BAP Developments Pty Ltd as Nominee v South East Civil and Drainage Contractors Pty Ltd [2014] QCAT 229

CITATION: BAP Developments Pty Ltd as Nominee v South East Civil and Drainage Contractors Pty Ltd [2014] QCAT 229 PARTIES: BAP Developments Pty Ltd as Nominee (Applicant) v South East Civil and Drainage Contractors Pty Ltd (Respondent) APPLICATION NUMBER: BDL197-13 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Gardiner DELIVERED ON: 27 May 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. BAP Developments Pty Ltd as Nominee pay to South East Civil and Drainage Contractors Pty Ltd costs of and incidental to this application on a standard basis calculated on the District Court Scale within 28 days of agreement or assessment. 2. South East Civil and Drainage Contractors Pty Ltd shall deliver an assessment of its costs to BAP Developments Pty Ltd the by 13 June 2014. 3. BAP Developments Pty Ltd shall deliver any response to South East Civil and Drainage Contractors Pty Ltd’s assessment by 13 July 2014. 4. If the parties cannot agree an amount for costs by 13 August 2014, costs shall be determined by an assessor appointed by the Principal Registrar. CATCHWORDS: BUILDING MATTER – COSTS – where no jurisdiction found for a commercial building -- 1 of 5 -- 2 matter – where applicant did not appear at hearing – where sufficient information on file for matter to be determined – where no jurisdiction found – whether costs should be awarded Queensland Building and Construction Commission Act 1991 (Qld), s 77 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142; followed Lyons v Dreamstarter Pty Ltd [2012] QCATA 071; followed APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] This is an application that came before the Tribunal for a hearing on 18 February 2014. At the hearing there was no appearance by or on behalf of BAP Developments Pty Ltd. [2] The application was dismissed and directions made for South East Civil and Drainage Contractors Pty Ltd to file any application for costs. [3] In accordance with the directions, the parties have now filed submissions in relation to costs. South East Civil seeks an award of costs on an indemnity basis and has asked for a fixed amount of $10,000. [4] These are the reasons on the determination of this cost application. Submissions [5] South East Civil, the applicant in this cost application, submits as follows:  The appropriate law to be applied in relation to this costs application is s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).  South East Civil seems to submit this in support of the costs application on the basis that the Tribunal found that there was no jurisdiction under the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) to hear the commercial building dispute application filed by BAP Developments on 12 August 2013. [6] BAP Developments, the respondent to this costs application, agrees with South East Civil in its submissions concerning this costs application and -- 2 of 5 -- 3 also states that the law to be applied in this costs application is contained in s 100 and s 102 of the QCAT Act. [7] BAP Developments opposes the costs application but ultimately says that if costs are to be awarded against the company, it should not be on an indemnity basis and should be on the basis of costs to be assessed on the standard District Court scale. [8] Both parties inherently argue that because the Tribunal found that there was no jurisdiction under the QBCC Act to hear this matter that costs should be argued under the QCAT Act. Discussion [9] The question to be answered by the Tribunal in the substantive matter was whether s 76 of the QBCC Act classified the work done by South East Civil for BAP Developments as Tribunal work. The conclusion reached by the Tribunal was that the work was a road as defined under the Land Act 1994 (Qld) and therefore outside the jurisdiction of the Tribunal under the QBCC Act. [10] Both parties have jumped to the conclusion that therefore the costs must be argued under the QCAT Act. [11] I do not agree with this analysis of this costs argument. The question before the Tribunal was jurisdiction under the QBCC Act. The decision was that there was not jurisdiction but I do not accept that this excludes the Tribunal from considering costs falling out from this application under s 77(2)(h) of the QBCC Act. [12] The effect of this section, which modifies the general position under the QCAT Act, is to give the Tribunal a broad general power to award costs in cases caught by these enabling provisions.1 This enabling Act allows that while the power must be exercised judicially it is ‘in markedly different terms from s 100 of the QCAT Act’2 which starts with party bearing its own costs. [13] As his Honour the President of QCAT determined in the appeal decision of Lyons v Dreamstarter Pty Ltd3 about s 77, The discretion to award costs starts with the proposition that it is just and reasonable that a party who causes another to incur costs should reimburse the other party for them. Otherwise the factors affecting the discretion will vary in each. [14] BAP Developments brought an application in a commercial dispute against South East Civil for the work done on a road in a land development undertaken by BAP Developments which involved the creation of roads within a subdivision. 