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The Licensee Pty Ltd v Queensland Building and Construction Commission[2021] QCATA 7

The Licensee Pty Ltd v Queensland Building and Construction Commission[2021] QCATA 7

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

The Licensee Pty Ltd v Queensland Building and Construction Commission [2021] QCATA 7

PARTIES:

THe Licensee pty ltd

(applicant/appellant)

v

queensland building and construction commission

(respondent)

APPLICATION NO:

APL213-19

ORIGINATING

APPLICATION NO:

GAR029-19

MATTER TYPE:

Appeals

DELIVERED ON:

20 January 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard

Member Traves

ORDERS:

  1. Leave to appeal is granted.
  2. The appeal is allowed.
  3. The decision of the Tribunal dated 12 August 2019 is set aside and substituted with a decision that The Licensee Pty Ltd satisfied the Minimum Financial Requirements as at 31 December 2018;
  4. Any references to the decision, including to the two stays of the decision, must be removed from the QBCC Register within 7 days of this Order.
  5. The Queensland Building and Construction Commission must pay the costs of The Licensee Pty Ltd for the proceedings at first instance and on appeal, fixed at $134,475.50, by:

4:00pm on 22 February 2021.

  1. GS, GF and PG are hereby released from undertakings given to the Tribunal to be personally liable for any debt of The Licensee Pty Ltd incurred from 12 August 2019 until the determination of these proceedings.

APPEAL – PROFESSIONS AND TRADES – BUILDERS – LICENCES AND REGISTRATION – where Tribunal confirmed decision to suspend licence because of failure to meet minimum financial requirements – construction of MFR Policy – where Tribunal made error in construing the MFR Policy – where the Queensland Building and Construction Commission concedes the original decision made by the Commission on 8 January 2019 to suspend the applicant’s building licence was made in error – where the Queensland Building and Construction Commission concedes that the appeal should be allowed and the decision of the Tribunal set aside – where leave to appeal and appeal allowed – whether costs should be awarded to the applicant.

Queensland Building and Construction Commission Act 1991 (Qld) s 35, s 48

Queensland Building and Construction Commission (Minimum Financial Requirements) Regulation 2019 (Qld), s 24

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 21(1), s 100, s 102, s 102(3), s 105,s 107

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 86, r 87

McGee v Queensland Building and Construction Commission [2018] QCATA 124

Partington v Urquhart (No 4) [2019] QCATA 96

Queensland Racing Integrity Commission v Vale [2017] QCATA 110

Tamawood Ltd v Paans [2005] 2 QdR 101

The Licensee v Queensland Building and Construction Commission [2019] QCAT 224

The Sands Gold Coast Pty Ltd v The Body Corporate for the Sands CT 14967 [2020] QCATA 105

TLL Investment Pty Ltd v The Body Corporate for the Grange CTS 30993 (No 2) [2018] QCAT 444

REPRESENTATION:

 

Applicant:

BWJ Kidston, counsel, instructed by Hall Lawyers

Respondent:

