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Yeo & Anor v Queensland Building and Construction Commission[2025] QCAT 90

Yeo & Anor v Queensland Building and Construction Commission[2025] QCAT 90

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Yeo & Anor v Queensland Building and Construction Commission & Anor [2025] QCAT 90

PARTIES:

daxter yeo and helen shuk yee ng

(applicants)

v

queensland building and construction commission

(first respondent)

DE MARCO CONSTRUCTIONS PTY LTD

(second respondent)

APPLICATION NO/S:

GAR277-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

10 March 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

  1. The Application for miscellaneous matters filed 13 October 2023 seeking an order for costs against the Queensland Building and Construction Commission is dismissed.
  2. There is no order as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – whether the interests of justice require an award of costs – whether the QBCC caused the Homeowners unnecessary disadvantage

Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 7, s 25, s 26

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 21, s 100, s 102, s 105

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 86

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

Campbell v Queensland Building and Construction Commission (No 2) [2023] QCAT 54

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

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

Health Ombudsman v du Toit [2024] QCA 235

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

Queensland Building and Construction Commission v B&L Constructions Qld Pty Ltd (No 2) [2023] QCATA 107

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

Robertson and Robertson v Airstrike Industrial Pty Ltd [2011] QCAT 120

Tamawood Ltd v Paans [2005] 2 Qd R 101

Yeo & Anor v Queensland Building and Construction Commission & Anor [2023] QCAT 367

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)

Applicants:

S Taylor, instructed by Carter Newell Lawyers

First Respondent:

R Ensby, Gadens Lawyers

Second Respondent:

R De Marco

REASONS FOR DECISION

  1. [1]
    Daxter Yeo and Helen Shuk Yee Ng (‘the Homeowners’) successfully applied to set aside the decision of the Queensland Building and Construction Commission (‘QBCC’) to disallow a claim under the Statutory Insurance Scheme (‘SIS’).[1]  The QBCC disallowed their claim on the grounds that the Homeowners had not properly terminated the Contract for the default of De Marco Constructions Pty Ltd (‘the Contractor’).
  2. [2]
    By decision made 11 September 2023, I decided that the Homeowners had properly terminated the contract with the Contractor for the Contractor’s default.  I ordered that the matter be returned to the QBCC for reconsideration, ordered the Contractor to pay to the Homeowners certain costs thrown away and set a timetable if a party wished to seek other costs and for the question of those costs to be determined on the papers.
  3. [3]
    The Homeowners applied for orders that the QBCC pay their costs of the proceedings, including the costs of their application for costs to be agreed or as assessed on a standard basis on the scale appropriate for a proceeding in the District Court.[2] Submissions and evidence have been received.[3] The Contractor did not file any detailed submissions in response to the Homeowners’ application for costs of the proceedings. 
  4. [4]
    Mr De Marco, the Contractor’s director, wrote to the Tribunal after delivery of the 11 September 2023 decision. Mr De Marco:
    1. advised that he has entered bankruptcy and provided evidence to support this contention;
    2. disagreed with my decision of 11 September 2023; and
    3. advised the order for costs in favour of the Homeowners made 11 September 2023 against the Contractor would not be paid.[4] 
  5. [5]
    By email dated 1 April 2024, Mr De Marco contends that my decision of 11 September 2023 is wrong, says he cannot afford to pay legal costs and refers to settlement discussions between the Homeowners and the Contractor on 11 December 2020 prior to the final hearing but does not provide any details as to the settlement offer.
  6. [6]
    The Homeowners applied for directions allowing the parties to make further submissions.[5]  On 17 January 2025 I made directions allowing further submissions, which have been received.[6]
  7. [7]
    On 24 February 2025 I conducted:
    1. an online ASIC search which shows that the Contractor remains a registered company; and
    2. an online QBCC search which shows that the Contractor does not hold a current licence. 
  8. [8]
    I proceed to determine the Homeowners’ application for costs.  The delay in determining this costs application is regrettable and relates, at least in part, to resourcing issues.
  9. [9]
    The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides, ‘[o]ther 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.’[7] This position may be displaced, if the Tribunal considers the interests of justice require it to make an order for a party to pay all or a part of the costs of another party.[8]  It is not disputed that the relevant enabling Act, the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) does not provide for the awarding of costs in the current circumstances.
  10. [10]
    In Ascot v Nursing & Midwifery Board of Australia,[9] Judge Kingham stated:[10]

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 s102(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.

