Boys v Imperial Homes (Qld) Pty Ltd (No 2) [2024] QCATA 79

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Boys v Imperial Homes (Qld) Pty Ltd (No 2) [2024] QCATA 79 PARTIES: DANIEL JAY BOYS (applicant/appellant) v IMPERIAL HOMES (QLD) PTY LTD (respondent) APPLICATION NO/S: APL270-20 ORIGINATING APPLICATION NO/S: BDL252-18 MATTER TYPE: Appeals DELIVERED ON: 7 August 2024 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judicial Member D J McGill SC ORDERS: Order the appellant to pay the respondent’s costs of and incidental to the appeal and application for leave to appeal, to be assessed on the standard basis for a matter in the District Court of Queensland. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Building dispute – power to award costs – costs of appeal and application for leave to appeal – appeal largely unsuccessful, application unsuccessful – whether indemnity costs appropriate Allen v Contrast Constructions Pty Ltd (No 3) [2021] QCATA 143 Built Queensland Pty Ltd v Pro-invest Australian Hospitality Opportunity (ST) Pty Ltd (No 2) [2023] QCA 140 Castro v Hillery [2002] QCA 428 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers – Western Australian Branch [1993] FCA 70 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 Oshlack v Richmond River Council (1998) 193 CLR 72 Partington v Urquhart (No 4) [2019] QCATA 96 -- 1 of 5 -- 2 Terera v Clifford [2016] QCATA 25 Queensland Building and Construction Commission Act 1991 (Qld) s 77(3)(h) 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: S McNeil, instructed by Taylor David Lawyers (not involved in the costs issue.) Respondent: M Williams, instructed by Becker Watt Lawyers REASONS FOR DECISION [1] This was an appeal and application for leave to appeal from the decision of a Member in a building dispute. There were twenty-five grounds of appeal, of which three were abandoned at the hearing, and two were effectively meaningless or duplicated. They did not distinguish between questions of law and questions of fact. In the event, part of one of the questions of law succeeded, but the appeal on questions of law was otherwise dismissed, and leave to appeal on a question of fact, or of mixed fact and law, was refused. My decision with reasons was published on 15 March 2024.1 [2] In giving the substantive decision I gave directions for submissions as to costs to be made in writing. The respondent sought an order that the appellant pay its costs of and incidental to the appeal (and application for leave to appeal), on the indemnity basis, or failing that, on the standard basis, according to the scale for matters in the District Court. No submissions in writing have been received from the appellant, despite having been chased up.2 This is my decision on costs, and reasons for it. [3] The main issue in the appeal was whether the Member had erred in failing to find that the appellant had validly terminated the building contract. On that the appellant failed. There were also a number of subsidiary disputes, including disputes over the Member’s findings on a number of claims for damages for defective or incomplete work. One of the matters that was complained about was that the Member had failed to take into account that the figures given by the expert witnesses relating to the cost of rectification had been net of goods and services tax, so that the figure found as the cost of rectification work due to the respondent’s breaches of contract should have been increased by ten percent to allow for that tax. [4] As presented, this was mixed up with an issue about whether the Member had erred in not allowing a loading on the building costs to cover what the appellant’s expert said was the additional cost which would have to be incurred by the appellant to have this work done as rectification work, rather than as part of an ordinary building project. That was a matter in contention. On the other hand, during the appeal the respondent did not offer any submissions, orally or in writing, resisting the challenge to the failure to allow goods and services tax on the rectification work. The effect of the appellant’s success on this issue was that the amount he had been ordered to pay to the respondent, 1 [2024] QCATA 25. 2 By the associate to the Deputy President. -- 2 of 5 -- 3 $24,260.25, was reduced to $22,173.45. This was very different from the result sought by the appellant in the appeal. The law [5] The Queensland Building and Construction Commission Act 1991 (Qld) s 77(3)(h) provides that in building disputes, which this was, the Tribunal has power to award costs. For the reasons given in Allen v Contrast Constructions Pty Ltd (No 3) [2021] QCATA 143 at [28] – [33], with which I respectfully agree, as a result the terms of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 100 and s 102 are not applicable. It has been said that this gives the Tribunal a broad general discretion to award costs as may be appropriate in the particular circumstances.3 [6] There is no requirement to start from a position that there be no order for costs, and then to consider if there is good reason to depart from that position. In Oshlack v Richmond River Council (1998) 193 CLR 72 at [67] McHugh J said that broad reasons of fairness and policy mean that, where there is a power to award legal costs, a successful party who has incurred legal costs should ordinarily recover costs as an expense incurred in achieving success. Building disputes are essentially about money, which give them a commercial flavour, and the cost of legal proceedings reflects in a practical way on the justice of such proceedings, if success has to be purchased with unrecompensed legal expense. Such an approach has been adopted in previous decisions of the Appeal Tribunal.4 Submissions [7] The respondent submitted that it was properly seen as the successful party as the decision had almost comprehensively favoured its position. Accordingly it was only just that it be awarded costs. As a building dispute the proceeding was inherently complex,5 and if costs were not recovered its success in the proceeding would be significantly eroded. Both parties had been given leave to be legally represented, and were legally represented.6 The submissions also referred to some matters noted earlier as background. [8] It was further submitted, in support of the application for indemnity costs, that this was an example of a party starting or continuing proceedings in wilful disregard of known facts or clearly established law, relying on Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225. It was said that the appellant had persisted in a hopeless case which on proper consideration should have been seen as such.7 Some grounds were abandoned at the hearing, and two others were criticised by the Appeal Tribunal, and one matter pursued was described as trivial.8 As well, conflicts of evidence resolved by the Member were sought to be reargued on appeal. 