Austin v Queensland Building and Construction Commission [2025] QCAT 328

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Austin v Queensland Building and Construction Commission (costs) [2025] QCAT 328 PARTIES: KATE AUSTIN (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: GAR003-22 MATTER TYPE: Determination of Costs DELIVERED ON: 28 August 2025 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judicial Member WA Isdale ORDERS: Each party is to bear their own costs for the proceeding. CATCHWORDS: PROCEDURE – COSTS – DISCRETION TO AWARD COSTS – where ss 100 and 102 of the Queensland Civil and Administrative Tribunal Act 2009 require parties to bear their own costs unless ‘in the interests of justice’ – where proceeding has been the subject of appeal to Court of Appeal – whether it is in the ‘interests of justice’ to award costs to the applicant Queensland Civil and Administrative Tribunal Act 2009 s 48, s 100, s 102, s 107 Queensland Civil and Administrative Tribunal Rules 2009 r 86 Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364, cited Better Homes Queensland Pty Ltd v O’Reilly and Anor [2012] QCAT 424, cited Grasso & Anorv v CMG Consulting Engineers Pty Ltd [2012] QCATA 32, considered Health Ombudsman v George du Toit [2024] QCA 235, followed Queensland Building and Construction Commission v Whalley [2018] QCATA 38, cited Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, cited -- 1 of 8 -- 2 Rosecove Pty Ltd v Queensland Building and Construction Commission and Anor (costs) [2024] QCAT 520, considered Tamawood Ltd & Anor v Paans [2005] QCA 111, considered 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) Applicant: MK Dowse, Attwood Marshall, solicitors for the applicant Respondent: E Yarascavitch for the respondent REASONS FOR DECISION Background [1] The applicant sought to have the respondent direct the company which she had contracted to perform certain building works to rectify some of those works. [2] This Tribunal, after a hearing on the merits, ordered that the company rectify the building work in accordance with the requirements of the relevant local authority. [3] The respondent commenced proceedings in the Appeal Tribunal of the Queensland Civil and Administrative Tribunal against the decision. [4] After being required to provide submissions as to why the appeal should not be dismissed for want of jurisdiction, the respondent (QBCC) withdrew its appeal and sought an extension of time to appeal in the Court of Appeal. [5] The Court of Appeal granted the extension of time and allowed the appeal. The essence of the decision of the Court of Appeal was that the orders of the Tribunal were defective in being excessively particular. The matter was remitted to the Tribunal. [6] The Tribunal subsequently made an order by consent of the parties in respect of the matter that had been before the Court of Appeal. [7] The applicant sought to enlarge the proceedings before the Tribunal to include the respondent’s decision to the effect that the Queensland Home Warranty Scheme was unable to provide cover in respect of the applicant’s matters of complaint. This had been decided at the same time the respondent decided to not issue a direction to the company to rectify the works. [8] It is not necessary to examine the minutiae of the proceeding in this Tribunal other than to observe that on 6 July 2022 the Tribunal directed, inter alia, that – 1. The application to review a decision filed on 23 December 2021 is taken to be an application to review the decision made by the Queensland Building and Construction Commission on 9 August 2021 not to issue a direction to rectify to Cummins Constructions Pty Ltd. [9] From this time onwards, what was before the Tribunal was this and this alone. [10] The hearing on the merits in this Tribunal was in relation to this matter only. -- 2 of 8 -- 3 [11] When the matter was before the Tribunal on 15 August 2025, it made the consent order in the required form so as to dispose of this matter and gave ex tempore reasons why it could not, in this matter, consider something related to the decision by the respondent concerning the Queensland Home Warranty Scheme. [12] On that date, the Tribunal also ordered, in relation to the applicant’s application for costs that written submissions could be made. Both parties have provided their submissions. The statutory framework [13] The respondent points to Division 6 of Chapter 2 of the Queensland Civil Administrative Tribunal Act 2009 (‘QCAT Act’), particularly sections 100 and 102 which, relevantly, provide as follows – 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) 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. … (3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following— (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); (b) the nature and complexity of the dispute the subject of the proceeding; (c) the relative strengths of the claims made by each of the parties to the proceeding; (d) for a proceeding for the review of a reviewable decision— (i) whether the applicant was afforded natural justice by the decision-maker for the decision; and (ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits; (e) the financial circumstances of the parties to the proceeding; (f) anything else the tribunal considers relevant. [14] Section 48(1) provides that – 48 Dismissing, striking out or deciding if party causing disadvantage (1) This section applies if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by— (a) not complying with a tribunal order or direction without reasonable excuse; or -- 3 of 8 -- 4 (b) not complying with this Act, an enabling Act or the rules; or (c) asking for an adjournment as a result of conduct mentioned in paragraph (a) or (b); or (d) causing an