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Queensland Building and Construction Commission & Benton v Egan (No 2)[2023] QCATA 163

Queensland Building and Construction Commission & Benton v Egan (No 2)[2023] QCATA 163

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland Building and Construction Commission & Benton v Egan (No 2) [2023] QCATA 163

PARTIES:

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(first applicant/appellant)

NIGEL BENTON

(second applicant/appellant)

v

ANGELA EGAN

(respondent)

APPLICATION NO/S:

APL161-21; APL166-21

ORIGINATING APPLICATION NO/S:

GAR360-19; GAR360-20

MATTER TYPE:

Appeals

DELIVERED ON:

22 December 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Peter Murphy SC

ORDERS:

  1. BY CONSENT there be no order for costs in the appeal as between the QBCC and Dr Egan.
  2. The application for costs in the appeal filed by Mr Benton against Dr Egan be dismissed.
  3. There be no order for costs in the appeal as between Mr Benton and Dr Egan.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY TRIBUNALS – COSTS – POWERS OF TRIBUNAL AND RELEVANT CONSIDERATIONS IN EXERCISE OF DISCRETION – where the builder second applicant was successful in an appeal pertaining to the Home Warranty Insurance Scheme – where the builder seeks costs against the home owner respondent – whether the Tribunal’s discretion to award costs in the “interests of justice” infers a strong contra-indication against costs orders – where no prior decisions could be found to assist questions of statutory interpretation at the appeal, but the parties were not faced with the task of “managing complex litigation” – where the submissions of the builder did not advance the arguments of the first applicant nor differently inform the conclusion reached in the appeal – whether denying costs would discourage litigation and subsequent determinations providing “certainty and guidance to the community at large” in the context of the first applicant’s statutory functions – where the appeal was determinative of the liability between the builder and the first applicant rather than between the builder and the respondent – whether the builder’s success at the appeal would be “eroded” if a costs order was not made – where the respondent’s arguments at the appeal, though unsuccessful, were not weaker than the arguments against her – whether the interests of justice require the Tribunal to award the builder costs    

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

Health Ombudsman v Antley [2016] QCAT 472

Lee v Medical Board of Australia (No 2) [2016] QCAT 321

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

Tamawood Ltd & Anor v Paans [2005] QCA 111

Thompson v Cannon [2020] QCAT 109

APPEARANCES &

REPRESENTATION:

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

REASONS FOR DECISION

  1. [1]
    A decision by the QBCC[1] denied Dr Egan access to the Home Warranty Insurance Scheme legislated in Part 5 of the Queensland Building and Construction Commission Act 1991 (Qld).[2] Dr Egan’s claim was in respect of defective building work undertaken by Mr Benton.  Dr Egan was successful in reviewing that decision before the Tribunal at first instance.
  2. [2]
    Both the QBCC and Mr Benton appealed that decision.  Dr Egan resisted the appeal.  On 4 April, I made orders, sitting as the Appeal Tribunal, setting aside the orders made at first instance and substituting in lieu an order that the decision of the QBCC be confirmed.[3]
  3. [3]
    The effect of my orders was that Dr Egan was unable to avail the statutory insurance scheme in respect of Mr Benton’s defective work.  Any claim Dr Egan may have against Mr Benton in respect of the admitted defective work was not in issue in the proceedings.
  4. [4]
    Mr Benton now seeks an order that Dr Egan pay his costs of the appeal, assessed on the District Court scale. The QBCC submits there should be no order for costs as between it and Dr Egan. Dr Egan seeks orders that Mr Benton’s application be dismissed and there be no order as to costs.

The Nature of the Issues at First Instance and on Appeal

  1. [5]
    The case before the Tribunal at first instance involved only questions of law.  It turned on the proper construction of Part 5 of the QBBC Act and, in particular, the proper interpretation of terms used within that Part: “residential construction work”; “residence”, “proposed residence” and “residential purposes”. 
  2. [6]
    The QBCC rejected Dr Egan’s claim under the statutory insurance scheme because it concluded the defective work carried out by Mr Benton to the property owned by Dr Egan was not “residential construction work”.
  3. [7]
    In allowing the appeal I found that the arguments of each of the QBCC and Mr Benton “had not been grappled with” by the Tribunal and “the reasons were manifestly inadequate to elucidate the findings” made.  The Tribunal “failed to properly address and consider the arguments of the Commission and Mr Benton”.[4] The proceedings at first instance did not require the resolution of any disputed issues of fact. 
  4. [8]
    While the proceedings did not concern any amount that may or may not be due to Dr Egan from Mr Benton as a result of his defective work, if the appeal was   unsuccessful, an effect would have been a potential payment by Mr Benton to the QBCC under the statutory indemnity provided for in s 71 of the QBCC Act for any amount paid under Dr Egan’s claim.[5]
  5. [9]
    At the hearing of the appeal, all parties accepted that the particular issues raised by the case had not been the subject of earlier determination by the Tribunal (or a court).  No party was able to locate any authority which assisted the Appeal Tribunal in the task of interpreting the legislation.    

Must the Interests of Justice be “Compelling” to Award Costs?

