2K Constructions Pty Ltd and Anor v QBCC No 2 [2023] QCAT 83

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: 2K Constructions Pty Ltd and Anor v QBCC No 2 [2023] QCAT 83 PARTIES: 2K CONSTRUCTIONS PTY LTD (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: GAR028-19 GAR029-20 MATTER TYPE: Building matters DELIVERED ON: 27 February 2023 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member King-Scott ORDERS: Queensland Building and Construction Commission pay 2K Constructions Pty Ltd its costs fixed at $35,000.00 by 4:00 pm 31 March 2023. Application by Shandon International Pty Ltd is dismissed. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – unnecessarily disadvantaging a party – interests of justice PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – reopening application s 138 Queensland Civil and Administrative Tribunal Act 2009 (Qld) Queensland Building and Construction Commission Act 1991 (Qld), s 77. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 138 Brisbane Marine Pilots Pty Ltd v General Manager Marine Safety Qld [2022] QCAT 225 Marzini v Health Ombudsman (No 4) [2020] QCAT 365 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No2) [2010] QCAT 412 Thompson v Cannon [2020] QCAT 109 -- 1 of 4 -- 2 Turner v Macrossan & Amiet Pty Ltd (No 2) (2016] QCAT 255 Valuers Board of Queensland v Murphy [2022] QCAT 295 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: L.D. Bowden of Counsel, instructed by Mr N Radlich Respondent: S Nean solicitor for the Commission B Hartnet solicitor for Shandon International Pty Ltd REASONS FOR DECISION [1] This matter was heard in May 2022 and my decision was delivered on 24 October 2022. I invited the parties to make written submissions in respect to costs. Those have now been received. [2] The Applicant 2K Constructions Pty Ltd (2K Constructions) was successful in its claim to set aside the Direction to Rectify and the Scope of Works decisions. Shandon International Pty Ltd (Shandon) was unsuccessful in setting aside the decision of the Queensland Building and Construction Commission (the Commission). [3] 2K Constructions seeks an award of costs of $55,589.36 from the Commission [4] The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides: 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. (2) … (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- -- 2 of 4 -- 3 (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. [5] As the proceedings are not a ‘building dispute’ as defined in the Queensland Building and Construction Commission Act 1991 (Qld) the costs provisions in section 77 of the QCAT Act do not apply. [6] Counsel for 2K Constructions observes that there is a divergence of opinion on how the discretion should be exercised. The Commission agrees. What has been described as the traditional approach, is that an order for costs ought not to be made unless there are compelling reasons for not following the default position that there be no order as to costs as found in s 100 of the QCAT Act.1 [7] The alternative view is that found in the second body of opinion, that treats s 102(1) as a discreet source of power to award costs, so that an order for costs may be made if it is in the interests of justice to do so.2 [8] Both parties have provided extensive submissions on the divergence of opinion on the issue. I mean no disrespect to the parties in not referring in detail to those submissions but the evidence at the hearing is such that the distinction is not important in deciding the issue. [9] On either basis I consider the Commission should pay 2K Constructions costs. [10] 2K Constructions submits that in the interest of justice a costs order should be made for the following reasons: (a) 2K Constructions faced significant financial consequences if it failed in its application; (b) The matter was complex both factually and legally which warranted legal representation; (c) The respective financial position of the parties being a small builder as opposed to a State body. [11] I also consider that the Commission has unnecessarily disadvantaged 2K Constructions for the following reasons. The Commission proceeded with the Direction to Rectify on a misunderstanding of the evidence as exemplified by the Statement of Contractual Agreement3 it prepared. I found that document to contain several errors particularly that the quotation provided by 2K 1 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412; Brisbane Marine Pilots Pty Ltd v General Manager Marine Safety Qld [2022] QCAT 225; Valuers Board of Queensland v Murphy [2022] QCAT 295. 2 Turner v Macrossan & Amiet Pty Ltd (No 2) (2016] QCAT 255; Thompson v Cannon [2020] QCAT 109; Marzini v Health Ombudsman (No 4) [2020] QCAT 365. 3 Trial Bundle pp 446-448. -- 3 of 4 -- 4 Constructions which was alleged to be the final agreement, in fact, was not the final agreement .4 [12] That error was perpetuated and found its way into the Statement of Reasons. Yet, it was only at the hearing that the Commission appeared to accept that the quotation was not the agreement. Mr Kukas’ evidence was not challenged on the issue.5 [13] The Direction to Rectify would have been justified had the Statement of Contractual Agreement been accurate. But it was not. Had the Commission come to that conclusion, at an earlier time, then the issue of ‘fairness’ would have been properly considered. [14] 2K Constructions’ costs are $55,5589.36 which represent solicitor/client costs which I consider to be reasonable. On a party and party basis, I consider the costs would be approximately two thirds of that sum. I fix costs at $35,000.00. [15] No cost orders are sought by or against Shandon. Reopening [16] Shandon has filed an application for reopening, correction, renewal or amendment of my decision made on 24 October 2022 not to make a non-publication order. At the time, I gave my reasons for doing so. [17] Directions were made on 17 January 2023 that, as Shandon had appealed the decision, it file written submissions to show cause why the application should not be dismissed. It was pointed out to Shandon that the application was misconceived given that Shandon had appealed the decision of 24 October 2022. [18] Shandon has filed written submissions in accordance with the directions of 17 January 2023. It submits that I misapprehended the relief sought in the earlier application but does not explain or detail the reasons why. [19] I refused the application following the hearing on the basis that at the time the application lacked detail and was not made at the hearing but in written submissions submitted sometime after the hearing and that all the material had been available to the public for several years. [20] In the present application Shandon seeks an order to avoid endangering the physical and mental health of Mr and Mrs Hartnett but no evidence is placed before the Tribunal. [21] Shandon has not established a basis for a reopening or a different order. I refuse the application. 4 Reasons 2K Constructions Pty Ltd and Anor v QBCC [2022] QCAT [18] and [20]. 5 Reasons 2K Constructions Pty Ltd and Anor v QBCC, paragraph [22]. -- 4 of 4 --