adjournment; or (e) attempting to deceive another party or the tribunal; or (f) vexatiously conducting the proceeding; or (g) failing to attend conciliation, mediation or the hearing of the proceeding without reasonable excuse. [15] Section 107 is also relevant; it provides – 107 Fixing or assessing costs (1) If the tribunal makes a costs order under this Act or an enabling Act, the tribunal must fix the costs if possible. (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. (3) The rules may provide that costs must be assessed by reference to a scale under the rules applying to a court. [16] The respondent also points to Rule 86 of the Queensland Civil and Administrative Tribunal Rules 2009 (‘QCAT Rules’). It provides that – 86 Additional power to award costs if particular offers to settle rejected (1) This rule applies if— (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 (b) the other party does not accept the offer within the time the offer is open; and (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. (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. (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. (4) In deciding whether a decision is or is not more favourable to a party than an offer, the tribunal must— (a) take into account any costs it would have awarded on the date the offer was given to the other party; and (b) disregard any interest or costs it awarded relating to any period after the date the offer was given to the other party. -- 4 of 8 -- 5 The costs application [17] The applicant seeks the costs of the proceedings before this Tribunal. The application is supported by the affidavit of the applicant’s solicitor, sworn on 22 August 2025. [18] The affidavit has relevant tax invoices and costs agreements exhibited to it. [19] The solicitor explains that if the applicant is awarded costs on an indemnity basis, the costs would be of the order of $15,867.90. If the costs were awarded on a standard basis, the costs would be of the order of $12,549.60. [20] The respondent submits that the parties should bear their own costs or, if costs are awarded, they be assessed on the standard basis on the District Court scale, unless agreed. The applicant’s submissions [21] The applicant submits that the Tribunal could order costs in this case and that the expression “the interests of justice” in section 102(1) confers a broad discretionary power.1 [22] The applicant also refers to authority for the proposition that considerations in section 102(3) are factors that may be taken into account, not grounds for awarding costs.2 [23] It is submitted that the respondent’s incorrect appeal to the Appeal Tribunal caused a significant delay in finalising the matter, in the order of several months. This is factually correct. [24] It is also submitted that the dispute was complex, involving technical legislation and expert evidence.3 [25] The applicant particularly stresses that the proceedings have been on foot for over 3 years and 7 months, both parties have engaged experts and that disputes in building matters are complex.4 [26] The applicant also submits that she was wholly successful in her application for review. [27] The applicant submits that the respondent acted contrary to the interests of justice by failing to inform the Tribunal about the effect of any order in circumstances where the builder is no longer a legal entity. The applicant subsequently brought proceedings in the Supreme Court to have the building company restored as a legal entity. [28] The applicant has suffered significant delay and this is submitted to be a factor in favour of a costs order sought. [29] Concerning the financial circumstances of the parties, referred to in section 102(3)(e), the applicant submits that the respondent’s conduct has caused the applicant to incur increased legal costs, significantly impacting the applicant’s financial circumstances. 1 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412. 2 Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364. 3 Better Homes Queensland Pty Ltd v O’Reilly and Anor [2012] QCAT 424. 4 Grasso & Anorv v CMG Consulting Engineers Pty Ltd [2012] QCATA 32. -- 5 of 8 -- 6 [30] It is pointed out that on 8 July 2021 the parties were granted leave to be legally represented and that in Tamawood Ltd & Anor v Paans5 it was noted that the fact that the parties were justified in engaging legal representation may, in some circumstances, be itself a sufficient basis for concluding that the interests of justice warrant the exercise of discretion to award costs in favour of the successful party, at least in the absence of any countervailing consideration. [31] The applicant seeks that costs be fixed by the Tribunal. Section 107 has already been referred to in that regard. The respondent’s submissions [32] The respondent submits that there is no basis to depart from the starting position in section 100, in view of the circumstances and the respondent’s function as a decision- maker. [33] The respondent sees the applicant as having been partially successful, contrary to the applicant’s submission in that regard. [34] The respondent refers to the decision in the Court of Appeal in Health Ombudsman v George du Toit.6 It points out that when sections 100 and 102 are read together the starting point is that no order for costs is to be made but the legislation authorises a costs order if the interests of justice require it. This suggests that the interests of justice must clearly support a costs order. [35] The respondent directs attention to its functions and responsibilities and its role in assisting the Tribunal as a model litigant. It refers to the remarks of Member Gordon in Rosecove Pty Ltd v Queensland Building and Construction Commission and Anor (costs).7 In that