  1. [11]
    Section 102(3) of the QCAT Act sets out the matters that the Tribunal may have regard to in deciding whether to award costs.  Those factors are discussed below.
  2. [12]
    The Homeowners contend that it is in the interests of justice for a costs order to be made as it would be unjust for their success to be substantially eroded by having to pay their own costs incurred in achieving their success. This submission is made in similar terms to the observations of Keane JA, as he then was, in Tamawood Ltd v Paans (‘Tamawood’)[11] in relation to similar but different provisions of the Commercial and Consumer Tribunal Act 2003 (Qld). The QBCC contends that the interests of justice do not require a costs order in favour of the Homeowners against the QBCC.
  3. [13]
    In Marzini v Health Ombudsman (No 4)[12] (‘Marzini’):

In my opinion the correct approach to the operations of s 100 and s 102 of the QCAT Act is similar to that formulated by the Hon P Lyons QC in Thompson v Cannon (supra): The ultimate question posed by the statutory provisions is whether in a particular case the interests of justice require the Tribunal to make a costs order. That is the effect of the terms of the statute. Because of the use in s 102(1) of the word “require”, the default position of no order as to costs should not be too readily departed from. I respectfully agree with the approach of the Hon J B Thomas QC in Lee (supra) to the comments of Keane JA in Tamawood (supra)...

I do not consider that there is any justification in the words of the statute for any further constraint on the operation of the power to order costs under s 102, although the section directs attention to a number of matters which may in a particular case be usefully considered. The reference to “any other matter the Tribunal considers relevant” shows that this list is not to be read in a confining sense. One matter which is relevant is that this proceeding is one where there was a right to legal representation.

  1. [14]
    The Court of Appeal in Health Ombudsman v du Toit[13] recently:
    1. endorsed the approach in Marzini that no order for costs is to be made unless the Tribunal considers the interest of justice require it to do so;[14]
    2. found that the language of ss 100 and 102 are to be construed in the context of the QCAT Act as a whole[15] and that an important contextual consideration is that the Tribunal ‘deals with a multiplicity of matters which vary in nature both in terms of complexity and seriousness of outcomes’;[16]
    3. found that ss 100 and 102 should be construed in the context that s 43(2) gives a limited class of persons an entitlement to be represented;[17]
    4. noted that the discretion under s 102(1) ‘is wide’ and noted that what constitutes the interests of justice ‘will vary according to the circumstances of each case’;[18]
    5. agreed that the use of the word ‘require’ suggests that the interests of justice must clearly support a costs order[19] and disapproved the approach in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) (‘Ralacom’)[20];
    6. found that in construing s 102 consistently with the objects and purposes of the QCAT Act it is not to be read down by the terms of s 100 because s 100 is specifically subject to other provisions of the QCAT Act;[21]
    7. noted that in Tamawood the provisions under consideration ‘did not expressly provide for a usual rule that each party bear their own costs subject to a discretion to make a costs order where the interests of justice required such an order to be made’;[22] 
    8. noted that Tamawood was a commercial building case and that different considerations may apply to a question of costs in disciplinary proceedings;[23]
    9. noted in relation to the decision-maker’s statutory function ‘it was a matter for the Tribunal, in the particular circumstances of the proceedings, as to how much weight was to be ascribed to this consideration’[24] and noted that this ‘will vary according to the circumstances of each case.’[25]
  2. [15]
    A costs order under s 102(1) of the QCAT Act should not be made lightly.[26] 
  3. [16]
    In a jurisdiction where the starting point is that parties bear their own costs, it is incumbent upon parties to be mindful of the costs they are incurring and their relativity to the potential benefit sought from the proceeding.  