T. Schmitt, counsel, instructed by QBCC Legal Services

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    The Licensee Pty Ltd (The Licensee), the appellant, as trustee for a trust, carries on business undertaking building work for a profit. The Licensee was incorporated in 2006 by GS and GF. From 2006, The Licensee has been licensed with the Queensland Building and Construction Commission (QBCC) for the license class ‘Carpenter’.
  2. [2]
    On 8 January 2019, the QBCC made a decision to suspend The Licensee’s licence pursuant to ss 35 and 48 of the Queensland Building and Construction Commission Act 1991 (QBCC Act), for what it considered to be a failure to meet the Minimum Financial Requirements (MFR) necessary to hold that licence (the decision).
  3. [3]
    On 14 January 2019, The Licensee applied to the Tribunal to review the decision and for an order staying the decision pending determination of its application. An interim stay was granted on the papers and on 7 February 2019, following a contested hearing, a stay was granted. An order was also made at that time requiring the QBCC to set out the grounds upon which it contended The Licensee failed to satisfy the MFR. This was done by email dated 16 May 2019.
  4. [4]
    By the time of the review hearing on 20 and 21 May 2019, the hearing grounds were confined to those concerning the status of loans by The Licensee to GF and his wife (loans A and B in the Reasons) in the sum of $295,718.00 and to PG (loan C in the Reasons) in the sum of $63,755.00. The grounds were that each of the said loans were uncollectible because they have insufficient collectable assets.
  5. [5]
    On 12 August 2019, the learned primary Member made an order confirming the decision and published the Reasons.
  6. [6]
    On 15 August 2019, The Licensee filed an application for leave to appeal or appeal and an application for a stay of the order.
  7. [7]
    On 19 August 2019, an interim stay of the order was granted by the Appeal Tribunal on the papers and further directions were made for the exchange of outlines by the parties. On 18 October 2019, following an oral hearing, the Appeal Tribunal granted the stay.
  8. [8]
    On 12 November 2019, the QBCC sent without prejudice correspondence to the appellant with an offer open for acceptance until 19 November 2019. On 20 November 2019, the QBCC filed an application seeking an order that the Commission be invited to reconsider its decision dated 8 January 2018. On 6 December 2019, the QBCC received a response in respect of that application, with an offer open for acceptance within 7 days. On 11 March 2020, the Tribunal dismissed the application seeking an order that the Commission reconsider its decision.
  9. [9]
    On 25 June 2020, the QBCC filed contentions conceding each of the 9 grounds of appeal and accepting that the Tribunal’s decision at first instance should be set aside. In response to the contentions, directions were made seeking submissions about the further conduct of the proceedings. Both parties submitted that a hearing on the papers was appropriate and each made submissions as to costs.
  10. [10]
    The Licensee seeks its costs of the proceedings at first instance and the Appeal on the basis that it is in the interests of justice that such costs orders are made pursuant to s 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). The QBCC submits that costs should not be awarded against it in respect of the proceeding at first instance or on appeal, in a fixed sum or as assessed.
  11. [11]
    In view of the position adopted by the QBCC in relation to the appeal proceeding and for the reasons explained, we grant leave to appeal and allow the appeal. We also set aside the decision of the Tribunal of 12 August 2019. In substitution, we make orders to the effect that The Licensee satisfied the MFR at 31 December 2018 and for the QBCC to pay The Licensee’s costs on a standard basis in a fixed sum. We also order that the QBCC pay The Licensee’s costs of the appeal proceeding on a standard basis in a fixed sum.

The application for leave to appeal and appeal

  1. [12]
    Whether the licence of The Licensee ought to have been suspended depended upon the proper construction of the MFR Policy and its application to The Licensee. The parties each had different interpretations of the MFR Policy. The QBCC’s position was that The Licensee did not meet the minimum financial requirements of the MFR Policy because it formed the view (which The Licensee disputed) that two related company loans were not collectible. To be included as a current asset, a related entity loan had to be collectible.
  2. [13]
    “Collectible” is defined for related entity loans to mean the related entity has net current assets and net tangible assets as at balance sheet date sufficient to repay the loan in full. Although the definition refers to ‘net current assets AND net tangible assets’ the QBCC focussed only on current assets.[1]
  3. [14]
    The QBCC maintained its position at first instance in observance of its duty to assist the Tribunal under s 21(1) of the QCAT Act.
  4. [15]
    The QBCC now concedes that the learned Member erred in her interpretation of the MFR Policy.
  5. [16]
    We note that the Tribunal, in granting a stay, ordered the QBCC, in effect, to set out the grounds upon which it contended The Licensee failed to satisfy the MFR Policy by 8 February 2019. On 16 May 2019, the QBCC emailed The Licensee 4 grounds which relevantly included:

The loan [redacted] [$295,718] is uncollectable because they have insufficient collectible assets.

…

The loan to [redacted] [$63,755] is uncollectable because he has insufficient collectable assets.[2]

  1. [17]
    In an affidavit of 19 March 2019, Mr Anthony Diacos states:

I have covered this issue exhaustively in my previous affidavits and communications with the respondent. I have explained this time and time again and provided them with actual definitions within their own policy documentation. There is no doubt in my mind from my over 20 years experience as an accountant that the related loans are collectible….