1 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 at [33]. 2 Lyons v Dreamstarter Pty Ltd [2012] QCATA 071 at [10]. 3 Ibid at [11]. -- 3 of 5 -- 4 [15] BAP Developments did not appear at the hearing but this Tribunal found sufficient information on the file to proceed with the hearing in any event. [16] An examination of the QBCC Act and the very Act under which roads are defined points to an exclusion of roads. An examination of the extensive case law defining a road should have made it apparent to BAP Developments that the likely outcome of any hearing before the Tribunal was that the work complained of would be excluded as Tribunal work under s 77 of the QBCC Act. [17] Despite this fairly straight forward examination of the statutory requirements of Tribunal work and the longstanding case law defining a road, the matter went to a hearing. [18] BAP Developments did not appear at that hearing. [19] BAP Developments submit that South East Civil did not succeed on the merits but rather succeeded on a technicality. [20] I do not accept this argument for the reasons given above. An examination of the law in this area would have shown BAP Developments that, in all likelihood, the work complained of was excluded from the QBCC Act. [21] BAP Developments were wholly unsuccessful in this matter. Not only did it not appear at the hearing but on the legal argument before the Tribunal, the substantive matter was also lost by it as no jurisdiction was found. [22] I am satisfied that in the circumstances it is appropriate that BAP Developments pay the costs of South East Civil in this action. [23] South East Civil asked for these costs on an indemnity basis. The reason that they give for this is that the interests of justice would favour such an order because of the nature and complexity of the dispute; the relative strengths of the matter; and the financial circumstances of the parties. [24] I do not accept that the matter to be determined was particularly complex although I do accept in the final analysis South East Civil did have a strong case. I have no evidence concerning the financial circumstances of the parties apart from the submission by South East Civil that they are a small company and that BAP Developments is a property developer. [25] Further I have no way of knowing why an amount of $10,000 has been fixed by the applicant, there being no evidence provided to me of a breakdown of costs incurred by South East Civil. [26] In the circumstances I find it is appropriate for a costs order to be awarded the scale is generally the District Court Scale and it is appropriate that costs be assessed on the basis of that standard scale, not on an indemnity basis. I will make orders in those terms. -- 4 of 5 -- 5 Costs under the QCAT Act [27] If I am wrong about the application of s 77 of the QBCC Act and as submitted by both parties the costs should be considered under s 100 and s 102 of the QCAT Act I would make the following findings. [28] Section 100 of the QCAT Act requires that each party usually bear their own costs, other than as provided under this Act or an enabling Act. [29] Section 102 of the QCAT Act allows a Tribunal to make an order requiring a party to pay all or a stated part of costs of another to the proceedings if the Tribunal considers the interests of justice require the making of this order. [30] Section 102(3) sets out the matters the Tribunal may have regard to in making this award. I have (under s 77 discussed above) considered the nature and complexity of dispute; the relative strengths of the matter; and the financial circumstances of the parties. BAP Developments submits that the question of jurisdiction is a basic matter and that indemnity costs should not be awarded. [31] South East Civil was given leave to be legally represented in this matter on 9 December 2013. [32] I am satisfied under s 102 of the QCAT Act, having taken into account the matters contained s 102(3) that it is in the interests of justice to make the order as proposed above and under this legislation, I would make the same order as I have concluded under s 77 of the QBCC Act. -- 5 of 5 --