Whether a party acts in a way that unnecessarily disadvantages another party to the proceedings[27]

  1. [17]
    I am not satisfied that this is a factor in favour of an award of costs.
  2. [18]
    The Homeowners contend that the QBCC unfairly disadvantaged the Homeowners because it was responsible for:
    1. the volumes of irrelevant material filed in the Tribunal; and
    2. unnecessarily increasing the complexity of the proceeding which resulted in the Homeowners incurring additional legal costs.
  3. [19]
    The Homeowners accept that the QBCC is entitled to defend its position under the SIS but say:

What is relevant is whether in defending its position the Commission acted in a manner that was excessively adversarial, unreasonable, or in disregard of its dual role as both a regulator and a statutory insurer. The manner in which the Commission approaches its defence, especially if it involves unnecessary legal argument, excessive documentation demands without clear relevance, or a failure to engage in a timely and constructive review process, are factors weighing in favour of awarding costs…. The point is that the Commission’s legitimate right to defend its decisions ought not come at the expense of homeowners’ access to justice or unduly penalise them for seeking to enforce their rights under the Scheme.[28]

  1. [20]
    The Homeowners say that the QBCC’s request for a significant volume of material as part of the internal review, approximately 25 lever arch folders, placed an unreasonable strain on the Homeowners’ time and resources.[29]  The evidence supports a finding that 21 volumes of documents were delivered to the QBCC on or about 25 June 2018[30] and that further documents were emailed to the QBCC on 9 July 2018.[31] The QBCC addressed the circumstances which lead to the Homeowners delivering many volumes of documents to the QBCC and the additional demands that imposed upon the QBCC. 
  2. [21]
    Ms Tyler, the QBCC officer, who made the internal review decision, gave evidence that:[32]
    1. when making a decision in relation to the validity or otherwise of the termination of the building contract:
      1. she asks the owner and builder to provide documents relating to the building contract, variations and documents relevant to the conduct of the parties during the course of the building contract but has no knowledge of the extent of documents held by the parties, which may be relevant;
      2. she relies upon the parties, particularly where they are legally represented, to determine whether the documents held by them are relevant;
    2. she was surprised at the volume of material delivered and that after review concluded that very little documentation provided related to the issue whether progress claims 27 and 27A were payable prior to termination of the Contract by the Homeowners, which required her to seek submissions on 4 July 2018;
    3. although the Homeowners’ solicitors wrote to her, she was not informed as to the extent of the documentation prior to the Homeowners compiling the 21 volumes;
    4. and, I accept, she did not request the documents from the Homeowners with a view to causing them unnecessary costs or inconvenience.
  3. [22]
    The Homeowners were legally represented at that time and did not, with respect, clearly challenge the request due to the volume of documents or clearly articulate the claimed lack of relevance at a time prior to compiling them for delivery.  I am not satisfied that the QBCC unnecessarily disadvantaged the Homeowners as contended. 
  4. [23]
    In any event the request for documents was not part of the Tribunal proceedings. The Tribunal has previously found in Robertson and Robertson v Airstrike Industrial Pty Ltd[33] that:

All of the examples of causing unnecessary disadvantage referred to in section 48(1), are things that may occur during the conduct of a proceeding. The matters to be taken into account under section 48(3) support this interpretation. As a matter of statutory construction, it is clear that section 48 applies in respect of causing unnecessary disadvantage in the course of conducting proceedings before the tribunal.

Accordingly, the submissions of both parties which relate to matters occurring prior to the commencement of the proceedings, including any alleged delay in making the claim, are irrelevant and are not considered further.