…

In relation to the respondents request that the related parties categorise their assets and liabilities into current and non-current assets and liabilities as at 31 December 2019, I do not understand why this is requested because it is my understanding that it is not required under the respondent’s own policy documentation. I have attempted to explain this previously to the respondent on a number of occasions (see for example page 6 of the exhibit marked CMH-1 to Mr Halls affidavit and paragraphs 6-12 of my affidavit sworn 11 January 2019) but to no avail.

In the hope that the respondent will stop pursuing the applicant in circumstances where I have maintained since August 2018 that the applicant complies with the MFR requirement I have prepared a balance sheet of the [redacted] separating the assets of that group into current and non-current assets and liabilities as at 31 December 2018….

  1. [18]
    At the time of the hearing, the reasons relied upon by the QBCC had narrowed to disputing the categorisation of 2 related entity loans as current assets for the purposes of calculating the licensee’s current ratio.[3] The loans were:
    1. (a)
      a Related Entity loan from the Licensee to GF and his wife in an amount of $295,718.00; and
    2. (b)
      a Related Entity loan to PG in the sum of $63,755.00.
  2. [19]
    The learned Member clearly understood the submissions being made regarding the meaning of “collectible”, but held:

I do not accept the proposition put by the Licensee that it is immaterial when a Related Entity loan is to be repaid for the purpose of the Current Ratio calculation. I do not accept that the Related Entity loan must only be collectible, in the sense of the Related Entity having a positive net asset position, to be categorised as a Current Asset for the purpose of the calculation. If a Related Entity loan is to be categorised as a Current Asset it must be realisable within 12 months of the reporting period. I will explore this issue in more detail later in this analysis.[4]

  1. [20]
    Further, the learned Member states:

Section 4 provides:

Related Entity loans and/or investments included as current assets must be collectible and convertible into cash as at balance date.

This requirement appears as a new paragraph under the definition of Current Asset. I interpret it as an aid in the classification of a Related Entity loan as a Current Asset. It represents a further requirement beyond the definition of Current Asset. The requirement tests the credibility of categorising a Related Entity loan as a Current Asset.

I do not accept, as the Licensee submits, that the reference to Related Entity loans is read in isolation from the definition of Current Asset and that no time frame is imposed on repayment of a Related Entity loan.[5]

  1. [21]
    These findings were made in reliance upon the submissions of the QBCC at first instance. The QBCC has, by its actions, since accepted that those submissions were incorrect.
  2. [22]
    The QBCC now accepts that the decision under appeal should be set aside. We agree.
  3. [23]
    We accept that the Tribunal erred in adopting the construction she did. We find that the two Related Entity Loans were able to be treated as Current Assets of The Licensee for the purpose of the Current Ratio calculation pursuant to s 4 of the MFR Policy as at 31 December 2018.
  4. [24]
    In light of QBCC’s position and the reasons set out, we grant leave to appeal and allow the appeal.

Costs of the proceedings

  1. [25]
    Chapter 2, Division 6 of the QCAT Act is concerned with costs.
  2. [26]
    Sections 100 and 102 provide:

100 Each party usually bears own costs

Other than as provided under this Act or an enabling Act, each party to a

proceeding must bear the party’s own costs for the proceeding.

…

102 Costs against party in interests of justice

  1. (1)
    The Tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the Tribunal considers the interests of justice require it to make the order.
  1. (2)
    However, the only costs the Tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.
  1. (3)
    In deciding whether to award costs under subsection (1) or (2) the Tribunal may have regard to the following--
  1. (a)
    whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);
  1. (b)
    the nature and complexity of the dispute the subject of the proceeding;
  1. (c)
    the relative strengths of the claims made by each of the parties to the proceeding;
  1. (d)
    for a proceeding for the review of a reviewable decision--
  1. (i)
    whether the applicant was afforded natural justice by the decisionmaker for the decision; and
  1. (ii)
    whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
  1. (e)
    the financial circumstances of the parties to the proceeding;
  1. (f)
    anything else the Tribunal considers relevant.
  1. [27]
    Section 105 provides:

105 Other power to award costs

The rules may authorise the tribunal to award costs in other circumstances, including, for example, the payment of costs in a proceeding if an offer to settle the dispute the subject of the proceeding has been made but not accepted.

