Katiza v Murphy Builders Qld Pty Ltd
[2025] QCAT 305
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- Unreported Judgment
- Katiza v Murphy Builders Qld Pty Ltd[2025] QCAT 305
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Katiza v Murphy Builders Qld Pty Ltd[2025] QCAT 305
Katiza v Murphy Builders Qld Pty Ltd[2025] QCAT 305
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Katiza v Murphy Builders Qld Pty Ltd t/as Murphy Homes [2025] QCAT 305 |
PARTIES: | Sarah Rebecca Katiza (applicant) v Murphy Builders Qld Pty Lts t/as Murphy Homes (respondent) |
APPLICATION NO/S: | BDL277-20 |
MATTER TYPE: | Building matters |
DELIVERED ON: | 11 August 2025 |
HEARD AT: | Brisbane |
DECISION OF: | Member Carrigan |
ORDERS: |
|
CATCHWORDS: | BUILDING CONTRACTS – performance – breach of contract – building defects – rectification of defective building work – directions for the carrying out of rectification work by the builder. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100, s 102(3) Queensland Building and Construction Commission Act 1991 (Qld) s 77 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 |
REASONS FOR DECISION
- [1]The Reasons for Decision in these proceedings were delivered on 27 November 2024 which made orders for Murphy Builders Qld Pty Ltd (the Respondent) to rectify defective work on Sarah Katiza (the Applicant) property and provided for the parties to file in the Tribunal submissions relating to;
- any additional orders the Tribunal should make to give effect to the completion of defective work; and
- Costs in the proceedings in the event that either party intended to make an application for costs.
- [2]These Reasons for Decisions deal with matters in (a) and (b) above as well as the Respondents request for an extension of time to apply for costs.
Respondents Application for Extension of Time to File Costs Application.
- [3]Originally, the parties were to file in the Tribunal any further submissions by Friday, 20 December 2024.
- [4]On 19 December 2024 the Applicant filed an Application to extend time for the filing of submissions. The Tribunal agreed to the extension and extended the time to 28 February 2025 and later dates for various submissions in reply.
- [5]The Applicant complied with the extended timetable and filed submissions with respect to rectification works and in respect of costs on 28 February 2025. The Respondent did not comply.
- [6]On 4 March 2025 the Respondent filed in the Tribunal an Application to extend the time for the filing of a submission applying for costs in the proceedings. That Application was supported by written submissions on costs and an affidavit by the principal of the Respondents Solicitors setting out various facts about costs and attaching supporting documentation.
- [7]The Applicants on 12 March 2025 file material opposing the extension of time for the Respondents to claim costs. The Applicants raised a number of considerations which militated against the grant of an extension of time, namely;
- reliance was made on the Decision of 25 November 2024 which provided;[1]
The Tribunal will, in the circumstances, make directions to the effect that if either party seeks an order for costs then they must do so in accordance with the requirements of those directions and within the strict time limit provided. Otherwise, the general rule that each party bears their own costs are set out in s 100 of the QCAT Act will apply
- the parties are expected to comply with the Tribunal directions
- no reason has been given by the Respondents failure to comply with the extended date in the Tribunals directions;
- the Respondent is represented by lawyers who should be familiar with the Tribunal’s practice and procedure;
- the Respondent has consistently delayed or extended this matter;
- the Respondent has already been afforded a lengthy extension until 28 February 2025;
- the Applicant has filed submissions in compliance with the Tribunal’s directions;
- the Applicant has incurred significant costs to remediate other parts of the property to mitigate costs and damage;
- the Respondent would get an unfair advantage by having seen the Applicants submissions before filing its submissions out of time;
- the Applicant will be unfairly prejudiced and it will make a farce of the Tribunal’s directions if an extension of time is granted;
- [8]The Applicant made additional submissions such as the Respondent submissions lacked merit and were unreasonable in all of the circumstances. These submissions seem to be more directed to the issue for determining the cost application should the Respondent to be granted an extension of time.
- [9]
An extension or waiver may be given under subsection (1) even if the time for complying with the relevant requirement has passed.
- [10]The restriction on the Tribunal broad discretion is where any extension or waiver of compliance would result in prejudice or a detriment which was not able to be remedied by an appropriate order for costs or damage to a party or potential party to the proceedings.
