Exit Distraction Free Reading Mode
- Unreported Judgment
Olindaridge Pty Ltd & Wagner v Tracey QCATA 175
Olindaridge Pty Ltd & Wagner v Tracey  QCATA 175
Olindaridge Pty Ltd
Rodney Keith Wagner
Todd Anthony Tracey
28 October 2015
Senior Member O'Callaghan
15 December 2015
APPEAL – COSTS – where appeal in a building dispute allowed because of error of law – where proceeding remitted to the Tribunal for rehearing – whether either party should be granted costs of appeal proceedings
Queensland Building and Construction Commission Act 1991 (Qld), s 77, schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ch 2 pt 1 div 6, s 6, s 7, s 26, s 100, s 102, s 107
Latoudis v Casey (1990) 170 CLR 534
Lyons v Dreamstarter Pty Ltd  QCATA 142
Mac Developments (Gold Coast) Pty Ltd v Rams Financial Group Pty Ltd  QSC 477
Oshlak v Richmond River Council (1998) 193 CLR 72
Ralacom v Body Corporate for Paradise Island Apartments (No 2)  QCAT 412
Tamawood Ltd & Anor v Paans  QCA 111
West Wake Price and Co v Ching  1 WLR 45
Mr R Ensbey, solicitor, CBP Lawyers appeared for the applicants
Ms Martha-Lee Tracey appeared for the respondents
REASONS FOR DECISION
- Olindaridge Pty Ltd (‘Olindaridge’) and Mr Wagner appealed a decision of the Tribunal in BDL 136-11 (‘the BDL File’) which awarded the Traceys an amount of $98,600.00 in respect of a building dispute. The Traceys suffered from termite damage. The appeal was successful, because the learned Member had made several errors of law. The matter was remitted to the Tribunal and on the first day of the scheduled re-hearing of the matter, the parties reached a resolution. Orders were made by consent by the Tribunal to the effect that Olindaridge and Mr Wagner pay the sum of $30,000.00 to the Traceys and that there be no order as to costs.
- Both Olindaridge and Mr Wagner and the Traceys have now made cross-applications for costs of the appeal. Olindaridge and Mr Wagner seek their costs on the Magistrate’s Court Scale for claims over $50,000.00. They seek orders that costs be paid as agreed or otherwise as taxed. The Traceys seek costs in the sum of $11,000.00, being the amount of an invoice received from Bernard Knapp Lawyers, which they say relates to the appeal, as well as an amount of some $46,000.00, for various amounts which appear to relate to the BDL File.
- Olindaridge and Mr Wagner say that they are entitled to their costs, because they were successful on the appeal. They submit that the proceeding is a building dispute, notwithstanding that costs are sought in the appeal proceedings. Further, they submit that the application for costs (in a building proceeding), must be determined under the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), rather than the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). In the alternative, they seek costs under s 102 of the QCAT Act.
- The Traceys argue that the agreement that there be no order as to costs in the BDL File extended to this appeal proceeding. However, the orders do not reflect that the agreement extended beyond the BDL File. Further, there has not been an application for correction of the orders made by consent.
- That said, because the costs application has been made in the appeal file by Olindaridge and Mr Wagner, the Traceys argue that costs should be awarded to them under s 102 of the QCAT Act, because the interests of justice require it. In essence, they say that they have been forced to bring and respond to various proceedings in the Tribunal, and still have a defective house. This has left them, they submit, in an impecunious position such that they will have to declare themselves bankrupt if costs are awarded against them. Further, they submit that an award was made to them (albeit by consent ultimately) in the building proceeding relating to the issues concerned. They argue that the agreement that there be no order as to costs in the BDL File, extended to this appeal proceeding.
Which legislation governs the Tribunal’s power to award costs in the proceeding?
- Subject to the QCAT Act and enabling Acts, each party generally bears their own costs. The Appeal Tribunal has said this amounts to a strong contra-indication against costs being awarded in Tribunal proceedings generally.  However, the Tribunal may make an award of costs where it is in the interests of justice to do so. In deciding whether to award costs under the QCAT Act, the tribunal may have regard to specified factors.