  1. [28]
    Rule 86 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (QCAT Rules) provides:

86 Additional power to award costs if particular offers to settle rejected

  1. (1)
    This rule applies if—
  1. (a)
    a party to a proceeding, other than a proceeding for a minor civil dispute, makes another party to the proceeding a written offer to settle the dispute the subject of the proceeding; and
  1. (b)
    the other party does not accept the offer within the time the offer is open; and
  1. (c)
    in the opinion of the tribunal, the decision of the tribunal in the proceeding is not more favourable to the other party than the offer.
  1. (2)
    The tribunal may award the party who made the offer all reasonable costs incurred by that party in conducting the proceeding after the offer was made.
  1. (3)
    If a proceeding involves more than 2 parties, this rule applies only if the acceptance of the offer would have resulted in the settlement of the matters in dispute between all the parties.
  1. (4)
    In deciding whether a decision is or is not more favourable to a party than an offer, the tribunal must—
  1. (a)
    take into account any costs it would have awarded on the date the offer was given to the other party; and
  1. (b)
    disregard any interest or costs it awarded relating to any period after the date the offer was given to the other party.
  1. [29]
    Section 107 of the QCAT Act provides as follows:

107 Fixing or assessing costs

  1. (1)
    If the tribunal makes a costs order under this Act or an enabling Act, the tribunal must fix the costs if possible.
  1. (2)
    If it is not possible to fix the costs having regard to the nature of the proceeding, the tribunal may make an order requiring that the costs be assessed under the rules.
  1. (3)
    The rules may provide that costs must be assessed by reference to a scale under the rules applying to a court.
  1. [30]
    In allowing the appeal and making orders in substitution of the orders made by the Tribunal, the Appeal Tribunal has power to award costs in relation to the proceeding at first instance and on appeal.[6]
  2. [31]
    It is settled that the combined effect of ss 100 and 102 of the QCAT Act, absent any enabling Act provision that provides otherwise, is that ordinarily a party must bear their own costs of a proceeding in the Tribunal unless the Tribunal is satisfied that the interests of justice require it to make an order for costs. In exercising its discretion, the Tribunal may have regard to the factors in s 102(3). In any given case, the relative importance of each factor will vary.

Submissions of the applicant

  1. [32]
    The Licensee submitted that costs should be awarded in its favour. In brief, it submits that The Licensee had no option but to pursue the litigation with the QBCC which had wrongfully and unreasonably alleged The Licensee did not meet the MFR, in circumstances when it plainly did. The dispute by its nature was complex and legal representation was required, particularly given the consequences for The Licensee. The litigation was costly and took a great financial and personal toll on The Licensee and its directors. The Licensee sought costs in the original application and in its application for appeal. It also made repeated offers to settle throughout the course of the trial, expressly on the basis their rejection would be relied on in relation to the issue of costs.
  2. [33]
    The Licensee submitted that costs should include the costs of the interlocutory proceedings, including both stay applications. Further, that costs should be awarded on an indemnity basis and should be fixed. If the costs award is for standard costs, then they ought to be fixed. Alternatively, that a costs assessor be appointed pursuant to s 87 of the QCAT Rules, and costs be awarded on the Supreme Court scale.

Submissions of the respondent

  1. [34]
    The QBCC submitted that the costs at first instance and on appeal should be considered separately.
  2. [35]
    In relation to the costs of the proceedings at first instance, the QBCC submitted that, in the absence of a finding that the QBCC defended the application without a reasonable belief its decision was correct, the default position that each party bear its own costs should apply. This applies particularly where the Tribunal confirmed the QBCC’s decision at first instance. That the learned Member erred evidences that reasonable minds may differ as to the correct interpretation of the MFR Policy which must mean the QBCC cannot be said to have acted unreasonably.
  3. [36]
    In relation to the costs of the appeal, the QBCC submitted that, as the appeal was to be heard post-commencement of the new Queensland Building and Construction Commission (Minimum Financial Requirements) Regulation 2019 (Qld) (MFR Regulation) on 31 December 2019, the appeal lacked utility. The QBCC conceded the appeal on 30 March 2020, but the parties were unable to agree on the details of any negotiated position, including as to costs. The QBCC’s non-compliance with Tribunal Directions should be viewed in the context of those ongoing negotiations and the global pandemic which disrupted its business. While the QBCC acknowledges the complexity of the proceedings and the applicant’s financial circumstances, they are two of several factors relevant to the Appeal Tribunal’s discretion pursuant to s 102(3) of the QCAT Act.
  4. [37]
    Further, the QBCC submitted that, if costs are awarded, that should be on the standard basis only and using the District Court scale.