case the learned Member referred, inter alia to the “chilling effect” of costs orders on statutory bodies. [36] The respondent points out that there is no presumption that the decision being reviewed is correct and that it is not necessary to find an error in the decision.8 [37] The provisions of Rule 86 of the QCAT Rules are also referred to. [38] The respondent submits that it also achieved a measure of success in the proceedings in that the applicant was not successful in its attempt to include the application of insurance into what is now before the Tribunal. [39] Concerning the matter of financial position, the respondent submits that it has budgetary constrains and that relative financial position is not the sole determinant for present purposes. Resolution [40] The first question is that raised by section 100 of the QCAT Act and section 102 which impinges on the starting position that each party must bear their own costs. Attention must be directed to section 102. The decision in Health Ombudsman v George Du Toit provides critical guidance. 5 [2005] QCA 111 [30]. 6 [2024] QCA 235. 7 [2024] QCAT 520 [1]. 8 Queensland Building and Construction Commission v Whalley [2018] QCATA 38. -- 6 of 8 -- 7 [41] It is recognised that the case before the Court of Appeal was one where legal representation was available. It is also recognised that legal representation was permitted in this case upon it being applied for. [42] The Court of Appeal considered sections 101 and 102 of the QCAT Act broadly and its judgment is equally applicable to the construction of these provisions as they apply to this case. [43] These sections must be construed in the context of the QCAT Act as a whole.9 [44] The Tribunal deals with a wide range of matters of varying complexity and potential seriousness of outcomes.10 [45] The complexity of the matter is relevant.11 [46] Section 100 is subject to Section 102 and the discretion in Section 102(1) is wide and the interests of justice will vary according to the circumstances of each case.12 [47] The word “require” in section 102(1) is wide in meaning.13 [48] Section 102(3) describes a wide range of circumstances.14 [49] The Tribunal’s objective in being, inter alia, informal and quick is subordinate to its duty to act fairly and according to the substantial merits of the case.15 [50] In complex cases the QCAT Act contemplates a readiness to depart from the approach in minor civil disputes in favour of one more aligned with conventional litigation.16 [51] The default position of no order as to costs should not be too readily departed from.17 Section 102(3)(a) [52] Neither party acted in a way that unnecessarily disadvantaged the other. Section 48(1)(a) to (g) is considered in this regard. While the proceedings were protracted and did not proceed smoothly, this provision is not engaged. Section 102(3)(b) [53] This was a complex building dispute. Section 102(3)(c) [54] The strengths of the claims on both sides were closely matched. The applicant had merit and the respondent acted as a model litigant in accordance with the relevant principles.18 9 Health Ombudsman v George Du Toit [2024] QCA 235 [21]. 10 Ibid [22]. 11 Ibid [26]–[31]. 12 Ibid [32]. 13 Ibid [37]–[38]. 14 Ibid [40]. 15 Ibid [43]. 16 Ibid [44]. 17 Ibid [50]. 18 Queensland Model Litigant Principles, revised 4 October 2010. -- 7 of 8 -- 8 Section 102(3)(d) [55] The Tribunal is satisfied that both (i) and (ii) of section 102(3)(d) were met. Section 102(3)(e) [56] The applicant is an individual bearing the significant financial burden of these proceedings. The respondent is a statutory authority with the resources which are provided to it. It is operating within a budget structure. It is likely that, ultimately, it has access to more financial resources than the applicant. The details of the precise financial circumstances of the parties are not known. Section 102(3)(f) [57] All of the matters referred to in these reasons are also relevant here. [58] It is noted that the applicant has in fact been fully successful in the actual matter which the Tribunal had before it. The Tribunal’s decision on the merits of the dispute and the consent order made bears this out. [59] It is also noted that the applicant criticises the respondent on the basis that the respondent failed to inform the Tribunal that the building company was, at the time of the hearing, no longer a legal entity. [60] This is not able to be sustained. The company was a legal entity when the matter was brought to the Tribunal but was deregistered on 27 March 2023, well before the hearing in 2024. The respondent provided this information, in the form of a search of the records of the relevant regulator, ASIC. This was provided as part of the respondent’s written submissions dated 30 July 2024 commencing at page 178 thereof. [61] Page 178 is in an exhibit to the 40 page written submissions. It is now known that the exhibits to the submissions, although provided to QCAT, were not on the file at the time when the decision was being written. Due to that, the Tribunal Judicial Member did not have the ASIC search and interpreted statements from the legal representative for the respondent to the effect that the company was no longer registered as meaning no longer registered with the respondent as a builder. [62] This unfortunate matter was not the fault of the respondent. Conclusion [63] Taking everything into account, the Tribunal does not consider that the interests of justice require it to make the order sought of the applicant. In the circumstances, it is not necessary to consider Rule 86. [64] Accordingly, section 100 applies and the parties must each bear their own costs for the proceeding. Orders: Each party is to bear their own costs for the proceeding -- 8 of 8 --