  1. [24]
    The documents having been in the QBCC’s possession, it produced them pursuant to the Tribunal’s directions as documents which may be relevant. I am not satisfied that the QBCC unnecessarily disadvantaged the Homeowners by doing so.
  2. [25]
    The Homeowners contend that the QBCC unnecessarily disadvantaged it by seeking to join the Contractor, which made the proceedings more complicated and expensive than it might otherwise have been. 
  3. [26]
    The Homeowners unsuccessfully resisted the joinder of the Contractor. They requested written reasons which were given and dated 23 January 2019. The learned Member was not persuaded by their substantial submissions,[34] the costs of which are now apparently being sought, and exercised his discretion to join the Contractor stating:[35]

Dr Ng and Dr Yeo on the one hand, and De Marco on the other hand, appear to have competing positions in relation to the termination of the contract.  Those competing positions should be put directly to the Tribunal.  As noted above the role of the QBCC is to use its best endeavours to assist the Tribunal to reach the correct and preferable decision.  It is not the role of the QBCC to promote the position of either Dr Ng and Dr Yeo, or De Marco.  Joinder of De Marco would enable it to properly advocate its position in respect of the issues relevant to the termination of the contract.

  1. [27]
    In review proceedings involving findings of whether a building contract was properly terminated by a homeowner for the contractor’s default the homeowner or the contractor will usually have review rights depending upon the outcome of the review.  Joining the other party seeks to avoid a further proceeding which challenges the reviewed decision.
  2. [28]
    I am not satisfied that the QBCC unnecessarily disadvantaged the Homeowners by applying to join the Contractor.
  3. [29]
    The QBCC submits, and I accept, that during the hearing it discharged its duty under s 21 of the QCAT Act to help the Tribunal make its decision on the review. It says it questioned witnesses for the Homeowners and the Contractor so that the Tribunal might be better able to assess and weigh the evidence and its written submissions set out relevant case law and sought to address the issues the Tribunal was required to consider, to assist the Tribunal to come to the correct and preferable decision.
  4. [30]
    The Homeowners say that the QBCC disadvantaged them because it did not address all the issues to allow the Tribunal to substitute a decision allowing the claim against the SIS, because it did not address clauses 1.7 and 7.1 of the Policy.[36]
  5. [31]
    While the QBCC did not address these matters in its submissions, I accepted that the central focus of the proceeding was whether the Homeowners properly terminated.[37]  The Homeowners, who bore an evidentiary onus, did not file or draw to my attention evidence, upon which I could rely to make relevant factual findings, as to the date of payment of the insurance premium or evidence in relation to whether there was any relevant prior written approval obtained or sought by the Homeowners.
  6. [32]
    I am not satisfied that the QBCC unnecessarily disadvantaged the Homeowners as contended.

The nature and complexity of the dispute[38]

  1. [33]
    I accept that this is a factor in favour of an award of costs, but it is not determinative.[39]
  2. [34]
    The Homeowners were granted leave for legal representation by directions made on 28 September 2018, a relatively short time after the Application for review had been filed on 13 August 2018. The QBCC did not oppose the granting of leave.[40]
  3. [35]
    At this time, it is likely that all parties had an expectation that the principles set out in Ralacom[41] would likely apply to any application for costs.
  4. [36]
    As my quite lengthy reasons for decision demonstrate, the nature and complexity of the dispute, which involved quite technical arguments as to the proper construction of the building contract and whether the Homeowners had properly terminated the contract, warranted legal representation. Whether a party has validly terminated a building contract is often a complex matter both factually and legally particularly where the Homeowners relies upon paragraph (d) of the Policy i.e. “any breach of the contract by the contractor”, as distinct from the other more specific conditions.