  1. [10]
    The written submissions of each of the parties in the instant application call into question the proper interpretation of sections 100 and 102 of the QCAT Act which contain the Tribunal’s power to award costs.[6]
  2. [11]
    Under the heading “Each party usually bears own costs”, section 100 of the QCAT Act provides:

Other than as provided under this Act or an enabling Act, each party proceeding must bear the party’s own costs for the proceeding.

  1. [12]
    Section 102(1) provides:

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. [13]
    Section 102(3) provides:

In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following— 

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. the nature and complexity of the dispute the subject of the proceeding; 
  1. the relative strengths of the claims made by each of the parties to the proceeding; 
  1. for a proceeding for the review of a reviewable decision—
  1. whether the applicant was afforded natural justice by the decision-maker for the decision; and 
  1. whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits; 
  1. the financial circumstances of the parties to the proceeding; 
  1. anything else the tribunal considers relevant.
  1. [14]
    Dr Egan’s written submissions contend:

[Section 100] and the issue of costs in the tribunal more broadly, has been variously described as follows:

  1. (t)he tribunal is (still) a jurisdiction where ordinary people expect to litigate with a minimal risk of a costs order; [citing Wharton v Duffy Constructions (Qld) Pty Ltd [2016] QCATA 12 at [15]].[7]
  1. The language of s 100 plainly indicates that the legislature has turned its face against awards of costs in this Tribunal.  The question that will usually arise in each case in which costs are sought is, then, whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ have arisen; and, whether or not they point to a costs award in a sufficiently compelling way to overcome the statutory hurdle; [referring to A Wilson J, President, in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 “at [4]”].
  1. The public policy intent of the provisions of 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. [referring to Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364, “at [8] –[9]”].[8]
  1. [15]
    In its written submissions the QBCC contends that “a more recent approach walks back the approach in Ralacom [above] to focus upon the words of section 102, namely whether the ‘interests of justice require’ a costs order”. [citing Marzini v Health Ombudsman (No 4) [2020] QCAT 365 and Cowen v Queensland Building and Construction Commission [2021] QCATA 103].[9]
  2. [16]
    The initial written submissions on behalf of Mr Benton refer to s 100 as a “starting point” and otherwise appear to apply what was said by A Wilson J in Ralacom, above, without reference to the authorities identified in the QBCC’s submission.[10]  However, in his submissions in reply, Mr Benton “adopts the QBCC’s submissions regarding the less stringent approach to awarding costs under sections 100 and 102 of the QCAT Act …”.[11]
  3. [17]
    The decisions referred to in the submissions each refer to what was said by Keane JA[12] in Tamawood Ltd & Anor v Paans [2005] QCA 111 – a decision of the Court of Appeal dealing with the power of the Commerical and Consumer Tribunal to award costs.  His Honour pointed out that the power to award costs was a creature of statute and held:

… the nature and extent of the power can only be discerned by close consideration of the terms of the statute which creates the power and prescribes conditions for, and conditions of, its exercise”.[13]

  1. [18]
    The relevant sections at issue in Tamawood were sections 70 and 71 of the Commercial and Consumer Tribunal Act 2003 (Qld).[14]  That Act was repealed by the QCAT Act.  The QCAT Act also abolished the Tribunal created under that Act.[15]
  2. [19]
    However each of section 71 of the repealed Act and section 102(1) of the QCAT Act enable a costs order to be made if “the interests of justice” “require” it.  Each piece of legislation enumerates matters to which the tribunal “may have regard”[16] in arriving at that conclusion.  However, each piece of legislation gives the respective tribunal a wide discretion in doing so.[17]  
  3. [20]
    The differences between sections 70 and 71 of the CCTA Act referred to in Tamawood and sections 100 and 102 of the QCAT Act can be summarised as:
  • Section 70 of the repealed Act is headed “Costs”; s 100 of the QCAT Act is headed “Each party usually bears own costs”;
  • Section 70 refers to the “main purpose” of the relevant division being to “have parties pay their own costs”; s 100 of the QCAT Act uses mandatory language: “each party must bear the party’s own costs”;
  • Among four enumerated matters in s 71(4) to which the then Tribunal could have regard is “(a) the outcome of the proceedings”.  That factor is not included among six enumerated matters in s 102(3), nor is any similar factor enacted.
  • The parties’ financial circumstances is a factor in s 102(3); no identical or similar factor appears in s 71(4); and
  • Section 71(5) of the repealed Act is not repeated in the QCAT Act nor is any similar provision enacted.  (The repealed section provided that a party was not entitled to costs “merely because” the party was “the beneficiary of an order of the tribunal” or was “legally represented at the proceeding”.)
  1. [21]
    In Ralacom, above, A Wilson J considered the legislative changes enacted by the QCAT Act and what had been said by Keane JA in Tamawood, above before concluding, at [29]:

Under the QCAT Act, the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ [in s 102] point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.

  1. [22]
    In Marzini v Health Ombudsman (No 4) [2020] QCAT 365, Judicial Member McGill SC concluded at [17]:

… The terms of [ss 100 and 102 of the QCAT Act] make it clear that the starting point is that no order for costs is to be made, but authorises a costs order if the interest of justice require it. The use of the word “require” suggests that the interests of justice must clearly support a costs order; but to say that they must do so “compellingly”, and to treat s 100 as having “a strong contra-indication against costs orders”, is to read into the statutory discretion restrictions which are not based on the terms of the Act.

