Lifestyle Resorts Group Pty Ltd v Geoff Burr Painting Pty Ltd
[2025] QCATA 2
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- Unreported Judgment
- Lifestyle Resorts Group Pty Ltd v Geoff Burr Painting Pty Ltd[2025] QCATA 2
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Lifestyle Resorts Group Pty Ltd v Geoff Burr Painting Pty Ltd[2025] QCATA 2
Lifestyle Resorts Group Pty Ltd v Geoff Burr Painting Pty Ltd[2025] QCATA 2
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Lifestyle Resorts Group Pty Ltd v Geoff Burr Painting Pty Ltd & Anor [2025] QCATA 2 |
PARTIES: | LIFESTYLE RESORTS group PTY LTD (applicant/appellant) v geoff burr painting pty ltd (first respondent) AND HAYBUILD GROUP PTY LTD (second respondent) |
APPLICATION NO/S: | APL295-21 |
ORIGINATING APPLICATION NO/S: | MCDO108-21 (Beenleigh) |
MATTER TYPE: | Appeals |
DELIVERED ON: | 3 January 2025 |
HEARD AT: | Brisbane |
DECISION OF: | A/Senior Member Lember |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – COSTS – where applicant applied for costs following successful appeal – where Tribunal originally made payment orders on a minor debt application that was a building dispute – where error of law had effect of conferring jurisdiction when there was none – where applicant did not question jurisdiction at first instance or on appeal Queensland Building and Construction Commission Act 1991 (Qld) s 77 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 12, s 32, s 100, s 102 Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 Annandale Pharmacies (NQ) Pty Ltd v The Angliss Estate (Annandale) Pty Ltd (No. 2) Pty Ltd [2019] QCAT 62 Lifestyle Resorts Group Pty Ltd v Geoff Burr Painting Pty Ltd & Anor [2022] QCATA 109 Siena Indiana Pty Ltd v Property Technologies Pty Ltd [2020] QCATA 79 |
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
What is this application about?
- [1]On 6 October 2021 a decision was made in the Tribunal’s minor civil dispute (MCD) jurisdiction ordering Lifestyle Resorts Group Pty Ltd (Lifestyle Resorts) to pay to Geoff Burr Painting Pty Ltd (Burr) the sum of $10,866.00 within fourteen days (the decision). By a decision made 10 March 2023 the Appeal Tribunal granted leave to appeal the decision, allowed the appeal, set the decision aside and substituted the decision with a decision transferring the application in minor civil dispute to the building list.
- [2]Lifestyle Resorts now seeks an order for its costs on the appeal.
The first instance decision
- [3]Burr sought payment of an invoice it rendered for painting works performed by it on a townhouse property development. The Tribunal observed at first instance that Burr’s claim was “reasonably simple. He was asked to do a job. He did the job. He sent an invoice. He hasn’t been paid”.[1]
- [4]Complexity arose in identifying the nature of the services provided, and the contractual relationship between Lifestyle Resorts and Haybuild in respect of which the Tribunal was presented with “two starkly different versions”.[2]
- [5]Neither the parties, nor the Tribunal, addressed the question of jurisdiction at first instance, nor was raised on appeal. However, it was apparent to the Appeal Tribunal that s 12 of the QCAT Act read with s 77 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) prevented the debt claim from being heard as a minor civil dispute, because it was also a ‘building dispute’.[3] The Tribunal at first instance therefore fell into an error of law in deciding Burr’s claim, and, for that reason, leave to appeal was granted, the appeal allowed and the Decision set aside.
Legislative framework for costs applications
- [6]
- [7]In deciding whether to award costs in a matter the Tribunal may have regard to factors such as:[6]
- whether a party to a proceeding acted in a way that unnecessarily disadvantages another party to the proceeding;
- the nature and complexity of the dispute the subject of the proceeding;
- the relative strengths of the claims made by each of the parties to the proceeding;
- the financial circumstances of the parties; and
- anything else the Tribunal considers relevant.
- [8]These factors are not grounds for awarding costs but factors to be considered in determining whether, in a particular case, the interests of justice require a costs order.[7]
Submissions
- [9]Lifestyle Resorts submits that:
- Burr unnecessarily disadvantaged Lifestyle Resorts by bringing the application in the incorrect jurisdiction, which led to the costs to respond to the application being incurred unnecessarily,
- the acknowledged complexity of the dispute favours an award of costs in the proceeding, and
- parties were granted leave to be legally represented in the proceeding which also favours an award of costs.[8]
- [10]Lifestyle Resorts also argue that, as the dispute is a building dispute, the costs regime applicable should be the ‘costs follow the event’ approach that applies in building disputes pursuant to section 77(3)(h) of the QBCC Act rather that the QCAT Act.
Decision
- [11]The application at first instance was brought, albeit incorrectly in the MCD jurisdiction and it was heard and determined as such. Whilst the dispute ought properly to have been brought as a building dispute, it wasn’t, therefore the costs regime under the QBCC Act does not apply. The appeal proceeding was conducted as an appeal from a minor civil dispute, that first required leave to appeal. The applicable costs regime is that which falls under the QCAT Act.
- [12]Lifestyle Resorts has not satisfied the Appeal Tribunal that the interests of justice require an award of costs in its favour. Whilst the MCD application was brought in error as to jurisdiction, the error was not identified or argued by Lifestyle Resorts, despite it being legally represented, at first instance or on appeal. Respectfully, a properly formed response to the minor debt proceeding might have prevented the Tribunal at first instance being led into error and the necessity for the appeal. Further, Lifestyle Resorts has not established that Burr’s claim lacks merit; there has been no finding that Lifestyle Resorts is not liable to Burr from the work Burr undertook – it is simply the case that Burr’s claim was brought in the wrong jurisdiction. The interests of justice do not require a costs order be made against Burr, and each party should bear its own costs in that case.
Footnotes
[1]Transcript, Reasons for Decision, 1-23 at 45.
[2]Lifestyle Resorts Group Pty Ltd v Geoff Burr Painting Pty Ltd & Anor [2022] QCATA 109 at [14].
[3]Siena Indiana Pty Ltd v Property Technologies Pty Ltd [2020] QCATA 79.
[4]QCAT Act, s 100.
[5]Ibid, s 102.
[6]Ibid s 102(3).
[7]Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 at [9].
[8]Annandale Pharmacies (NQ) Pty Ltd v The Angliss Estate (Annandale) Pty Ltd (No. 2) Pty Ltd [2019] QCAT 62.