The relative strengths of the claims[42]

  1. [37]
    The Homeowners succeeded in setting aside the decision, however this is not determinative. 
  2. [38]
    The Homeowners contend that their case was strong as this was not a case of a single or technical breach but rather there were many complaints for which I found that the Contractor had repudiated the contract. However, they did not succeed on all matters they sought to rely upon.
  3. [39]
    The QBCC contends, and I accept, that it was not making claims or actively seeking to defend the decision, rather, it was discharging its statutory obligations to assist the Tribunal.[43] While a review proceeding about a claim against the SIS has some commercial flavour, the QBCC also has a statutory obligation to administer the QBCC Act to ensure that industry standards are maintained and achieve a reasonable balance between the interests of building contractors and consumers.[44] The QBCC is required to conduct proceedings as a model litigant.  It must not be reticent in discharging its statutory obligations for fear of adverse costs orders.
  4. [40]
    The QBCC contends, and I accept, that the QBCC in making its decision did not have the benefit of a full hearing where the evidence was able to be tested and did not have the benefit of all the evidence, including expert evidence ultimately before the Tribunal when making its decision.
  5. [41]
    I found that the Contractor:
    1. as of 19 December 2017, when the December Notice was given:
      1. was in substantial breach of its obligations to progress the works under clause 3.1(a) and clause 17.3 of the Contract because it had unreasonably failed to perform the works diligently and unreasonably failed to maintain reasonable progress. The delay was unreasonable in the circumstances.[45]
      2. was in substantial breach of its obligations to carry out the work under the Contract competently in failing to carry out the works in compliance with approved plans[46] and failing to claim EOTs in accordance with the terms of the Contract and its obligations under schedule 1B of the QBCC Act.[47]
    2. as of 8 January 2018, when the Notice to Terminate was given, had not remedied or commenced to remedy those breaches so that the Homeowners were entitled to terminate the Contract by notice that day.[48]
  6. [42]
    It was necessary to consider the various causes of claimed delay to determine if the Contractor’s delay was unreasonable in the circumstances.[49] I did not accept that all delays by the Contractor, relied upon by the Homeowners, caused delay to achieving practical completion.[50] 
  7. [43]
    I was not satisfied that:
    1. all matters relied upon by the Homeowners demonstrated that the Contractor was in substantial breach as of 19 December 2017 of its obligations to carry out the work under the Contract competently.
    2. the Contractor was in breach of its obligations as of 19 December 2017 as contended for by the Homeowners:
      1. not to unreasonably fail to replace defective work or materials.[51]
      2. to hold the current, active and appropriate licence to perform the work under the Contract.[52]
      3. to comply with the continuous indemnity provided by clause 11.1 of the Special Conditions of Contract.[53]
  8. [44]
    I accepted that the Contractor’s breaches and conduct, as found, when viewed collectively constituted repudiation, which the Homeowners accepted to properly terminate.[54] 
  9. [45]
    The Homeowners were not successful on all matters upon which they relied.[55] The number of issues raised by the Homeowners contributed to the complexity of the proceedings and no doubt the costs incurred by all parties.
  10. [46]
    The Homeowners ultimately sought an order that their claim under the SIS be accepted. I was not satisfied that I was able to make findings that all of the terms of the Policy had been satisfied and so returned the matter to the QBCC for reconsideration.[56]
  11. [47]
    The Homeowners contend that the QBCC’s role is analogous to that of a commercial insurer, who is seeking to defend its rejection of a claim. The QBCC dispute this. It points to the statutory requirement that:
    1. it ‘must ensure that the statutory insurance scheme is managed in accordance with actuarially sustainable principles so that the amounts paid into the Insurance Fund under section 26 (2) will be sufficient to satisfy the amounts to be paid from the Insurance Fund under section 26(3).’
    2. it must administer the SIS pursuant to its obligations to administer the QBCC Act and to further the objects of the QBCC Act[57] including the objects to achieve a reasonable balance between the interests if building contractors and consumers.[58]
    3. it is required to use its best endeavours to help the Tribunal so that it can make its decision on the review.[59]
  12. [48]
    Although there is an element of a commercial flavour to reviews of decisions to refuse a claim against the SIS, I accept that the statutory obligations placed upon the QBCC distinguishes it from a purely commercial insurer seeking to uphold its rejection of a claim under a policy. 
  13. [49]
    I am not satisfied that this is a case where there was an obvious point in the proceedings, prior to the close of evidence at the final hearing, where the QBCC ought to have reconsidered the decision because it was, or should have been, evident that the Contractor had been in substantial breach and had repudiated, thereby bringing the proceedings to an earlier end.
  14. [50]
    In circumstances where the Contractor was a party to the proceedings and contending that the Contract was not properly terminated any reconsidered decision would likely have been met with a challenge by the Contractor and a continuation of the proceedings or the commencement of separate proceedings, involving the same parties.  As referred to earlier in these reasons, Mr De Marco continues to maintain that the claim against the SIS should be declined.