  1. [23]
    Similar views were expressed by his Honour in Cowen v Building and Construction Commission [2021] QCATA 103 and again in August this year in Queensland Building and Construction Commission v B & L Constructions Qld Pty Ltd (No 2) [2023] QCATA 107.  In the former case, his Honour said at [27]:

Having considered that matter, I remain of the view that the relevant test is that in s 102(1): whether the interests of justice require that order. As I said in Marzini, the use of the term “require” shows that an order for costs should not be too readily made, and I accept that it may fairly be said that the wording of the heading to s 100 is another indication to the same effect. In so far as his Honour went further in Ralacom at [29], I consider that his statement cannot confine the discretion conferred on the Tribunal under s 102(1), or modify the test in that section. [citation omitted]

  1. [24]
    The proper interpretation of the plain language used in sections 100 and 102 occurs in a context summarised, for example, by Heydon J in Momcilovic v The Queen (2011) 245 CLR 1 at 175–176:

… the search [is] not for the intention of the legislature, but for the meaning of the language it used, interpreted in the context of that language. The context lies partly in the rest of the statute (which calls for interpretation of its language), partly in the pre-existing state of the law, partly in the mischief being dealt with and partly in the state of the surrounding law in which the statute is to operate. [citations omitted]  

  1. [25]
    The broader statutory context within the QCAT Act includes as an Object “to have the tribunal deal with matters in a way that is accessible, fair, just, economical and quick”.[18] The Act also includes as “the main purpose” having “parties represent themselves unless the interests of justice otherwise requires.”[19]  Notably, leave was given for all parties to be represented in the instant case.
  1. [26]
    The comments by Judicial Member McGill SC that a costs order “should not too readily be made” or that the interests of justice “must clearly support”[20] a costs order or that an order “should not be made lightly” can, in my respectful opinion, be seen as seeking to give expression a legislative context that sees sections 100 and 102 work in conjunction where both sections must be seen to do some work. Again respectfully, I consider A Wilson J[21] was also seeking to give expression to that consideration rather than seeking to add a gloss to the plain words of the sections, or to curtail the exercise of discretion.   
  1. [27]
    However, as the review of the Tribunal decisions by Judicial Member McGill SC in the decisions earlier referred to illustrate (as, indeed, do submissions in the instant case), A Wilson J’s comments as to the need for the interests of justice to “point so compellingly to a costs order” and the need for a “strong contra-indication” to the s 100 mandate in Ralacom, have been interpreted as, in effect, adding an additional factor that must be satisfied, or hurdle that must be overcome, before an order for costs can be made. 
  1. [28]
    I respectfully agree with Judicial Member McGill SC that a conclusion to that effect is not a correct interpretation of sections 100 and 102 of the QCAT Act.
  2. [29]
    It follows that to the extent Dr Egan’s submission (and Mr Benton’s initial submission) assume such a requirement, each such submission should be rejected.
  1. [30]
    Judicial Member McGill SC refers to his approach as “essentially the same” as that postulated by “the Hon P Lyons QC in Thompson v Cannon [2020] QCAT 109, and by the Hon J B Thomas QC in Lee v Medical Board of Australia (No 2)  [2016] QCAT 321 at [38]”.[22]  In the latter case, his Honour said:

The ultimate question posed by the statutory provisions is whether it is in the interests of justice to make a costs order.  A wide range of circumstances must be considered in order to answer it.[23]

  1. [31]
    Again, with great respect, I agree. But among the circumstances to be considered must take into account what Keane JA in Tamawood called “a general rule” that, “good reason must be shown in terms of the interests of justice for making an award of costs …”.[24]   More recent decisions in respect of the QCAT Act appear to me to embrace that same proposition in holding that the interests of justice “must clearly support a costs order” or that such an order “should not be made lightly” or “should not too readily be made”.[25] 
  1. [32]
    The terms of s 102(3) make it clear that it is for the Tribunal to decide whether, in the exercise of the discretion to award costs, regard should be had to the enumerated factors within it.  Yet, their explicit enumeration is also an important contextual consideration.  In my view, their inclusion is an indication by the legislature that those factors, rather than other factors that might be considered, may figure more prominently in the assessment of the interests of justice and the ultimate exercise of the discretion.

