Ahmet v Queensland Building and Construction Commission & Anor [2024] QCAT 198

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Ahmet v Queensland Building and Construction Commission & Anor [2024] QCAT 198 PARTIES: JESSICA AHMET (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (first respondent) CRAIG LOW (second respondent) APPLICATION NO/S: GAR048-20 MATTER TYPE: General administrative review matters DELIVERED ON: 8 May 2024 HEARD AT: Brisbane DECISION OF: Member Matthews ORDERS: 1. The application for costs filed by the applicant on 21 June 2022 is dismissed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – costs – whether the correct approach to costs in the tribunal under sections 100 and 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) is that these sections merge so that the true overall test is whether the interests of justice require an order for costs. ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – costs – where an applicant for an interlocutory strike out application for a review of a decision by a state agency was unsuccessful in the tribunal – where the applicant applies for the first respondent to pay costs of the interlocutory proceedings – whether a costs order should be made. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 100, s 102. Martin v Fasham Johnson Pty Ltd [2007] VSC 54 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Queensland Racing Integrity Commission v Vale [2017] -- 1 of 4 -- 2 QCATA 110 Valuers Board of Queensland v Murphy [2022] QCAT 295 Body Corporate for Padstow Place CTS 46532 & Anor v AJHJ Property Nominee Pty Ltd [2016] QCAT 481 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: Plastiras Lawyers First Respondent: Norton Rose Fulbright Australia REASONS FOR DECISION [1] The applicant has made an application for costs orders following an interlocutory application (‘summary dismissal application’) filed by the Queensland Building and Construction Commission (‘QBCC’) on 26 March 2021. [2] Pursuant to section 43(2)(b)(ii) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) both the applicant and first respondent were granted leave by the Tribunal and both were legally represented in the proceedings, namely the applicant’s application to review the review decision of the QBCC1 filed at the Tribunal on 7 February 2020. [3] Therefore, what is the proper approach and basis for the award of costs by the Tribunal in these circumstances. [4] In these circumstances section 100 and section 102 of the QCAT Act apply, and not section 77(3)(h) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) which the applicant submits is also applicable. That premise is incorrect. [5] In order for section 77(3)(h) of the QBCC Act to apply pertaining to determination of costs orders, as submitted on behalf of the applicant, it must be a building matter. [6] The interlocutory application was not filed within a building matter, but rather, a reviewable decision. Therefore, section 77 of the QBCC Act does not apply. Background [7] On 26 March 2021, the QBCC filed an application for summary dismissal pursuant to s 47 of the QCAT Act. Following an on the papers hearing, the application was dismissed on 27 April 2022, on the basis that it was the decision of the Tribunal that “to dismiss an application where disputes still existed would amount to a curtailment of review rights for affected persons”. 1 Pursuant to sections 86(1)(h), 86E and 87 of the Queensland Building and Construction Commission Act 1991 (Qld). -- 2 of 4 -- 3 [8] The matter then proceeded to a hearing which resulted in the decision of the QBCC made on 13 January 2020 to disallow the claim made under the Queensland Home Warranty scheme being confirmed. Basis for the awarding of costs [9] Pursuant to section 100 of the QCAT Act, it is clearly defined that each party to a proceeding must bear the party’s own cost for the proceeding,2 essentially, that the Tribunal by way of its statutory framework is a “no costs jurisdiction” unless, the Tribunal considers that in the “interests of justice” it should make an order for costs.3 [10] This consideration is discretionary and is determined incrementally after considering the facts and circumstances of each case,4 which if successful can include an order that a party pay all or part of the costs of another party. [11] Therefore, citing Justice Wilson, then president, the question that will usually arise is whether the circumstances relevant to the discretion inherent in the phrase, “the interests of justice” overcome the strong contra indication against costs orders in section 100 of the QCAT Act.5 [12] In accordance with section 102(3) of the QCAT Act, when considering whether it is in the interests of justice to award costs, the Tribunal may have regard to the following; (1) Whether a party is acting in a way that is unnecessarily disadvantageous to another party to the proceeding; (2) The nature and complexity of the dispute forming the subject matter of the proceeding; (3) The strength of the claims made by each of the parties to the proceedings; (4) For proceedings under the Tribunal’s review jurisdiction: (a) Whether the decision maker afforded the applicant natural justice; and (b) Whether the applicant generally enabled and helped the decision maker to make the decision subject to the review; (5) The financial circumstances of the parties; and (6) Any other circumstances the Tribunal considers relevant. [13] The Tribunal has considered and given regard to the above and all other relevant factors when considering this matter, including the filed written submissions of the parties, pertaining to the Application for costs. [14] In these circumstances, the Tribunal is not satisfied that it would be in the interests of justice to make an order for costs for the following reasons. 2 Martin v Fasham Johnson Pty Ltd [2007] VSC 54. 3 QCAT Act, s 102(1); Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412. 4 Queensland Racing Integrity Commission v Vale [2017] QCATA 110. 5 Ibid, 1. -- 3 of 4 -- 4 [15] When the summary dismissal application was filed, the Commissioner had made its position clear to the applicant for more than 10 months and retained its position throughout, therefore affording the applicant natural justice. [16] The application was made on the basis of the evidence at the time, where the applicant, at the time when the summary application was being considered and a decision had been provided, had not filed nor served all their statements of evidence. [17] The Tribunal does not consider that the first respondent had acted unreasonably, nor in an attempt to undermine the proceedings in filing the summary dismissal application even though unsuccessful. [18] The Tribunal considers it reasonable that the first respondent would “test the waters”6 at the time the interlocutory application was filed, which they are entitled to do. [19] Both parties incurred costs throughout the proceedings as represented parties, when leave was granted had the luxury of legal advice and were fully aware that the Tribunal is a “no costs” jurisdiction. [20] The reason for the applicant seeking leave for legal representation was on the basis of the complexity of the matter. Regardless, the applicant still sought leave and was willing to incur legal costs. In these circumstances when leave is granted, “whilst it is a factor in favour of awarding costs, it is not a determinative factor”.7 [21] The Tribunal considers that had compliance and prompt filing of evidence occurred, costs associated with the matter could have been avoided. [22] The Tribunal does not have any substantive evidence before it that satisfies the Tribunal that in these circumstances there is a financial disparity between the parties and therefore, the arguments of both parties pertaining to same has been weighted accordingly when considering this matter. Orders [23] The application for costs filed by the applicant on 21 June 2022 is dismissed. 6 Valuers Board of Queensland v Murphy [2022] QCAT 295. 7 Body Corporate for Padstow place CTS 46532 & Anor v AJHJ Property Nominee Pty Ltd [2016] QCAT 481. -- 4 of 4 --