Whether the Homeowners were afforded natural justice by the QBCC decision maker?

  1. [51]
    This is not a factor sought to be relied upon.  

Whether the Homeowners genuinely attempted to enable and assist the QBCC to make the decision on the merits?

  1. [52]
    The QBCC submits that the Homeowners put forward documents in support of their position that they had lawfully terminated.

The financial circumstances of the parties[60]

  1. [53]
    I am not satisfied that this is a factor in favour of an award of costs.  
  2. [54]
    The Homeowners point to the QBCC being a government agency with as much financial resources as the government chooses to give it. The Homeowners have not provided any evidence as to their financial circumstances. The contract price for the construction of the home, the subject of the dispute, was more than $3,700,000.00. This indicates that the Homeowners have significant financial resources.
  3. [55]
    The QBCC contends that if costs are awarded against it there may be access to justice issues as costs awards are funded not through the SIS[61] but rather through the general statutory fund[62] which provides funds to meet the QBCC’s operating costs of discharging its functions.  I accept that an award of costs will necessarily reduce funds available for that purpose.
  4. [56]
    The Homeowners refer to decisions of the Tribunal, which found that:
    1. the costs of litigating claims would be costs of administering the SIS and paid out of the ‘premiums paid by owner.’[63] The QBCC deny that costs orders are paid from the SIS and claim that the learned Member made those findings without the benefit of specific submissions, which would have corrected this misunderstanding.
    2. the QBCC would not suffer material hardship if an order for costs were made against it.[64] The QBCC in this matter has not, as I understand it, advanced a submission of hardship but rather contend, and I accept, that if costs are awarded then there will be less funds to apply to other expenses.

Anything else the Tribunal considers relevant[65]

  1. [57]
    The Homeowners submit that their success ought not be eroded by their legal costs.  I accept that this is a factor in favour of an award of costs.
  2. [58]
    The Policy provides that the maximum amount payable under it is $200,000.00 if all conditions are satisfied.[66] I did not decide that all conditions had been satisfied. The issue determined was a threshold question i.e. whether the Homeowners had properly terminated entitling them to claim on the SIS.
  3. [59]
    Mr Rodighiero gave evidence that the Homeowners have incurred costs of approximately $177,163.85 (incl GST) in respect of this proceeding:
    1. $154,039.63 (incl GST) in respect of legal costs payable to Carter Newell including counsel’s fees in the sum of $48,306.50 (incl GST); 
    2. $8,706.50 (incl GST) in respect of expert’s fees;
    3. $3,686.76 (incl GST) in respect of transcript fees;
    4. $830.96 (incl GST) in respect of filing fees, search fees and travel fees; and
    5. an estimated amount of $9,900.00 (incl GST) for legal costs payable to Carter Newell and counsel in preparing the costs application. [67]
  4. [60]
    The Homeowners contend that the Contractor is impecunious and that there is little prospect of financial redress against it in a domestic building dispute proceeding or otherwise.  In view of Mr De Marco having entered bankruptcy and the Contractor no longer being licensed it is quite likely that the Contractor has few, if any, assets. 
  5. [61]
    Often, a relevant factor is whether a settlement offer was made, and that the decision of the Tribunal is not more favourable to the other party than the offer.[68]  In the present case, there is no evidence of the terms of any offers to settle. 
  6. [62]
    The Homeowners seek legal costs associated with the application for costs thrown away, which application was determined as part of my decision of 11 September 2023. That application sought the expert’s fees. The submissions do not address the appropriateness of seeking those costs now as distinct from at the time.
  7. [63]
    As referred to earlier in these reasons, costs were incurred by all parties, including the Homeowners, in relation to the Homeowners pursuit of a number of ultimately unsuccessful claims.  I take this into account in considering the extent to which costs have eroded the potential benefit to the Homeowners from setting aside the decision.