The Propositions in Tamawood and Mr Benton’s Submissions

  1. [33]
    Mr Benton summarises his submission as follows:[26]
  1. The proceeding was complex.  All parties were legally represented throughout the proceeding and no party took objection to that, thereby implicitly acknowledging that legal representation was justified.
  1. [He] was wholly successful and reasonably incurred the cost of his representation in order to secure that outcome. Such success should not be eroded by requiring the builder to bear the costs of his representation;
  1. Whilst the owner’s case was not unarguable, the builder’s case was, relatively speaking, much stronger.
  1. [He] has incurred significant costs in relation to this proceeding, which at all times have been opposed by the owner who maintained an entitlement to cover under the statutory insurance scheme notwithstanding her unlawful occupation of the building in question. [Earlier in the submissions (at [21]) it is contended that failure to award costs would “significantly erode the builder’s success in the proceedings”].
  1. The owner steadfastly resisted the appeal, compelling the builder to expend the costs he did.
  1. The appeal raised a novel question of statutory interpretation that was not the subject of any previous determination.  The decision will provide certainty, guidance and assistance to those who come to the issue subsequently.  To deny the builder his costs would serve to discourage others, in the position of the builder, from pursuing proceedings such as this, that serve to develop the common law and provide clarity and certainty.
  1. In all of these circumstances, the interests of justice – centred on fairness and equity – favour the awarding of costs to the builder.
  1. [34]
    Mr Benton’s submissions and arguments plainly centre upon the propositions advanced by Keane JA in Tamawood, above.
  2. [35]
    Keane JA said relevantly:

[30] First, the Tribunal found that each party was justified in engaging the services of legal representatives to assist them in the conduct and defence of what the Tribunal recognized to be complex proceedings. That finding alone could be, in my view, a sufficient basis to conclude that the interests of justice warranted the exercise of the discretion to award costs in favour of the successful party, at least in the absence of any countervailing consideration. The Tribunal erred in failing to appreciate the implication of this finding for an understanding of where the interests of justice lay in relation to the costs of the proceedings.

…

[32] If orders for costs were not to be made in favour of successful parties in complex cases, then just claims might not be prosecuted by persons who are unable to manage complex litigation by themselves. Such a state of affairs would truly be contrary to the interests of justice; and an intention to sanction such a state of affairs cannot be attributed to the legislature which established the Tribunal.

[33] To say this is not to ignore s 71(5)(b) of the Act. There is a clear distinction, in terms of the interest of achieving justice, between the mere fact of having representation and the fact of having reasonably obtained that representation because of the complexity of the case. In the absence of countervailing considerations, where a party has reasonably incurred the cost of legal representation, and has been successful before the Tribunal, it could not rationally be said to be in the interests of justice to allow that success to be eroded by requiring that party to bear the costs of the representation which was reasonably necessary to achieve that outcome. Finally in this regard, it should also be borne in mind that s 71(4)(a) of the Act expressly recognizes that "the outcome of the proceeding" is a consideration which is relevant to the exercise of the discretion conferred by s 71(1) of the Act.

  1. [36]
    Those propositions were made in respect of now-repealed legislation and a now-abolished Tribunal. Nevertheless, as has been seen, respected Judicial Members of the Tribunal have considered them of assistance in assessing the requirements of the interests of justice under the QCAT Act. 
  2. [37]
    For example, in B & L, above at [3], Judicial Member McGill SC refers with approval to a statement by the Hon J B Thomas QC in Lee v Medical Board of Australia (No 2) [2016] QCAT 321 at [37] that Keane JA’s “observations [are] of particular assistance concerning the exercise of the discretion conferred by [the relevant] sections …”.
  3. [38]
    Equally of course, Keane JA’s observations cannot be determinative of the exercise of discretion as to the requirements of the interests of justice in a particular case. 
  4. [39]
    In Health Ombudsman v Antley [2016] QCAT 472, at [61], the Hon J B Thomas QC said of Keane JA’s statement:

The observations were general, and the statutory framework was similar to those now applicable to QCAT.  Consideration is therefore necessary as to whether there are ‘countervailing circumstances’ in the present case.

Countervailing Circumstances and the Interests of Justice in this Case

  1. [40]
    The following circumstances, referable to the provisions of s 102(3) are either agreed or non-contentious:
  • It is not suggested that a party has acted in a way that has disadvantaged another party (s 102(3)(a));[27]
  • No submissions are made that the applicant was not afforded natural justice in the appeal or that any party did other than assist the Appeal Tribunal to make a decision on the merits (s 102(3)(d)(i) and (ii)); and
  • No submissions are made in respect of the parties “financial circumstances” (s 102(3)(e).  (Dr Egan’s submissions under this heading in fact only refer to potential legal costs and do not refer to the respective financial circumstances of either herself or Mr Benton).

Complexity and Legal Representation

  1. [41]
    The QBCC contends that “In B & L [above] Judicial Member McGill set out that the interests of justice are informed by the circumstances of the particular case”.[28] 
  2. [42]
    Ultimately, the QBCC submits;[29]

While the QBCC has been successful in having the Tribunal’s decision at first instance reversed on appeal, the error of law entailed in that decision should not be brought home against [Dr Egan].

