicitor nor invoices.
  2. [56]
    There is also the matter of the amount claimed. It seems very large for a one day matter in the Tribunal where significant relevant evidence had already been obtained in earlier proceedings and the applicants’ solicitors engaged after commencement of the current proceedings.
  3. [57]
    QBCC oppose fixing costs based on the formula and amounts put forward by the applicants. If a costs award is made they submit the costs should be assessed. I am unable to fix costs here. I do not have sufficient evidence to determine “an appropriate sum that is logical, fair and reasonable in the circumstances.”[5] The costs should be assessed.

Footnotes

[1] Van Dorssen v QBCC [2025] QCAT 69 [106].

[2]  QBCC submissions attached to the application for joinder.

[3]  Australian Standard covering residential slabs and footings construction requirements.

[4]  [30]–[33].

[5] Wardanski [85].

Close

Editorial Notes

  • Published Case Name:

    Van Dorssen & Ors v Queensland Building and Construction Commission (No. 2)

  • Shortened Case Name:

    Van Dorssen v Queensland Building and Construction Commission (No. 2)

  • MNC:

    [2025] QCAT 140

  • Court:

    QCAT

  • Judge(s):

    Member Howe

  • Date:

    14 Apr 2025

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
Australian Securities and Investments Commission v Atlantic 3 Financial (Aust) Pty Ltd[2008] 2 Qd R 298; [2008] QSC 9
1 citation
Jump To
Cite 1 - [2008] 2 Qd R 298
Cowen v Queensland Building and Construction Commission [2021] QCATA 103
2 citations
Jump To
Cite 1 - [2021] QCATA 103
Cite 2 - [2021] QCATA 103
Health Ombudsman v du Toit [2024] QCA 235
2 citations
Jump To
Cite 1 - [2024] QCA 235
Cite 2 - [2024] QCA 235
Marzini v Health Ombudsman (No 4) [2020] QCAT 365
2 citations
Jump To
Cite 1 - [2020] QCAT 365
Cite 2 - [2020] QCAT 365
Van Dorssen v QBCC [2025] QCAT 69
1 citation
Jump To
Cite 1 - [2025] QCAT 69
Wardanski v Mawby [No 2](2023) 17 QR 1; [2023] QSC 237
2 citations
Jump To
Cite 1 - [2023] QSC 237
Cite 2 - [2023] QSC 237

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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