- [11]The Applicant claims to be unfairly prejudiced or would incur a detriment if the extension of time was granted.[4] However, while making that statement, the submissions do not point to any particular prejudice or detriment which the Applicant would suffer if there was an extension of time.
- [12]It is the case as the Applicant submits that the Respondents have delayed making the claim for costs. That delay however is from 28 February 2028 to 4 March 2025 - a period of two (2) business days (taking into account the weekend of Saturday, 1 March and Sunday, 2 March).
- [13]In conducting proceedings;[5]
- the procedure for the proceedings is at the discretion of the Tribunal;
- the Tribunal must;
- act fairly and according to the substantial merits of the case;
- observe the rules of natural justice;
- must ensure, so far as is practicable, that all relevant material is disclosed to the Tribunal to enable it to decide the proceedings with all the relevant facts
- [14]It is the case, as the Applicant submits, that the Respondent has not provided an explanation for its failure to comply with the extended time limit of 28 February 2025. The Tribunal has taken into account and has had regard to the additional submissions of the Applicant for the dismissal of the Application filed 4 March 2025. The Tribunal takes into account that the delay was of two (2) business days and that there was no identifiable prejudice or detriment to the Applicant by allowing the Respondent to file the Application out of time. The Tribunal also takes into account that it must ensure, so far as is practical, that it has all relevant material disclosed so as to enable it to decide the proceedings with all the relevant facts.[6]
- [15]The Tribunal takes into account that it determines its own procedures and in order to observe the rules of natural justice the Respondent should be given the opportunity to file an Application for costs on 4 March 2025. Tribunal is persuaded that in the absence of any identifiable prejudice or detriment to the Applicants and because of the short period of non-compliance (2 business days) while taking into account that all relevant material should be before the Tribunal to determine the dispute between the parties and in order to provide natural justice in these proceedings an order should be made for the extension of time for filing the Application for costs on 4 March 2025.
- [16]The Tribunal agrees to an extension of time in accordance with the Application for miscellaneous matters filed by Murphy Builders Qld Pty Ltd t/as Murphy Homes and directs that the time for filing of any Applications and/or submissions for costs in these proceedings is extended to 4 March 2025.
Any Further Orders to rectify Defective Works
- [17]The Tribunal made orders on 26 November 2024 for the Respondent to rectify defect of work for the excavation of the northern and southern batters (Geotechnical defects) on the Applicants property in accordance with the Geotechnical Engineering Report of Andrew Middleton, principal geotechnical engineer of Core Consultants Pty Ltd. Other defective work related to the architraves and a window on the Applicant’s property. Provision was made for the parties to make submissions for rectification of defective work including details of commencement and completion dates, identity of the contractors to carry out the rectification work, provision of permission authority to enter the Applicants property and any other orders necessary to enable the caring out the rectification works.
- [18]At the Applicants request, the Tribunal extended the period it in which the parties were to deliver their submissions so that the submissions to 28 February 2025.[7]
Applicants Submissions on Rectification Works
- [19]On 28 February 2025 the Applicant filed in the Tribunal submissions with respect to the rectification works to be undertaken by the Respondent. That submissions dealt with a number of matters including.
- commencement and completion date;
- identification of the persons/contractors undertaking the rectification works;
- access arrangements and authority to carry out works on the site;
- any other orders necessary
- [20]The Applicant submits that rectification work should be commenced within four weeks with a completion frame of;
- within three weeks of the commencement date for the rectification to the northern and southern batters; and
- three days from the commencement date for the “indoor” rectification works.
- Prior to commencement of rectification works, provision of a timeline showing where each aspect will be completed;
- provision of updates (no less than weekly) on progress of the rectification works;
- rectification works to be carried out only between the hours of 9.00 am and 5.00 pm from Monday to Friday;
- [21]the Applicant submits that an independent expert be appointed to oversee the rectification works and to ensure that those works are completed satisfactorily and to verify or validate contractual and technical compliance. The basis of the submission is because the Applicant says there has already been dispute between the parties.
- [22]The Applicant further submits that the Respondent should remain primarily responsible for carrying out the remedial works and be solely answerable to the Applicant for the rectification works The Applicant proposes a number of supplementary order which include that the Respondent provide written notification of persons to physically carry out the rectification works, notification as to who is responsible for the proper supervision of the rectification works and that the Applicant appoint a project manager or defects notification person at the Respondents costs to act as an independent channel for communication between the Respondent and the Applicant.