Should orders be made as to costs?

  1. [38]
    We accept that the issue of whether The Licensee should recover its costs of the appeal and its costs of the hearing at first instance, should be considered separately.

Costs at first instance

  1. [39]
    We accept that the ‘usual position’ is that parties are to bear their own costs unless the QCAT Act or an enabling Act provides otherwise. In McGee v Queensland Building and Construction Commission,[7] the Appeal Tribunal held:
  1. [24]As has been observed, s 100 and s 102 are contained in Chapter 2, Division 6 of the QCAT Act. In our view, when the statute is read as a whole, it is clear that the prima facie position is that parties are to bear their own costs unless the QCAT Act or an enabling Act provide otherwise. Indeed, the heading to s 100 expressly states that this is to be the “usual position”. This was the approach taken recently by the Queensland Court of Appeal in Medical Board of Australia v Wong where it was held:

Absent any finding of unreasonableness, there could not have been a basis for departing from the default position, according to s 100, that each party bear its own costs.

  1. [25]This is consistent with the position adopted in other equivalent State tribunals and is in contrast to the case in most superior courts where costs generally follow the event.
  1. [26]Section 100 is the first section in a Division dedicated to costs. It is prefaced with “other than as provided under this Act or an enabling Act”. These words indicate that the section contains the primary rule but that exceptions exist.[8]
  1. [40]
    We accept that this is a relevant factor, and turn to consider whether the position of the QBCC, as adopted at first instance, was unreasonable in some way, such that there is a basis for departing from the usual position in s 100 of the QCAT Act. The focus is whether the QBCC persisted in its position without a reasonable basis for doing so.
  2. [41]
    The QBCC submits that it remained a reasonable position ‘considering the decision made by the officer charged with the responsibility of administering the policy.’ This is particularly the case, the QBCC submits, in view of the objects of the MFR policy and of the QBCC Act. Further, it submits it was clearly reasonable in light of the Tribunal’s confirmation of its decision.
  3. [42]
    For the reasons explained above in discussing the appeal, it was necessary for The Licensee to initiate and pursue proceedings to establish that the position adopted by the QBCC was incorrect. Having done so, in circumstances where the QBCC has now abandoned its reliance on the contentions it earlier advanced, is a factor which weighs heavily in support of a conclusion that the interests of justice require that QBCC pay The Licensee’s costs of the hearing at first instance, including the costs of the successful stay application. Here, there are no other relevant factors which suggest otherwise. We find that the interests of justice require that a costs order be made in favour of The Licensee.
  4. [43]
    We consider the Appeal Tribunal is in a position to fix costs under s 107 of the QCAT Act based on Mr Hall’s affidavit in which he sets out the costs that have been incurred and calculates the likely quantum of an assessment of costs on the standard basis and on indemnity basis.[9] In accordance with s 107, it is preferable to fix costs in these circumstances, rather than to order costs be assessed. The information provided by Mr Hall is sufficient for this purpose and fixing the costs will avoid prolonging the matter further, including the incurring of further delay and expense to both parties. We note that the Tribunal has fixed costs even where those costs are significant.[10]
  5. [44]
    We order the costs to be paid on a standard basis, the conduct of the QBCC not being such as to warrant an order on an indemnity basis.
  6. [45]
    The actual costs at first instance were $81,084.33, comprising solicitors’ fees in the sum of $41, 888; disbursements for filing fees, photocopying fees, counsel’s fees and necessary searches in the sum of $34,961.33 and accounting fees of $4,235.00. Further accounting fees, including costs of liaising with the QBCC and witness fees of $16,750.25 were also incurred. The total costs were $97,834.58.
  7. [46]
    Accordingly, we allow the claim for costs of the proceeding at first instance in the sum of $68,484.21, representing 70% of the actual costs incurred.