- The QBCC Act is an enabling Act under the QCAT Act, which confers jurisdiction on the Tribunal. Section 77 of the QBCC Act provides that a person involved in a building dispute may apply to QCAT to decide the dispute. The Tribunal’s powers to resolve the dispute include a power to award costs. In Lyons v Dreamstarter Pty Ltd, the Appeal Tribunal held that in building proceedings, the Tribunal has a broad general discretion under s 77 of the QBCC Act to award costs as are justified in the particular circumstances. The discretion, it said, must be exercised judicially, ‘upon facts connected with or leading up to the litigation’. As a matter of construction, s 77 of the QBCC Act is a modifying provision, which prevails over the QCAT Act provisions to the extent of the inconsistency. There is no strong contra-indication in s 77 against a costs order: broadly speaking, costs may be awarded, if an award is justified in the relevant circumstances.
- Building dispute is defined in the QBCC Act to include a domestic building dispute.  A domestic building dispute is defined to include a claim or dispute arising between a building owner and building contractor about performance of domestic building work or a contract for the performance of reviewable domestic building work that is covered by the relevant legislation. As there is no dispute that the work here fell within the Tribunal’s jurisdiction, we do not need to consider the limitations.
- Olindaridge and Mr Wagner submit in essence, (based on constructions of claim adopted in other proceedings not concerning building disputes), that a claim or dispute (which is not defined) ‘may mean the assertion of …a right itself’, (which attaches to the object claimed, rather than the cause of action, which supports it). They argue that the claim or dispute determined by the Appeal Tribunal arose between a building contractor and a building owner and related to the performance of reviewable domestic building work as well as the contract for same. Accordingly, they submit that costs in the appeal proceedings are to be considered under the QBCC Act.
- Notwithstanding that the original proceeding was in the Tribunal’s original jurisdiction under s 77 of the QBCC Act, the appeal was conducted in the Tribunal’s appeal jurisdiction. Does this alter the characterisation of the proceeding? Was the appeal determined as part of a building dispute?
- The Appeals Tribunal had jurisdiction for the appeal only because of its jurisdiction under the QBCC Act to decide a building dispute on the application of a person involved in the building dispute. We accept that a claim or dispute between a building owner and building contractor within the definition of domestic building dispute, must therefore necessarily include an appeal in relation to the claim or dispute. As Olindaridge and Mr Wagner submit, as a matter of construction, claim or dispute is not determined by the cause of action, rather its nature as a building dispute as defined. Therefore, if a claim or dispute is a building dispute, it remains a building dispute whether considered in the Tribunal’s original or appeal jurisdiction.
- Therefore, the Appeals Tribunal’s power to award costs arises under s 77 of the QBCC Act.
Should costs be awarded to either party in this proceeding under the QBCC Act?
- In relation to the building dispute, the outcome, albeit ultimately by way of consent orders, was favourable to the Traceys. They received the sum of $30,000 from Olindaridge and Mr Wagner.
- Olindaridge and Mr Wagner submit that this is irrelevant to the determination of their application for costs on the appeal proceedings. They argue that they were successful on appeal. Although their success was due to error by the Tribunal, they submit that the appeal was vigorously opposed by the Traceys. As a consequence, they incurred significant costs in the appeal proceedings. Accordingly, they argue that they are entitled to their costs. Any sympathy that the Appeal Tribunal may have for the Traceys situation is, they argue, irrelevant because according to law, a successful party is generally entitled to its costs.
- The Traceys submit that they understood the consent orders in the BDL File, which provided for no order as to costs, settled all issues in the entire proceeding, including the appeal costs. They say that because of the appeal they incurred some $11,000 legal costs, and a further $46,000 costs in the proceedings generally. They submit that it would be an injustice to them if Olindaridge and Mr Wagner were awarded costs. They say that they were faced with some 14 applications (including 3 strike out applications) as a result of the building dispute because of the manner in which Olindaridge and Mr Wagner conducted themselves. In light of the application for costs made against them, they now seek their costs of the entire proceeding.