- [23]The Applicant submits that in order to complete the rectification works, reasonable access is to be granted with the usual restrictions and requirements. These would include appropriate insurance for public liability and workers insurance noting the Applicants interest, no unauthorised entry, and for the Applicant to be reasonably satisfied with the rectification works plan should specifically address;
- the slope reprofiling, including compaction standards;
- proposed measures of testing and sign off by the RPEQ engineer appointed; and
- and a final landscaping, reinstatement of finishing details were relevant
- [24]The Applicant seeks “Other Orders” and makes detailed submissions relating to methodology development; slope rectification compliance; geotechnical slope stability report; documentation of compliance; completion of certificates by independent RPEQ; defined work zones, make good, in-ground services damage rectification; fencing impact management; landscaping, prohibition on backfilling with on-site material with certification of imported materials; utilities and nuisance; dilapidation survey and documentation
- [25]In respect of the architraves/window defects the Applicant submits that;
- pre-work photos of the exterior architraves and window areas subject to cracks (not the interior, unless relevant);
- if painting or minimal interior works are needed, the respondent is to arrange in advance scheduling of the works to ensure no privacy or property issues arise;
- durable materials are to be used (not cheap filler) and uniform painting of the affected surface.
- [26]The Applicant has provided further material relating to;;
- recent persistent rainfall in South East Queensland has caused the stability of the building site to be further compromised and damaged due to the Respondents defective works;
- an engineering report dated 15 April 2025 from Amanda Lane, Associate Geotechnical Engineer at SLR Consulting Australia, recording additional technical defects that have occurred is result of weather conditions during the wet season. The report went on to state;
These defects have not been recorded in the ongoing QCAT case and have been occurring in the period between the Hearing and the Directions being put into effect for rectification commencement. The original defects were recorded in the letter report of January 2023
Respondents Submissions on Rectification Works
- [27]The Respondent has provided submissions dated 17 April 2025 in which it states that in respect of the geotechnical issues (Items 15, 33 and 25) it has already prepared a scope of works, construction program site plan and has also engaged with Andrew, Middleton, principle Geotechnical Engineer of Core Consultants Pty Ltd with a view to engaging him for the purposes relating to rectification works to the northern and southern batters.
- [28]The Respondent submits that the appropriate orders for the rectification work of the Geotechnical issues are;
- the appointment of Mr Middleton as the final arbitrator to determine whether or not that rectification work has been completed; and
- to require that work to be completed by the Respondent is generally in accordance with the Scott Schedule in the proceeding and for the Respondents adjusted construction program.
- [29]Respondent submits;
- the rectification work should be commenced and completed in accordance with its construction program which specifies a period of 18 days for the batter remediation;
- Mr Middleton be appointed as the “independent expert” to provide oversight of the rectification works and to ensure satisfactory completion of those works;
- access should be provided to the Respondent (and its subcontractors) to complete the rectification works in accordance with the adjusted construction program; and
- the Respondents “Scope of Works” is sufficient and no other orders are contemplated.
- [30]In respect of the rectification of the architraves and window corner junction (living room) he Respondent submits that no particular additional orders are required other than to appoint Mr Middleton as the final arbiter to determine whether the work has been completed and to require the work to be completed by the Respondent generally in accordance with the Scott Schedule in the proceedings and the Respondents adjusted construction program.
- [31]The Respondent submits that the Applicants orders sought in its submissions are “ultimately complex and unnecessary” given the detail in this Scott Schedule and the engineering report dated 19 December 2022 from Mr Andrew Middleton. The Respondent submits that orders proposed by the Applicant in paragraphs 15 to 31 of her submissions are not required.
- [32]The Applicants solicitors on 22 April 2025 sent a letter to the Respondent solicitors stating;
From our calculations, the submissions are almost 2 months overdue. Where do you say the provision of these submissions fit into the orders made on 26 November 2024 and amended on 22 January 2025.
No response was provided by the Respondent solicitors to the Applicants solicitors. The Applicants “formally object” to these documents being lodged by the Respondent outside the required time frame.