Conclusion

  1. [64]
    On balance, in the circumstances of this proceeding, I am not satisfied that the interests of justice require the Tribunal to make an award of costs against the QBCC.  
  2. [65]
    The QBCC did not engage in a ‘spirited defence’ of the decision.[69] It performed its statutory obligations to assist me in the merits review to reach the correct and preferable decision.[70] The contest was largely between the Homeowners and the Contractor as to whether the Homeowners had validly terminated the Contract.  While ultimately successful in setting aside the decision under review, many of the arguments advanced by the Homeowners, each of which no doubt contributed to the significant costs incurred by the Homeowners, were not supported on the evidence before me. 
  3. [66]
    I am not satisfied that the factors clearly support the award of costs against the QBCC.  I decline to exercise my broad discretion to award costs against the QBCC in these circumstances.

Footnotes

[1] Yeo & Anor v Queensland Building and Construction Commission & Anor [2023] QCAT 367.

[2]  Application for miscellaneous matters filed 13 October 2023.

[3]  QBCC submissions filed 29 January 2024; Homeowners’ submissions and evidence in reply filed 12 February 2024; QBCC’s further submissions and evidence filed 8 May 2024.

[4]  Email dated 10 October 2023.

[5]  Application for miscellaneous matters filed 9 December 2024.

[6]  Homeowners’ submissions filed 20 January 2025 and 11 February 2025; QBCC’s submissions filed 6 February 2025 (emailed 5 February 2025) and 12 February 2025; Mr De Marco’s submissions filed 4 February 2025, which again submits that the decision made 11 September 2023 is in error and does not directly address the costs application.

[7] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 100.

[8]  Ibid, s 102.

[9]  [2010] QCAT 364.

[10]  Ibid, [9].

[11]  [2005] 2 Qd R 101.

[12]  [2020] QCAT 365 [36]-[37].

[13]  [2024] QCA 235.

[14]  Ibid, [50].

[15]  Ibid, [21].

[16]  Ibid, [22].

[17]  Ibid, [31].

[18]  Ibid, [32].

[19]  Ibid, [62].

[20]  [2010] QCAT 412.

[21]  [2024] QCA 235 [64].

[22]  Ibid, [52].

[23]  Ibid, [53].

[24]  Ibid, [76].

[25]  Ibid, [72].

[26] Queensland Building and Construction Commission v B&L Constructions Qld Pty Ltd (No 2) [2023] QCATA 107, [6], [44].

[27]  QCAT Act (n 7), s 102(3)(a).

[28]  Homeowners’ submissions filed 12 February 2024 [14].

[29]  Ibid, [15].

[30]  Affidavit David Rodighiero, exhibits DJR 5 and DJR6 filed 12 February 2024.

[31]  Ibid, exhibit DJR 8.

[32]  Statement of Leean Tyler filed 8 May 2024.

[33]  [2011] QCAT 120, [10]-[11].

[34]  Filed 26 October 2018.

[35]  Reasons, [11].

[36]  [2023] QCAT 367, [262].

[37]  Ibid, [258].

[38]  QCAT Act (n 7), s 102(3)(b).

[39] Fuge v Queensland Building and Construction Commission [2014] QCAT 383 [21].

[40]  Letter from QBCC to the Tribunal dated 26 September 2018.

[41]  [2010] QCAT 412.