Costs of the appeal

  1. [47]
    The QBCC abandoned its position on appeal entirely.
  2. [48]
    We do not accept the QBCC’s submission that the appeal lacked utility due to the operational commencement of Part 4 of the MFR Regulation on 31 December 2019. Section 24 of the MFR Regulation means the appeal proceedings were to be determined based on the MFR Policy. However, the QBCC submits that the practical effect of the MFR Regulation means that The Licensee would need to comply as a condition of maintaining a licence and, accordingly, that the issues in dispute in the appeal proceedings have been overtaken, such that the practical outcome of the appeal proceedings in terms of the effect on The Licensee’s licence are now academic.
  3. [49]
    We disagree. This submission ignores the effect of the reviewable decision, confirmed at first instance in the Tribunal, on The Licensee and its directors. The Licensee and its directors are entitled to a result in the appeal of that decision. We have determined the appeal in favour of The Licensee.
  4. [50]
    As to costs, The Licensee submits that on 14 August 2019 it set out in a letter to the QBCC how the Reasons and Order were wrong, that an appeal would be filed, a stay sought and why the stay would be granted. The Licensee asked the QBCC to agree to suspend the decision to allow the appeal to be determined under threat of seeking costs.
  5. [51]
    On 15 August 2019, The Licensee filed an application for leave to appeal or appeal and an application for a stay of the Order. On 19 August 2019, an interim stay was granted. By 8 October 2019, The Licensee had served its outline of argument in relation to the stay application and again wrote to the QBCC requesting it consent to the stay until the hearing of the appeal, under threat of seeking costs. The QBCC refused to consent to the stay.
  6. [52]
    On 18 October 2019, the Appeal Tribunal heard and granted the stay and made directions for the progress of the appeal and listed it for hearing on 16 March 2020.
  7. [53]
    On 21 November 2019, the QBCC filed an application seeking a direction that it reconsider the decision. The Licensee submits that this application was a ‘transparent device to avoid acknowledging that the appeal ought to be conceded and to try and avoid a costs order, all while putting [redacted] to further trouble and expense’.[11] The Licensee opposed that application and it was subsequently dismissed.
  8. [54]
    On 12 February 2020, the Appeal Tribunal extended the date for compliance with the notice of contention and outline to 11 March 2020 and adjourned the hearing of the appeal to 6 May 2020. That hearing date was later vacated due to COVID-19.
  9. [55]
    On 18 March 2020, on the application of the QBCC, the Appeal Tribunal extended the date of compliance for the notice of contention and outline to 31 March 2020. On 23 June 2020, some 3 months late, the QBCC filed a notice of contention conceding all nine grounds of appeal and which also stated that the decision was made in error and that the Appeal Tribunal ought to set aside the Order and the Decision.
  10. [56]
    The QBCC has refused to agree to pay The Licensee’s costs of the proceeding on appeal, in a fixed sum or assessed.
  11. [57]
    In determining whether costs of the appeal should be awarded, we turn to consider the factors in s 102 of the QCAT Act.

Party acting in a way that unnecessarily disadvantages another party

  1. [58]
    The QBCC did not brief counsel until the appeal. Until then, it appears the QBCC had relied on its internal legal officers. It is suggested that the QBCC became aware of the issues with its construction of the MFR Policy early on in the appeal proceedings, given the proposed notice of contention, reconsideration application and delays in complying with the notice of contention and outline directions. Notwithstanding, it appears that some further unnecessary costs were incurred in pursuing the appeal.

Nature and complexity of the dispute

  1. [59]
    We accept that, by reason of the complexity and nature of the proceedings, it was appropriate for the parties to have relied on lawyers.
  2. [60]
    The matters at issue were central to The Licensee’s right to continue trading. The Licensee was the primary source of income for two families and its 20 or so employees. The Licensee was forced to bring the proceedings, including the appeal, to protect its legitimate financial interests.
  3. [61]
    There were nine grounds of appeal which involved complex legal and factual arguments, including the analysis of financial records.
  4. [62]
    The construction of the MFR Policy was also of general public importance and to the building industry.