  1. [43]
    As has been seen, Mr Benton asserts “the proceeding was complex”.  Dr Egan asserts that “the appeal … involved complex legal issues”.[30]   (Given its ultimate position, the QBCC’s submissions do not refer to this issue).
  2. [44]
    In Tamawood, Keane JA referred to legal representation in “complex cases” and to the “manage[ment] of complex proceedings”. Tamawood concerned costs in proceedings where an owner successfully claimed damages against two building companies. The instant case is very different. 
  3. [45]
    This case concerns an appeal which succeeded because the Tribunal at first instance failed to engage with the arguments and submissions made by the parties and because the reasons were manifestly inadequate.  A result was that the substantive submissions relating to the proper interpretation of the QBCC Act on appeal made at first instance were effectively unaffected by any finding and the parties’ submissions on those issues at the appeal were effectively the same as those made below. 
  4. [46]
    It is true that the questions of statutory interpretation were novel in the sense that no prior decision of a court or the Tribunal could be found to assist.  It is also true that the particular statutory provisions in question are intertwined, and the resulting interpretive task could be described as complex.  However, it does not in my view follow that Mr Benton was faced with the task of “managing complex litigation” in the sense referred to by Keane JA.
  5. [47]
    Dr Egan asserts that Mr Benton’s appeal submissions “largely adopted the submissions of the QBCC at first instance.”[31]  In his reply, Mr Benton rejects that contention and says he “addressed principles and case law not referred to by the QBCC”.[32]
  6. [48]
    The QBCC filed comprehensive and cogent submissions both below and on appeal. Both carefully traversed the intricacies of the legislation.  No submission or argument by Mr Benton contended for any different construction or interpretation of the legislation.  The substance of the orders sought by each of the QBCC and Mr Benton was identical. 
  7. [49]
    Whatever might be said about any differences in the submissions of the QBCC and Mr Benton, in my view the arguments and submissions advanced by Mr Benton did not, respectfully, expand or advance the arguments of the QBCC nor did they differently or more cogently inform either any interpretive issue or any conclusion reached in the appeal.
  8. [50]
    In my opinion, prior to Mr Benton filing his appeal submissions four things were readily apparent from the QBCC’s submissions which had already been filed.  First, Mr Benton had nothing of substance to add to the case for appealable error made by the QBCC.  Second, if error was established, the QBCC sought to have the Appeal Tribunal redetermine the issues; Mr Benton sought the same outcome.  Third, I am not persuaded that any contentions Mr Benton sought to make in respect of the legislation on that redetermination materially differed from the contentions of the QBCC.  Fourthly, as a consequence, if the QBCC’s contentions as to the relevant statutory construction found favour, Mr Benton would also succeed, and if the QBCC failed in its contentions, Mr Benton would also fail on the same basis.
  9. [51]
    It was entirely open to Mr Benton to adopt the submissions of the QBCC.  Equally, it was entirely open to Mr Benton to adopt a limited role in his representation at the hearing. Doing so is entirely consistent with sections 3(b) and 4(c) of the QCAT Act. In the unlikely event anything outside of the written submissions arose peculiar to his interests, natural justice would have seen him afforded an opportunity to alter those arrangements accordingly. He could have plainly sought such an opportunity in adopting the QBCC’s submissions.  No such issue did in fact arise at the hearing of the appeal.
  10. [52]
    Those statements should not be misunderstood or misconstrued.  It is, of course, not at all suggested that Mr Benton was not entitled to secure such representation as he chose and to be represented at the hearing as he chose.  Nor, of course, is it suggested that Mr Benton should have been restricted in the filing of such submissions as he might choose.   The instant issue is not whether Mr Benton had those entitlements and choices; the issue is whether Dr Egan should pay for how he exercised those entitlements and made those choices. 
  11. [53]
    In my view, the considerations just outlined point against the interests of justice requiring that she should do so.
  12. [54]
    I should refer in that context to two matters raised in Mr Benton’s submissions which reference s 102(3)(f).
  13. [55]
    First, despite Mr Benton accepting Dr Egan’s position was not unarguable and also accepting that she did not conduct herself in a manner that “unnecessarily disadvantage[d]” either of them (s 102(3)(a)), he asserts that Dr Egan “consistently and steadfastly resisted the appeal, compelling the builder to expend the costs he did in this proceeding”.[33]
  14. [56]
    I have already indicated why I consider Mr Benton was not “compelled to spend the costs he did”.  Secondly, no argument points to any particular conduct that takes Dr Egan’s conduct beyond that of any litigant properly and reasonably asserting their position.[34]  Nor does any argument point to any conduct which, in any event, is said to have increased his costs in any way. I have not been made aware of any offer to settle his appeal (and, given the nature of the proceedings, it is unlikely that any meaningful offer could have been made by any party). 
  15. [57]
    I reject the submission as having no relevance to the exercise of my discretion.
  16. [58]
    Secondly, Mr Benton claims his appeal led to a decision which “… will provide certainty, guidance and assistance to those who subsequently come to the issue” and his “preparedness to have such issues resolved [created] a useful precedent”.  Echoing what was said by Keane JA, it is said that in those circumstances, denying costs would “discourage future litigants from agitating issues for determination that provide certainty and guidance to the community at large”.[35]
  17. [59]
    I also reject that submission. The QBCC’s appeal had the characteristics Mr Benton attributes to his appeal.  Part 5 of the QBCC Act is essential to the exercise of part of the QBCC’s statutory functions and its day-to-day operation. Mr Benton’s appeal may have sought the same result, but its purpose was plainly to avoid liability to the QBCC under the statutory indemnity provided for in s 71 of the QBCC Act.