- [33]It is regrettable, to say the least, that the Respondent solicitors did not (on the material available to the Tribunal) provide any response to the Applicant or to the Tribunal for their failure to observe the time limit to file the Respondents submissions relating to the rectification issues. It could reasonably be expected if there is a failure to comply with time limits by a period of two months that some sort of explanation would be forthcoming. The Tribunal does not come condone a failure by parties, or their legal representatives as is the case in these proceedings, to observe directions for the filing of material or in the event of failure to comply to then file a request by Application for an extension of time with an explanation for the failure to comply. The Tribunal notes that it does not appear to be the case that the Respondent completely disregarded the Tribunal’s directions to file submissions by 28 February 2025. The late material filed by the Respondent shows that it had been undertaking preparatory work for the filing of those submissions by contacting Mr Andrew Middleton about his participation in this process, preparing a “Scope of Works”, a “Construction Program” and a site plan showing the adjustments that will result from the northern and southern batters rectification works. As it is the Respondents obligation to perform the rectification works referred to in the orders of 26 November 2024 it is necessary for the Tribunal to have before it all the relevant material and submissions from the parties for carrying out of that rectification work The Tribunal takes note of the Applicants objection to the late filing of the Respondents submissions on rectification works. Notwithstanding a large measure of reluctance on the part of the Tribunal to consider the overdue submissions and to disregard those submissions, in the circumstances, the Tribunal will take into it account the various facts and matters contained within those overdue submissions. Significant matters are contained in the overdue submissions relating to the length of time to complete the rectification works, contact with and the agreement by Mr Andrew Middleton to act as an arbiter of compliance with the contract and geotechnical engineering requirements and other relevant matters.
- [34]For the above reasons the Tribunal proposes to take into account the late submissions of the Respondent relating to the geotechnical issues and also with respect to the architraves and windows, notwithstanding the “formal objection” by the Applicant.
What are the Requirements of the Parties for the Rectification Works
- [35]Having regard to the submissions of the Applicant and the Respondent in relation to carry out the rectification works, the Tribunal is satisfied that there is a need for a number of matters to be specified for those works which will be discussed below.
Respondent is Responsible for the Rectification Works
- [36]The Applicant submits that the carrying out of rectification works should remain the contractual responsibility of the Respondent. The submissions from the Respondent if not explicitly, certainly impliedly, adopt the similar position even though there may be contractors engaged by the Respondent to carry out rectification works. The Tribunal will direct and that the Respondent is responsible for carrying out and completing the rectification works in accordance with the contractual documents between the parties including the Geotechnical Report from Mr Andrew Middleton of 19 December 2022 .
Commencement and Completion of Rectification Work
- [37]Taking into account the submissions on rectification by both parties the Tribunal is satisfied that the rectification work can be completed within a period of at least 18 working days. The Applicant submits that commencement should commence not later than four (4) weeks after the Tribunal’s directions and be completed within three (3) weeks of commencement. The architraves and windows should be completed within three (3) day period. The Tribunal considers in those circumstances that the Respondent will be required to commence the geotechnical issues rectification and also the rectification of architraves and windows within four (4) weeks of the date of these directions and will complete all of those rectification works within a further a period of four (4) weeks.
- [38]The Applicant further submits that prior to commencing the rectification works the Respondent should provide a timeline showing when each aspect of the works will be completed. The Applicant does not refer to any part of the contract between the parties for this requirement. It rather appears that this is a new requirement which the Applicant considers should be imposed on the Respondent. There is no evidence referred to of such a timeline being required when the original construction of the batters was previously undertaken. In any event, the Respondent has already provided the ”Construction Program” for completion of the rectification works. The Tribunal is not satisfied that this requirement is necessary and declines to make any direction for such a requirement for the remediation works.
- [39]The Applicant also submits that the Respondent provide regular updates (no less than weekly) of progress of the rectification works. Clearly this would be an impractical requirement in terms of rectification of the architraves and windows. The geotechnical rectification works are to be completed within a period of four weeks, a fairly short period of time. The Respondent has provided documents for the “Scope of Works” and the “Construction Program” which the Applicant has had the benefit of for some considerable time. The Applicant should, or ought to, be fully conversant with how the Responded intends to proceed with the geotechnical rectification works. In the circumstances the Tribunal considers that is unnecessary for further directions such as regular updates during their short rectification of works period.
Appointment of an Independent Expert
- [40]While the Tribunal cannot make orders requiring Mr Andrew Middleton to be an arbiter of compliance with this rectification work (as he is not a party to the proceedings) it notes however that the Respondent has approached Mr Middleton and obtained his consent and willingness to participate in the rectification work..