Relative strengths of claims made by each party

  1. [63]
    The Licensee refers to Queensland Racing Integrity Commission v Vale,[12] where it was held:

The expression “relative strength” contemplates a “substantial disparity between the strength of one claim and the weakness of its competitor”. A high level of un-tenability rather than mere tenuousness is envisaged.

It is unlikely that this criterion alone would call for a costs order where there was a real issue to be tried and real justification for the claims made on either side, however the ultimate test is still whether justice requires the costs order or not.[13]

  1. [64]
    The Licensee submits that the Decision was wrong and obviously so.
  2. [65]
    The interpretation by the QBCC involved ignoring the plain words of the definition without a sound legal basis for doing so. This is against the background of the many attempts by The Licensee’s accountant to explain how the QBCC’s interpretation was wrong.

Financial circumstances of the parties

  1. [66]
    The Licensee and its directors have incurred very considerable expense in defending the suspension of The Licensee’s licence. That expense was reasonably necessary, given the QBCC’s position. The Licensee funded its costs (which for both proceedings exceeded $200,000) by a director selling his family home and moving to his wife’s parents home.[14]
  2. [67]
    The QBCC, as a regulator, is funded by the State. That is not to say that the public funds at its disposal are unlimited and that it is not required, as publicly funded bodies must, to work within budgetary constraints imposed by Government.

Anything else the Tribunal considers relevant

  1. [68]
    Under this factor, The Licensee refers to the following:
    1. (a)
      The Licensee has been entirely successful on appeal;
    2. (b)
      Keane JA, in Tamawood Ltd v Paans,[15] where he observed that it would be both irrational and inimical to the interests of justice to deter legally unsophisticated or vulnerable parties from enforcing just claims via complex adversarial litigation by denying them the costs of beneficial legal assistance or to allow success in litigation to be eroded by the unrecovered cost of ‘reasonably necessary’ (and invariably very expensive) legal representation;
    3. (c)
      The Licensee’s retention of lawyers was necessary and desirable to prosecute its rightful claim to relief against the unreasonable and wrong conduct of the QBCC;
    4. (d)
      the proceedings have taken a heavy personal toll on a director and affected his health;
    5. (e)
      costs were foreshadowed in relation to both stay applications and are referred to throughout Mr Hall’s affidavit of 11 August 2020;
    6. (f)
      offers of settlement were repeatedly rejected; and
    7. (g)
      QBCC made offers of settlement, threatening costs consequences for their rejection.
  2. [69]
    We make the observation that the Tamawood decision was not made pursuant to the QCAT Act. However, we accept that the costs incurred by The Licensee were considerable and reasonably necessary costs of the complex litigation. We accept that the other factors identified also weigh in favour of the conclusion that the interests of justice require that a costs order be made in favour of The Licensee, including for the costs of the second stay application, which were reserved. We so find.
  3. [70]
    We order the costs be paid on a standard basis as we do not consider the QBCC’s conduct to be so unreasonable or its position so untenable as to warrant a making of an indemnity costs order.
  4. [71]
    We consider the Appeal Tribunal is in a position to fix costs under s 107 of the QCAT Act, based on Mr Hall’s affidavit in which he sets out the costs that have been incurred and calculates the likely quantum of an assessment of costs on the standard basis and on indemnity basis.
  5. [72]
    The actual costs on the appeal were $87,273.27 which comprised: solicitor’s fees of $41,712 and disbursements for counsel, filing fees and necessary searches of $45,561.27. The estimate of costs for considering QBCC’s submissions on costs and preparing material in reply and the costs of a hearing (2 hours) in relation to costs and other orders to be made was $13,500. As there was no hearing relating to costs, we will allow $7,000.00 as the estimate for matters associated with costs.
  6. [73]
    That being so, we allow the costs of the appeal on the standard basis at 70% of the actual legal costs of $94,273.27 (including the estimated costs of $7,000), that is, the total sum of $65,991.29.
  7. [74]
    Accordingly, we allow total costs (of the proceeding at first instance and on appeal) in the sum of $134,475.50.