Mr Benton’s Success in the Appeal 

  1. [60]
    Dr Egan submits Mr Benton “cannot properly be described as the successful party” nor “wholly successful” because “the same outcome” would have resulted had the proceedings involved only the owner and QBCC”.[36]  As framed that submission as to lack of success involves, as it seems to me, an implicit repetition of the erroneous additional submission by Dr Egan that Mr Benton is not properly a party to the appeal (or, perhaps, if properly a party, was not entitled to be represented).[37]
  2. [61]
    Mr Benton was, as I have earlier said, entitled to appeal and entitled to file written submissions and be represented at the hearing.  Leave had been given for the latter. (As I have also earlier said however, whether Dr Egan should pay Mr Benton’s costs of either is a different question.)
  3. [62]
    Mr Benton contends he “has been wholly successful” in the appeal.  It will be recalled that Keane JA made reference in Tamawood to “being successful in the tribunal” and that it “could not rationally be said to be in the interests of justice to allow that success to be eroded by requiring that party to bear the costs of the representation which was reasonably necessary to achieve that outcome”.
  4. [63]
    The matters referred to above under the previous sub-heading should in my view be seen as relevant to whether Mr Benton’s costs should be seen as “reasonably necessary” in the particular circumstances of this case.  What constitutes “success” should also be seen in the light of those same circumstances and the legislation now governing this Tribunal.
  5. [64]
    The QBCC’s submissions point out that, at [33] in Tamawood, Keane JA refers to “the outcome of the proceedings” being a “consideration which is relevant to the exercise of the discretion conferred by s 71(1) of the Act”.  The submissions go on to say at [13]:

As to the final sentence in that passage from Tamawood, the Commission notes that section 102 of the QCAT Act, unlike the predecessor Act, does not expressly include “the outcome of the proceeding” as a relevant factor for consideration.

  1. [65]
    Despite the similarities between s 71 of the repealed Act and s 102(3) of the QCAT Act (including two identical paragraphs), the legislature did not include “outcome of the proceedings” as a factor that might be considered under s 102(3).   The QCAT Act was passed subsequent to the decision in Tamawood.  As I have earlier said, I consider the matters enumerated within s 102(3) are a pointer to the matters which the legislature considers may merit consideration. I consider the omission of outcome of the proceedings as a matter meriting specific enumeration is a pointer to its relative lack of importance in determining the requirements of the interests of justice in a specific case. 
  2. [66]
    In Thompson v Cannon [2020] QCAT 109, Judicial Member the Hon Peter Lyons QC noted at [35] that the considerations bearing upon an award of costs:

… are not identical with those which the courts have come to recognise as relevant to the exercise of powers to award costs generally conferred on them. Thus success in the ‘event’ is not expressly recognised, in contrast to r 680 of the Uniform Civil Procedure Rules 1999 (Qld), and is plainly not a ‘guiding principle’, or one of the most important considerations for an award of costs under s 102 (by virtue of the effect of s 100). [citation omitted]

  1. [67]
    More important to my assessment of the role of success in determining the requirements of justice in the instant case is my conclusion that Mr Benton’s success in his appeal cannot be seen as “eroded” in the sense referred to by Keane JA if a costs order is not made in his favour. 
  2. [68]
    While, ultimately, the issue litigated both at first instance and on appeal was confined to the proper interpretation of legislative provisions, the proceedings in truth had their practical genesis in admitted defective work carried out by Mr Benton.  The success in the appeal upon which Mr Benton relies is determinative of any liability between him and the QBCC under s 71 of the QBCC Act.  It is not determinative of any rights or liabilities between Mr Benton and Dr Egan in respect of the defective work. The work remains defective and it remains unrectified. Dr Egan remains unremedied in respect of it.  
  3. [69]
    Dr Egan contends she will suffer financial loss due to Mr Benton’s defective building works and that the cost of rectifying building defects has been assessed at $65,535.25 “as part of the QBCC’s claim assessment process prior to the appeal decision being handed down”.[38] Mr Benton says Dr Egan relies upon the “insurable value figure” and contends I should “cautiously regard” that figure.  Mr Benton disputes the scope of works upon which it is based.[39] In referring to his dispute about the scope of works, Mr Benton does not posit any alternative amount or estimate of the costs of rectification. 
  4. [70]
    Any dispute about the precise figure is in my view not to the point in respect of the instant issue.  Rather, the point is that his appeal success has no impact upon what I regard as a continuing injustice, namely the admitted necessity for rectification of admitted defective work.

Relative Strengths of the Parties’ Cases

  1. [71]
    Mr Benton contends that “while it cannot be said that [Dr Egan’s] position was unarguable:

… as observed in [Mr Benton’s] written submissions, the owner’s argument suffered from the unattractive proposition that the owner could gain the benefit of the home warranty scheme (a publicly funded scheme) only by reason of the fact that she had acted illegally by occupying her class 10a shed as a residence.[40]