- [41]In those circumstances, the Tribunal will make a direction that the Respondent obtain and retain the services of Mr Andrew Middleton at the Respondents sole cost to undertake the role as arbiter of compliance with the rectification works. Accordingly, while the Applicant has made submissions for the appointment of an “independent arbiter”, the availability of Mr Andrew Middleton to undertake tasks referred to, makes it unnecessary to consider the appointment of any additional person as arbiter
- [42]The Applicant should be provided with compliance documentation provided by Mr Andrew Middleton. The Tribunal considers it appropriate for a direction to be made that the Respondent obtain an appropriate certificate of compliance (in a form to be decided by Mr Andrew Middleton) showing that the rectification work has been completed and that there is compliance with the contractual requirements in the contract and with relevant engineering and other standards in respect of the geotechnical defects. The Respondent should obtain a similar certificate in respect of the completion of the rectification works to the architraves and windows that require the rectification works. Any certificate issued by Mr Andrew Middleton shall be final and conclusive proof of compliance with the rectification works as between the Applicant and the Respondent.
- [43]The Respondent is responsible for all costs, fees and charges of Mr Andrew Middleton relating to the engagement and performance of duties in carrying out and discharging the obligation to provide certification of compliance with the rectification work.
Access to the Applicants Site to Carry Out Rectification Work
- [44]The Tribunal considers it appropriate there should be specific hours of operation for the rectification works. The Tribunal accepts the Applicants submissions that all work should be completed only between the hours of 9.00 am and 5.00 pm Monday to Friday (inclusive). No other rectification work outside of those hours should be undertaken.
- [45]The Respondent, it’s employees, workmen and contractors directly associated with the rectification works should be allowed access to the Applicants property during the period of the rectification works. There should be no unauthorised entry to those areas of the Applicants property which are not directly or indirectly required for the rectification work which is to include areas for setting up for the rectification work, an area for stockpiling any materials or parking on machinery necessary for the works and any other necessary ancillary area.
- [46]The Respondent is to give prior written notification to the Applicant of the dates or periods on which the Respondent, it’s employees, workmen or contractors will be on site including identifying the individual persons on site by name.
- [47]The Respondent is to give prior written notice to the Applicants of details of who is the foreman on site or other responsible person for supervision of the rectification works and who is to be the contact person of the Respondent while the rectification works are taking place. That written notification is to include the name of the foreman and or the responsible person including contact details to include the email address of that person for the purposes of the rectification work.
- [48]The Tribunal does not consider it necessary in the circumstances for the Applicant to appoint a project manager or defect rectification expert at the Respondents costs. The Applicant’s representative in these proceedings, Mr Katiza, is a registered (non-practising) architect and engineer.
- [49]While the Applicants submissions on the need for insurance including public liability cover are prudent and otherwise appropriate, however this is not an occasion to rewrite the contractual arrangements between the parties. The Respondents previously undertook the geotechnical earthworks to the northern and southern batters and if that work was performed without any contractual requirement for insurance, then it is not readily apparent why the Respondent should now re-enter the site on some different insurance basis. However, if the contract between the Applicant and the Respondent required insurance cover during the construction period then those same conditions should apply during the course of rectification of the northern and southern batter and the other rectification work. The Tribunal make directions for the Respondent to comply with any insurance provisions, if any, in the contract between the parties during the period of the rectification works.
- [50]The Applicant make submissions for the Respondent to provide a Rectification Works Plan to address slope profiling methodology, proposed measures and a final landscaping details. The obligation of the Respondent is to rectify defective works relating to the northern and southern batters which was a contractual matter and subject to geotechnical requirements referred to in the evidence during the hearing in these proceedings. The Respondent is to arrange the appointment of Mr Andrew Middleton to oversee these works and to certify compliance with the relevant criteria. As previously referred to the Respondent has already provided some time ago it’s “Scope of Work” document and a “Construction Program” for the completion of the works. , No contractual basis has been provided for the preparation of a Rectification Works Plan which in the circumstances appears to be unnecessary. The Tribunal is not satisfied that the Respondent should be required to prepare such a Plan.
Other Orders
- [51]The Applicant makes detailed submissions in relation to a number of “Other Orders”.