[42]  QCAT Act, (n 7) s 102(3)(c).

[43]  Ibid, s 21.

[44] Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), s 7, s 3.

[45] Yeo & Anor v Queensland Building and Construction Commission & Anor [2023] QCAT 367 [101].

[46]  Ibid, [199].

[47]  Ibid, [202].

[48]  Ibid, [98], [101], [194],

[49]  Ibid, [123].

[50]  Ibid, [148].

[51]  Ibid, [216].

[52]  Ibid, [226].

[53]  Ibid, [229].

[54]  Ibid, [235], [245]-[247], [250]-[251], [253], [255].

[55]  Ibid, [184], [188], [203], [215], [216].

[56] Yeo & Anor v Queensland Building and Construction Commission & Anor [2023] QCAT 367 [262].

[57]  QBCC Act, (n 47) s 7.

[58]  Ibid, s 3(a)(ii).

[59]  QCAT Act (n 7), s 21(1).

[60]  Ibid, s 102(3)(e).

[61]  Ibid, s 26.

[62]  Ibid, s 25.

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

[64] Campbell v Queensland Building and Construction Commission (No 2) [2023] QCAT 54.

[65]  QCAT Act (n 7), s 102(3)(f).

[66]  SOR1, Part 6.

[67]  Affidavit filed 13 October 2023.

[68]  QCAT Act (n 7), s 105; Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 86.

[69]  [2024] QCA 235, [72].

[70]  QCAT Act (n 7), s 21.

Close

Editorial Notes

  • Published Case Name:

    Yeo & Anor v Queensland Building and Construction Commission & Anor

  • Shortened Case Name:

    Yeo & Anor v Queensland Building and Construction Commission

  • MNC:

    [2025] QCAT 90

  • Court:

    QCAT

  • Judge(s):

    Member Deane

  • Date:

    10 Mar 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
Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364
2 citations
Jump To
Cite 1 - [2010] QCAT 364
Cite 2 - [2010] QCAT 364
Campbell v Queensland Building and Construction Commission (No 2) [2023] QCAT 54
2 citations
Jump To
Cite 1 - [2023] QCAT 54
Cite 2 - [2023] QCAT 54
Cowen v Queensland Building and Construction Commission [2021] QCATA 103
2 citations
Jump To
Cite 1 - [2021] QCATA 103
Cite 2 - [2021] QCATA 103
Fuge v Queensland Building and Construction Commission [2014] QCAT 383
2 citations
Jump To
Cite 1 - [2014] QCAT 383
Cite 2 - [2014] QCAT 383
Health Ombudsman v du Toit [2024] QCA 235
4 citations
Jump To
Cite 1 - [2024] QCA 235
Cite 2 - [2024] QCA 235
Cite 3 - [2024] QCA 235
Cite 4 - [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
Queensland Building and Construction Commission v B&L Constructions Qld Pty Ltd (No 2) [2023] QCATA 107
2 citations
Jump To
Cite 1 - [2023] QCATA 107
Cite 2 - [2023] QCATA 107
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
3 citations
Jump To
Cite 1 - [2010] QCAT 412
Cite 2 - [2010] QCAT 412
Cite 3 - [2010] QCAT 412
Robertson & Robertson v Airstrike Industrial Pty Ltd [2011] QCAT 120
2 citations
Jump To
Cite 1 - [2011] QCAT 120
Cite 2 - [2011] QCAT 120
Tamawood Ltd v Paans[2005] 2 Qd R 101; [2005] QCA 111
2 citations
Jump To
Cite 1 - [2005] 2 Qd R 101
Cite 2 - [2005] 2 Qd R 101
Yeo v Queensland Building and Construction Commission [2023] QCAT 367
5 citations
Jump To
Cite 1 - [2023] QCAT 367
Cite 2 - [2023] QCAT 367
Cite 3 - [2023] QCAT 367
Cite 4 - [2023] QCAT 367
Cite 5 - [2023] QCAT 367

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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