  1. [72]
    Mr Benton then contends that his position, “relatively speaking, was much stronger than the owner’s and militates towards an order for costs in [Mr Benton’s] favour”.
  2. [73]
    The proposition can only be seen as strong when seen in the light of the ultimate appeal decision. The question in this context is not whether the relevant argument was successful, rather the question is whether the party from whom costs is sought should reasonably have foreseen that the opposing argument had a strength that called into question opposing it.
  3. [74]
    In my view it could not reasonably have been said prior to the appeal decision that the argument based on “unlawful” occupation of the premises was “much stronger” than the argument against. 
  4. [75]
    The appeal concerned arguments about the proper interpretation of statutory provisions that had not been the subject of earlier judicial or tribunal guidance.  Dr Egan’s case was, as is admitted, arguable.  Her argument was inextricably connected with the proper interpretation of the terms “residence” and “proposed residence” which were at the heart of the appeal.  Dr Egan was the respondent to the appeal.  She had the benefit of a finding by the Tribunal at first instance that:

Although the structure was a Class 10a “non-habitable building or structure” at the time Mr Benton was engaged to carry out the works, ‘Mr Benton was engaged to carry out the works so that [Dr Egan] could reside in the building’.

  1. [76]
    In my opinion it could not be said of Dr Egan’s argument ahead of the appeal decision that it suffered from the “unattractive proposition” contended for.  Ultimately, her argument was not accepted, but it could not in my opinion be objectively viewed before the appeal hearing as any weaker than the arguments against her.

Summary and Conclusion

  1. [77]
    For the reasons earlier given, I conclude in summary:
  1. It is not necessary for Mr Benton to show that the interests of justice “point so compellingly to a costs order that they overcome the strong contra-indication against costs orders in s 100”;
  2. Mr Benton’s application for costs should pose the question for this Tribunal “do the interests of justice require an order for costs when due regard is had to a general rule that good reasons in terms of the interests for justice for that order should be shown, and when consideration is given to all circumstances considered relevant including, in particular, a consideration of the factors enumerated in s 102(3) of the QCAT Act?”;
  3. No party has acted in a way that disadvantaged Mr Benton;
  4. No party was denied natural justice on the appeal and nor did any party do other than assist the Appeal Tribunal;
  5. No conclusions can be drawn about the financial circumstances of Mr Benton or Dr Egan;
  6. Whatever the complexities involved in the task of statutory interpretation involved in the appeal, Mr Benton was not tasked with “managing complex litigation” in the sense referred to in Tamawood, above;
  7. In that respect, as a result of the inadequacies of the reasons at first instance, the submissions relating to the complexity of intertwined legislation on the appeal were effectively the same as those at first instance;
  8. Dr Egan’s claim that Mr Benton was not a proper party to the appeal is rejected as is her submission that Mr Benton simply “adopted” the submissions of the QBCC. However, nor did Mr Benton’s submissions or participation in the hearing expand or advance the arguments of the QBCC or differently or more cogently inform any conclusion reached in the appeal;
  9. It was open to conduct the appeal in the manner he did, but given reasonable alternatives open to him, the interests of justice point against the conclusion that Dr Egan should pay for his choices in doing so;
  10. Dr Egan’s case on the appeal was arguable and Mr Benton’s suggestion that she “consistently and steadfastly” resisted the appeal is rejected as irrelevant to the issue of costs;
  11. The appeal succeeded on an error of law: the arguments of the parties were not considered and the reasons at first instance were manifestly inadequate. Dr Egan was a respondent to the appeal. Nothing in the proceedings or reasons at first instance suggest she should not have sought to uphold her arguments or the outcome there;
  12. I reject Mr Benton’s contention that his appeal had as its purpose or effect giving the “certainty, guidance and assistance” for which he contends. Those characteristics are properly attributable to the QBCC’s appeal;
  13. Mr Benton can be described as having succeeded in his appeal. I am not persuaded that this fact per se points to the interests of justice favouring costs in the circumstances of this case.  The omission of that factor from s 102(3) after the repeal of s 71 informs that conclusion in part but I consider it important that Mr Benton’s true practical success in the appeal is avoiding liability to the QBCC; 
  14. Mr Benton’s success in the appeal leaves Dr Egan unremedied in respect of his work which is admitted to be defective.  The work remains defective and unrectified; and
  15. I do not consider that a reasonable assessment of the cases advanced by each of the parties prior to the outcome of the appeal results in the conclusion that Mr Benton’s case was stronger than Dr Egan’s case.
  1. [78]
    Ultimately, I do not consider the interests of justice require an order for costs.

Orders

  1. [79]
    The orders of the Tribunal will be:
  1. BY CONSENT there be no order for costs in the appeal as between the QBCC and Dr Egan.
  1. The application for costs in the appeal filed by Mr Benton against Dr Egan be dismissed.
  1. There be no order for costs in the appeal as between Mr Benton and Dr Egan.

Footnotes

[1]  Queensland Building and Construction Commission.

[2]  The “QBCC Act”.

[3] Queensland Building and Construction Commission & Benton v Egan [2023] QCATA 29.

[4] Egan, above at [19]–[22]; [40]–[42].

[5] Queensland Building and Construction Commission Act 1991. In separate proceedings Mr Benton disputed the scope of works assessed by the Commission.

[6] Queensland Civil and Administrative Tribunal Act 2009 (Qld).

[7]  In fact, the reference is to, and quotes directly without attribution from, an amalgam of what was said by his Honour at [24] and [29].  The expression “statutory hurdle” is not used by his Honour.