- [52]Those Orders include provision of documents dealing with Methodology Development, Slope Rectification Compliance, compliance with relevant Engineering Standards, Geotechnical Slope Stability Report, preparation of comprehensive records as a Documentation of Compliance, records for various certifications by an RPEQ, documenting a Defined Work Area, provision for a “Make Good” and reinstatement arrangements, In Ground Services Damages Rectification, Fencing Impact Statement and other matters referred to in the Applicants submissions.
- [53]There is already a requirement for the Respondent to obtain a certificate of compliance from Mr Andrew Middleton. The Tribunal considers that it is appropriate for the Respondent to “Make Good” the site of the rectification works and any other site areas on the Applicant’s property used in the course of the rectification works. A direction to that effect should be made. However, the rectification work is to provide compliance with the contract and associated engineering standards which will ultimately be assessed by Mr Andrew Middleton. Accordingly, the Tribunal is not satisfied that there is any need to make provision for the additional documentation which the Applicants submissions in “Other Orders” seeks to impose. The Tribunal declines to make orders for that documentation or requirements.
Orders for Carrying Out and Completing the Rectification Work
- [54]The Tribunal makes the following Orders in respect of the rectification works;
- the Respondent is responsible for carrying out and completing the rectification works in accordance with the contractual documents between the parties including the Geotechnical Report from Mr Andrew Middleton of 19 December 2022;
- the Respondent is to commence rectification work for the Geotechnical issues on the northern and southern batters and the architraves and windows within four (4) weeks of the date of these directions and will complete all of those rectification works within a further period of four (4) weeks.
- the Respondent is to obtain and retain the services of Mr Andrew Middleton on these terms;
- the services provided by Mr Andrew Middleton are to supervise and to provide certification of compliance by the Respondent in undertaking and completing the rectification works in accordance with the contract between the parties including all relevant geotechnical and engineering requirements.
- the services to be provided by Mr Andrew Middleton are at the Respondents sole cost. The Respondent is solely responsible for all costs, fees and charges of Mr Andrew Middleton relating to his engagement and performance of duties in carrying out and discharging the obligation to provide supervision and certification of compliance with the rectification work.
- the Respondent is to obtain an appropriate certificate of compliance (in a form to be decided by Mr Andrew Middleton) showing that the rectification work has been completed and that there is compliance with the contractual requirements and with relevant geotechnical and engineering requirements.
- the Respondent is to obtain a certificate in respect of the completion of the rectification works to the architraves and window that require the rectification.
- any certificate issued by Mr Andrew Middleton shall be final and conclusive proof of compliance with the rectification works and has binding legal effect on the Applicant and the Respondent.
- the Respondent is to give to Mr Andrew Middleton a copy of these Directions prior to the commencement of the rectification works.
- The Respondent is to give written notice to the Applicant prior to the commencement of the rectification works, that it has secured the retention of Mr Andrew Middleton for the purposes of these rectification works and on the basis set out above.
- in the event that the services of Mr Andrew Middleton are not able to be obtained or retained to provide the services referred to above, then both parties have liberty to apply to the Tribunal for the appointment of an appropriate person as an independent expert to carry out the services referred to above in lieu of Mr Andrew Middleton.
- all rectification work is to be undertaken between the hours of 9.00 am and 5.00 pm Monday to Friday (inclusive). (the Work Hours) No other rectification work outside of those hours should be undertaken.
- access to the Applicants property for carrying out rectification work is on these terms;
- subject to the Work Hours terms, the Applicant is to allow the Respondent including its employees, workmen and contractors access to those parts of the Applicants property required for rectification work and which access is to include access roads and areas for setting up for the rectification work, an area for stock piling any materials or parking of vehicles and or machinery necessary for the works and any other necessary ancillary area to undertake rectification work.
- the Respondent, it’s employees, workmen and contractors directly associated with the rectification works are only to access those areas of the Applicants property which the Applicants allows during the Work Hours terms for the period of the rectification works. There should be no unauthorised entry to those areas of the Applicants property which are not directly or indirectly required for the rectification work.
- the Respondents must give prior written notification to the Applicants of the dates on which it will commence rectification works and will also give prior written notice when the Respondent, it’s employees, workmen or contractors will be on site including identifying the individual persons involved by name.
- the Respondent must give prior written notice to the Applicants of the foreman on site or other responsible person for supervision of the rectification works and who is to be the contact person of the Respondent while the rectification works are taking place. That written notification is to include the name of the foreman or the responsible person including contact details such the email address of that person for the purposes of the rectification work.