- We have accepted the argument made by Olindaridge and Mr Wagner that the proceedings in their entirety (that is, the proceedings heard in the original BDL File and the appeal files) involve a building dispute. They now ask us to decide costs in this appeal, which is part of the overall building dispute, in isolation. We are not satisfied that this approach is in the interests of justice. Had we been considering the costs application without knowledge of the overall outcome of the proceedings, in all likelihood, we may have reserved costs of the appeal, awaiting the outcome, or made orders that the costs were to be effectively costs in the cause (so that any order for costs on the BDL File would include the costs of the appeal).
- The Court of Appeal has held that in considering a costs application, it is not in the interests of justice for a party’s success in proceedings to be eroded by not making a costs order in their favour. In these overall proceedings, the Traceys, by virtue of agreement between the parties, are the successful party. Their success would be substantially eroded by making a costs order in favour of Olindaridge and Mr Wagner. We are not satisfied that we should exercise our discretion to award costs to Olindaridge and Mr Wagner.
- The Traceys now also cross-apply for costs, seeking all of their costs relating to, not only the appeal, but the entire proceedings. However, they make this application acknowledging that they agreed, and the Tribunal made orders by consent in the BDL File, that there be no order as to costs, which they understood to have the effect that each party bears their own costs. They say they understood that this agreement (and order) related to the appeal proceedings as well, although the consent orders made by the Tribunal do not extend to the costs of the appeal.
- On the basis of the consent orders made in the BDL File, the costs sought by the Traceys in respect of the proceedings of some $46,000 have been specifically dealt with by way of final consent orders. There has been no appeal in relation to the consent orders. The Traceys’ application for costs in respect of the costs, which do not relate to the appeal, is not properly before this Appeal Tribunal. It has been considered and finalised in the BDL proceeding. It must fail as concerns these costs.
- We turn to consider the Traceys’ application for $11,000 of costs, which are said to relate the appeal. They were ultimately (although only partly) successful in the building dispute. The submissions they make are to the effect that they have incurred many costs because of the manner in which Olindaridge and Mr Wagner have conducted themselves in the proceedings generally, rather than in this appeal. These are relevant factors in the circumstances. However, the Traceys believed they were settling their overall building dispute on the basis of the consent orders made in the BDL File. They were not successful to the full extent of their claim. Nor were they successful in resisting the appeal. We are not satisfied that the circumstances justify the exercise our discretion to make a costs order in their favour.
- We dismiss both applications for costs.
 Indeed, there was a subsequent application by the Traceys on the BDL File about costs.
 QCAT Act, s 100.
 Ralacom v Body Corporate for Paradise Island Apartments (No 2)  QCAT 412, at .
 QCAT Act, s 102(1).
 Ibid, s 102(3).
 Ibid, s 6(2).
 QBCC Act s 77(3)(h).
  QCATA 142, at para [33-38].
 Ibid at  citing Oshlak v Richmond River Council (1998) 193 CLR 72, at 88.
 Ibid at  quoting from Latoudis v Casey (1990) 170 CLR 534, at 557.
 QCAT Act, s 7.
 QBCC Act, Schedule 2 ‘building dispute’.
 Reliance is placed on Mac Developments (Gold Coast) Pty Ltd v Rams Financial Group Pty Ltd  QSC 477 at  referring to West Wake Price and Co v Ching  1 WLR 45.
 QCAT Act, Ch 2 Pt 1 Div 4, s 26.
 Tamawood Ltd & Anor v Paans  QCA 111.
 See also the Tribunal’s conclusion in its reasons for decision dated 10 January 2015 on BDL 136-11 regarding the subsequent miscellaneous application for costs that the effect of its earlier consent orders was to settle costs on the basis that each party bear their own costs.
- Published Case Name:
Olindaridge Pty Ltd & Wagner v Tracey
- Shortened Case Name:
Olindaridge Pty Ltd & Wagner v Tracey
 QCATA 175
Senior Member O'Callaghan, Member Howard
15 Dec 2015