[8]  In fact, quoting what was said at [9].

[9]  Written submissions at [7]. See also Queensland Building and Construction Commission v B & L Constructions Pty Ltd (No 2) [2023] QCATA 107 also referred to in the written submissions.

[10]  See Mr Benton’s written submissions at [8].

[11]  Mr Benton’s Reply submissions at [3].

[12]  Williams JA and Phillipedes J agreeing.

[13]  At [23].

[14]  “CCTA Act”.

[15]  QCAT Act, ss 244, 247, Schedule 1.

[16]  Section 102(3) QCAT Act;  s  71(4) CCAT Act.

[17]  Section 102(3)(f) QCAT Act;  s 71(4)(g) CCAT Act.

[18]  QCAT Act, s 3(b).

[19]   QCAT Act, s 43(1). 

[20]  In the passages quoted above from Cowen and Manzini respectively.

[21]  At [24]–[28].

[22] Queensland Building and Construction Commission v B & L Constructions Qld Pty Ltd (No 2) [2023] QCATA 107 at [3].

[23] Lee v Medical Board of Australia (No 2), above, at [38].

[24]  Tamawood, above, at [28], noting of course that his Honour was referring to the provisions of repealed Act.

[25]  Respectfully adopting Judicial Member McGill SC’s expressions.

[26]  Written submissions at [28].

[27]  QBCC submissions, [19];  Mr Benton’s submissions, [12].

[28]  QBCC submissions, [10].

[29]  QBCC submissions, [17].

[30]  Respective written submissions at [13] and [36].

[31]  Dr Egan’s submissions at [51]. The submission footnotes reference to six specific passages.

[32]  Submissions in reply at [8].

[33]  Written submissions at [26].

[34]  The argument relating to the ultimate finding in the appeal as to occupation of the premises being “unlawful” is dealt with later in these reasons.

[35]  Mr Benton’s submissions at [27].

[36]  Written submissions Dr Egan at [38].

[37]  Written submissions Dr Egan at [54].

[38]  Dr Egan’s submissions, [48].

[39]  Mr Benton’s submissions in reply, [11], [12].

[40]  Mr Benton’s submissions, [22].

Close

Editorial Notes

  • Published Case Name:

    Queensland Building and Construction Commission & Benton v Egan (No 2)

  • Shortened Case Name:

    Queensland Building and Construction Commission & Benton v Egan (No 2)

  • MNC:

    [2023] QCATA 163

  • Court:

    QCATA

  • Judge(s):

    Judicial Member Peter Murphy SC

  • Date:

    22 Dec 2023

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
1 citation
Jump To
Cite 1 - [2010] QCAT 364
Cowen v Queensland Building and Construction Commission [2021] QCATA 103
2 citations
Jump To
Cite 1 - [2021] QCATA 103
Cite 2 - [2021] QCATA 103
Health Ombudsman v Antley [2016] QCAT 472
2 citations
Jump To
Cite 1 - [2016] QCAT 472
Cite 2 - [2016] QCAT 472
Lee v Medical Board of Australia (No 2) [2016] QCAT 321
3 citations
Jump To
Cite 1 - [2016] QCAT 321
Cite 2 - [2016] QCAT 321
Cite 3 - [2016] QCAT 321
Marzini v Health Ombudsman (No 4) [2020] QCAT 365
3 citations
Jump To
Cite 1 - [2020] QCAT 365
Cite 2 - [2020] QCAT 365
Cite 3 - [2020] QCAT 365
Momcilovic v The Queen (2011) 245 CLR 1
1 citation
Jump To
Cite 1 - (2011) 245 CLR 1
Queensland Building and Construction Commission & Benton v Egan [2023] QCATA 29
1 citation
Jump To
Cite 1 - [2023] QCATA 29
Queensland Building and Construction Commission v B & L Constructions Qld Pty Ltd [2023] QCATA 71
1 citation
Jump To
Cite 1 - [2023] QCATA 71
Queensland Building and Construction Commission v B&L Constructions Qld Pty Ltd (No 2) [2023] QCATA 107
3 citations
Jump To
Cite 1 - [2023] QCATA 107
Cite 2 - [2023] QCATA 107
Cite 3 - [2023] QCATA 107
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
2 citations
Jump To
Cite 1 - [2010] QCAT 412
Cite 2 - [2010] QCAT 412
Tamawood Ltd v Paans[2005] 2 Qd R 101; [2005] QCA 111
2 citations
Jump To
Cite 1 - [2005] QCA 111
Cite 2 - [2005] QCA 111
Thompson v Cannon [2020] QCAT 109
3 citations
Jump To
Cite 1 - [2020] QCAT 109
Cite 2 - [2020] QCAT 109
Cite 3 - [2020] QCAT 109
Wharton v Duffy Constructions (QLD) Pty Ltd [2016] QCATA 12
1 citation
Jump To
Cite 1 - [2016] QCATA 12

Cases Citing

Case NameFull CitationFrequency
Health Ombudsman v Kumar [2024] QCAT 1322 citations
Rosecove Pty Ltd v Queensland Building and Construction Commission [2024] QCAT 5203 citations
1

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