- the Respondent is to comply with the insurance provisions, if any, in the contract between the parties during the period of the rectification works.
- on completion of the rectification work, the Respondent is to “Make Good” the site of the rectification works and any other areas on the Applicant’s property used in the course of the rectification works.
Costs
- [55]The primary position of the Applicant as to costs is that no order as to costs should be made.[8] However, the Applicant has a “fallback position” in circumstances where in the event the Tribunal is minded tomake an order for costs, then in those circumstances the Applicant seeks an order for costs.[9]
- [56]The Applicant has provided submissions in support of her position on costs. An affidavit by the Applicant demonstrates that her legal costs incurred were substantial in the order of $84,266.63 for these proceedings. Those substantial costs were incurred even though for a substantial part of the proceedings for the hearing in the Tribunal the Applicant was represented by Mr Lawson Katiza, a duly registered (non-practising) architect and engineer.
- [57]The primary position of the Respondent is that it seeks an order for costs against the Applicant on the “Standard Basis”. The Respondent has filed detailed submissions on costs and an affidavit from a principle of the Respondent’s Solicitors deposing to various relevant facts for the calculation and quantum of legal costs and attaching numerous documents relating to costs.
- [58]The Respondents submissions contain an analysis of the issues in dispute of the proceedings and conclude that the Applicant succeeded in respect of less than 10% of the quantum of damages claimed in the proceedings. The Respondent maintains that it was “overwhelming successful” in the proceedings.
- [59]The Respondent also submit that it is in the interests of justice that it be awarded costs in these proceedings. The Respondent submits that s 102(3) of the QCAT Act specifies the matters the Tribunal may have regard to in exercising its broad discretion to award costs pursuant to s 77 of the QBCC Act. The Respondent submits that the relevant matters for the interests of justice include;
- there was significant complexity in these proceedings given the nature and number of items in the Scott Schedule;
- because of this complexity the Respondent benefited the proceedings by having solicitor and counsel as it’s representative;
- overall, there were weak claims in the proceedings by the Applicant as opposed strong claims by the Respondent;
- the Respondent made concessions in respect of the amount of approximately $8,390.00 in item 8 of the Scott Schedule;
- the Respondent made an offer to settle items 15 and 25 in a written offer dated 17 February 2023. That offer was not accepted
- [60]The Respondent has incurred significant costs of $245,843.40. It seeks an order that cost be fixed and on the “Standard Basis” and submitted that the appropriate amount on that calculation is $191,407.84. This, it is submitted, represent 75% of its costs.
- [61]The Respondent submits that the general rule that each party bears their own cost of the proceedings as provided in s 100 of the QCAT Act is displaced by s 77 of the QBCC Act. In Lyons v Dreamstarter Pty Ltd, to which the Respondents submissions refer, it was decided that a party to Tribunal proceedings seeking a costs order should not bear the onus of overcoming a strong contra-indication against costs orders as required by s 100 of the QCAT Act.[10] In that case the Appeal Tribunal stated; [11]
A jurisdiction given in general terms allows the Tribunal to make an order as to costs that is justified in the circumstances. It is a broad general discretion which must be exercised judicially, not upon irrelevant or extraneous considerations but upon facts connected with or leading up to the litigation.
Accordingly, an enabling Act, the QBSA Act, does, provide otherwise. As a result, the usual position as to costs in the Tribunal is displaced. That result is reinforced by other provisions dealing with the relationship between the QCAT Act and enabling Acts.
- [62]Accordingly, the issue becomes what is justified in the circumstances taking into account facts connected with leading up to this litigation.
- [63]The complex nature of the facts referred to by the Respondent consisted of an inordinate number of alleged defects are set out in the Scott Schedule. Those defects, except for a small number, were the subject of considerable dispute with differences of opinion expressed by the parties building or engineering expert witnesses in the proceedings. The Scott Schedule demonstrated that there was a triable issue in respect of these defects. It was not the case that the Applicant proceeded into these proceedings without the assistance of appropriately qualified professional witnesses. Similarly for the Respondent. The dispute over multiple defects required a decision of the Tribunal and it could not be said that either of the parties was unreasonable in the prosecution of the proceedings.