Other orders

  1. [75]
    We also order that GS, GF and PG be released from the personal undertakings given to be jointly and severally liable for any debt of The Licensee incurred between 12 August 2019 and the determination of the proceeding that remains unpaid by The Licensee if and when it is liquidated.
  2. [76]
    The decision of 12 August 2019 is set aside and substituted with a decision that The Licensee satisfied the MFR Policy as at 31 December 2018. The QBCC must remove all references to the erroneous decision from its Register.
  3. [77]
    A non-publication order was made in the proceeding in October 2019 prohibiting the publication of any information that may identify the applicant, its directors and any subsidiary or related companies or their projects. Accordingly, the reasons for our decision are published in a de-identified format.

Footnotes

[1]Letter from QBCC to M. Hall dated 11 January 2019, which states that satisfactory evidence had not been provided that the current assets identified as related party loans are collectible pursuant to the MFR Policy, having not provided sufficient details of the related parties respective financial positions to confirm sufficient net Current Assets are held by parties sufficient to repay their respective amounts in full to the Trust.

[2]The QBCC claimed they set out grounds in an email of Ms Dennis-Weller of 4 February 2019. The Licensee disputes that this complied with the Tribunal Directions of 7 February 2019, direction (b)(ii).

[3]The Licensee v Queensland Building and Construction Commission [2019] QCAT 224 at [15].

[4]Ibid at [43].

[5]Ibid at [56]-[58].

[6]Partington v Urquhart (No 4) [2019] QCATA 96 at [70]; The Sands Gold Coast Pty Ltd v The Body Corporate for the Sands CT 14967 [2020] QCATA 105 at [29].

[7][2018] QCATA 124.

[8]Ibid at [24]-[26].

[9]Affidavit of Craig Mitchell Hall sworn 13 August 2020.

[10]TLL Investment Pty Ltd v The Body Corporate for the Grange CTS 30993 (No 2) [2018] QCAT 444 in which standard costs where fixed in the sum of $307, 130.86.

[11]Applicant’s submissions on costs filed 13 August 2020 at [34].

[12][2017] QCATA 110.

[13]Ibid at [50]-[51].

[14]Affidavit of C. Hall of 13 August 2020 at [14]-[17].

[15][2005] 2 QdR 101.

Close

Editorial Notes

  • Published Case Name:

    The Licensee Pty Ltd v Queensland Building and Construction Commission

  • Shortened Case Name:

    The Licensee Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2021] QCATA 7

  • Court:

    QCATA

  • Judge(s):

    Senior Member Howard, Member Traves

  • Date:

    20 Jan 2021

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
McGee v Queensland Building and Construction Commission [2018] QCATA 124
3 citations
Jump To
Cite 1 - [2018] QCATA 124
Cite 2 - [2018] QCATA 124
Cite 3 - [2018] QCATA 124
Partington & Anor v Urquhart (No. 4) [2019] QCATA 96
2 citations
Jump To
Cite 1 - [2019] QCATA 96
Cite 2 - [2019] QCATA 96
Queensland Racing Integrity Commission v Vale [2017] QCATA 110
3 citations
Jump To
Cite 1 - [2017] QCATA 110
Cite 2 - [2017] QCATA 110
Cite 3 - [2017] QCATA 110
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
The Licensee v Queensland Building and Construction Commission [2019] QCAT 224
4 citations
Jump To
Cite 1 - [2019] QCAT 224
Cite 2 - [2019] QCAT 224
Cite 3 - [2019] QCAT 224
Cite 4 - [2019] QCAT 224
The Sands Gold Coast Pty Ltd v The Body Corporate for the Sands CT 14967 [2020] QCATA 105
2 citations
Jump To
Cite 1 - [2020] QCATA 105
Cite 2 - [2020] QCATA 105
TLL Investment Pty Ltd v The Body Corporate for the Grange (No 2) [2018] QCAT 444
2 citations
Jump To
Cite 1 - [2018] QCAT 444
Cite 2 - [2018] QCAT 444

Cases Citing

Case NameFull CitationFrequency
AK Group Qld Pty Ltd v Queensland Building and Construction Commission No 2 [2021] QCAT 1262 citations
Commissioner of State Revenue v Telgrove Pty Ltd (No 2) [2023] QCATA 1132 citations
Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd (no 2) [2022] QCATA 1542 citations
TAJ (costs) [2023] QCAT 1331 citation
1

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