3 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 at [33]. 4 Terera v Clifford [2016] QCATA 25 at [65]; Partington v Urquhart (No 4) [2019] QCATA 96 at [44]. 5 Referring to comments made in Forrest v Abbott Builders (Qld) Pty Ltd [2021] QCAT 60 at [16], Cello Court Pty Ltd v Body Corporate for Cello Court CTS CTS 42339 [2021] QCATA 62 at [24] and Grasso v CMG Consulting Engineers Pty Ltd [2011] QCATA 244 at [20]. 6 Referring to Tamawood Ltd v Paans [2005] 2 Qd R 101 at [30]. 7 J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers – Western Australian Branch [1993] FCA 70, per French J. 8 [2023] QCATA 169 at [116]. -- 3 of 5 -- 4 [9] The appellant had made separate attempts to have the decision at first instance, and the decision as to costs, stayed, both being unsuccessful. He made several requests for extensions of time, resulting in delays to the appeal, and sought to reopen the original hearing after ten months, to adduce additional evidence, unsuccessfully. Consideration [10] In my opinion, the most important (but not the only relevant) factor is that the respondent was successful in almost all the issues decided on the appeal and application for leave to appeal, and no part of the respondent’s legal costs appear to have been directed to resisting the one issue on which the appellant succeeded, a relatively minor issue in the overall dispute.9 Other factors I consider relevant are: (a) The matter was an appeal, where the appellant had already had one hearing and determination of the matters in dispute. (b) The dispute was about money, where the impact of the cost of litigation is most relevant to the practical commercial outcome for the parties. (c) Both parties were given leave to be legally represented, and both were, indeed by counsel. The proceeding was very similar to an appeal as conducted in a court. [11] In these circumstances, I consider that it is appropriate to order that the appellant pay the respondent’s costs of and incidental to the appeal and application for leave to appeal. That leaves the question of whether costs should be ordered on the indemnity basis. As to that, it has long been recognised in the courts that the ordinary measure of costs under a costs order is to be what is now called in Queensland the “standard basis”, even though it is recognised that routinely it does not give the receiving party a full indemnity for the costs in fact incurred. Costs assessed on a more generous basis are reserved for special cases, where there is some particular feature justifying what is really very like a punitive element in the costs order.10 Generally this is based on the paying party’s having conducted the proceeding in a manner which was seriously inappropriate, as shown by the authorities relied on by the respondent.11 [12] Pursuit of a hopeless case is one of the recognised categories of cases where such costs can be ordered, but that is generally only the case where all of the claim is hopeless. Although in the present case some grounds of appeal were not pursued in submissions, and a couple overlapped, the matters which were argued were not matters which I would regard as hopeless. That is not shown by the mere fact that a submission was not upheld, and my impression is that all the matters argued were at least arguable. One issue was trivial, but little time was spent on it, and it is in the nature of a building dispute that it tends to consist of a collection of factual matters, many of which are in themselves not very significant. I do not consider that this is a matter where the party, if properly advised, could not reasonably have pursued the appeal. 9 See Built Queensland Pty Ltd v Pro-invest Australian Hospitality Opportunity (ST) Pty Ltd (No 2) [2023] QCA 140 at [27]. 10 For present purposes I am leaving out of consideration matters where a special order for costs is made because of a failure to accept an offer to settle, either under an Act, rules of court or as a matter of discretion. No relevant offer to settle was relied on. 11 See generally Dal Pont, the Law of Costs (4th Ed, 2018) paragraphs 16.45 – 16.68. -- 4 of 5 -- 5 [13] It is unusual for an Appeal Tribunal to reconsider the resolution of a conflict of evidence, but it can happen, and there were arguable grounds for disputing some of the findings, although none of them succeeded. Abandoning some grounds at the hearing will not necessarily, or I suspect even usually, lead to an order for indemnity costs.12 Although there had been some delay on the part of the appellant, and some unsuccessful applications, these were matters where costs orders could have been sought and decided by whoever decided those applications. I would not be willing to find that the appellant was deliberately delaying the hearing of the appeal, or deliberately obstructing the appellant’s liability to the respondent. Overall, I am not satisfied that this matter falls into the class of matters where the behaviour of the appellant was sufficiently inappropriate to justify ordering costs on the indemnity basis. [14] I therefore order the appellant to pay the respondent’s costs of and incidental to the appeal and application for leave to appeal, to be assessed on the standard basis for a matter in the District Court of Queensland. 12 See for example Castro v Hillery [2002] QCA 428 at [2], [4]. -- 5 of 5 --