- [64]The approach by the Respondent that it had “overwhelming success” is not only a subjective assessment, about which others may disagree, but is also, a very narrow approach. It fails to take into account other facts and circumstances both before and during the proceedings.
- [65]The factors which the Tribunal is to have regard to in accordance with s 102(3) of the QCAT Act have been referred to in the Respondents submissions. However, the “significant complexity” to which the Respondent submits demonstrates that this dispute was the type of matter which required a judicial determination and was made more difficult as between the parties for them to resolve issues by themselves. The proceedings did benefit by the Respondent retaining solicitor and barrister who were able to identify issues and relevant materials relating to the particular issue. The Applicant did not conduct the proceedings herself but obtained the leave of the Tribunal to be represented by her husband, Mr Lawson Katiza, who is a professional person and is a duly registered (non-practising) architect and engineer. His curriculum vitae demonstrates that he had significant building experience in Australia and overseas.
- [66]Normally a early offer to settle proceedings is a significant factor in deciding the issue of costs, particularly where there has been a refusal of that offer. On 17 February 2023 the Respondent made an offer to settle items 8 as well as items 15 and 25 of the Scott Schedule. That offer was only open to 4 pm on Sunday, 19 February 2023.[12] The practical consequences of that offer was that the Applicant had Saturday and Sunday (until 4.00 pm) to consider whether to accept an offer of $25,000.00 in respect of complex geotechnical issues as well as the offer of $8,390.00. In the context of this litigation the timeline provided by these offers do not appear to provide a reasonable opportunity for the Applicant to give any proper assessment to the offers.
- [67]In considering relevant matters in s 102(3) of the QCAT Act;
- The Tribunal does not consider either party to the proceedings acted in a way that unnecessarily disadvantaged another party to the proceedings;
- These proceedings involved complex geotechnical engineering issues as well as diverse multiple factual situations in the Scott Schedule which were the subject of competing evidence from experts called in the proceedings;
- While the Applicant was unsuccessful in a number of the defects claimed in the Scott Schedule nevertheless there was expert building evidence called to support the Applicants case in these proceedings. That evidence had to be assessed in conjunction with expert building evidence from the Respondent. Both parties brought to the Tribunal bona fide and genuine disputes in relation to matters in the Scott Schedule requiring a decision of the Tribunal;
- Neither party provided evidence of their financial circumstances and the Tribunal is unable to make any finding or determination in respect of this matter;
- The Respondents case for an award of costs is substantially based upon what it says is its “overwhelming success” in these proceedings. But that success has to be considered against the background of seriously contested opinions and facts in the proceedings were both parties had bona fide and genuine dispute relating to defects in the Scott Schedule;
- Usually, where an offer to settle is made and not accepted, the Tribunal would attach significant weight, at least, to such an offer particularly if it was made, as is the case here, at an early stage of the proceedings. However, the written offer made by the Respondent and not accepted by the Applicant gave a timeline of two (2) days during which it was open for acceptance, which included a Saturday and Sunday, on complex issues in these proceedings. The Tribunal in these circumstances does not attach to that written offer the significant weight which would normally be afforded. Had the offer remained open for a reasonable length of time the Tribunal would have attached significant weight to such an offer.
- [68]The Tribunal has a discretion to exercise for awarding costs pursuant to s 77(3)(h) of the QBCC Act. In the exercise of the discretion the Tribunal takes into account all of the matters set out in (a) to (f) in the preceding paragraph and in doing so is not persuaded that the discretion to award costs should be exercised in favour of the Respondent or the Applicant. The Tribunal will make no order as to costs other than to dismiss the Application for costs by the Applicant and by the Respondent.
Member Carrigan
Queensland Civil and Administrative Tribunal
Footnotes
[1] (2024) QCAT 609 at paragraph 247
[2] QCAT Act s 61
[3] Ibid s 61(2)
[4] Applicants submissions filed 12 March 2025 at paragraph 2.6
[5] Ibid s 28(3)
[6] Ibid s 28(3(e)
[7] Tribunal’s Directions made 22 January 2020
[8] Applicants submissions filed on 28 February 2025 at paragraph 1.1
[9] Applicants submissions filed on 28 February 2025 at paragraph 3.1
[10] [2011] QCATA at (38)
[11] Ibid at (33) –(34)
[12] See Affidavit of Brendan Joseph Bathersby dated 4 March 2025 at Exhibits BJB 2 and BJB 4