Farrer & Anor v McIvor Constructions Pty Ltd & Anor [2011] QCAT 570

CITATION: Farrer & Anor v McIvor Constructions Pty Ltd & Anor [2011] QCAT 570 PARTIES: John Farrer Sharon Farrer (Applicants/Appellants) v McIvor Constructions Pty Ltd (First Respondent) Scott McIvor (Second Respondent) APPLICATION NUMBER: BDL147-11 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 23 November 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Transfer the proceeding in QCAT application BDL147-11 filed 6 June 2011 to the Supreme Court of Queensland, at Brisbane. 2. The costs of the parties in QCAT be reserved for further direction or order. 3. Liberty to all parties to apply, in writing, on seven days notice to all other parties. CATCHWORDS: BUILDING MATTER – APPLICATION TO TRANSFER TO SUPREME COURT – CLAIM FOR DAMAGES – Where claim for damages has been brought by the respondent for over $800,000 – Where the applicant amended their application to seek additional relief for rectification works and damages – Where the applicants’ claim for damages is brought under the Trade Practices Act 1974 – Where QCAT lacks the jurisdiction necessary to adjudicate the entire matter – Where matter transferred to Supreme Court -- 1 of 3 -- 2 Queensland Civil and Administrative Tribunal Act 2009, s 52 Bach v Majestic Pools and Landscapes Pty Ltd [2010] QCAT 581 cited Romark Design Contractors Pty Ltd v Hoffmeister [2010] QCAT 586 cited APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] This building dispute arises out of the construction of a dwelling house at Leura Terrace, Hawthorne, for a contract price of over $4.2 million. [2] Mr and Mrs Farrer, acting for themselves, filed an application in QCAT seeking orders against Mr McIvor in the nature of a declaration that the building contract had come to an end, and for a refund of their deposit of over $200,000. He filed a counter-application claiming damages for breach of contract of over $800,000, and for progress payments totalling more than $370,000. [3] Later both parties sought and were granted leave to be represented, and attended an unsuccessful compulsory conference in QCAT. After the conference Mr and Mrs Farrer were given leave to amend their application to seek additional relief including rectification works, and damages. Now, they seek to have the matter transferred to the Supreme Court, saying that it is large and complex and, in particular, that because their amended application raises a claim for damages under the Trade Practices Act 1974, QCAT lacks the jurisdiction necessary to adjudicate the entire matter. [4] Certainly, QCAT may lack jurisdiction to hear the claim arising under the Trade Practices Act 1974 jurisdiction1. In any event, the respondent does not oppose the application. [5] QCAT has the power to transfer proceedings to a court of competent jurisdiction if it considers that court may ‘more appropriately deal with’ the matter2. The raising of a claim in a building dispute in respect of which QCAT lacks jurisdiction is a compelling ground for the transfer of the matter to a court. The nature and size of the dispute warrants, I accept, an order that the matter be transferred to the Supreme Court of Queensland. [6] The respondent McIvor Constructions Pty Ltd argues, however, that it should have its costs because the Farrer’s amendment changed the basis upon which they claim, creating the need for the proceedings to be transferred but also, it is submitted, causing the respondent to throw away 1 Romark Design Contractors Pty Ltd v Hoffmeister [2010] QCAT 586; Bach v Majestic Pools and Landscapes Pty Ltd [2010] QCAT 581. 2 Queensland Civil and Administrative Tribunal Act 2009, s 52. -- 2 of 3 -- 3 costs it has already spent in the Tribunal. It is said, in particular, that had the applicants originally sought and obtained legal advice, those costs would not have been wasted. [7] The applicants have not responded to these submissions in any detail but contend, in short, that costs in QCAT should be reserved to the proceedings in the Supreme Court. [8] The QCAT Act contains particular provisions about costs in the Tribunal: Ch 2, Pt 6, Div 6. The usual principle is that each party bear its own costs: s 100. The Tribunal does, however, have power to make costs orders, at its discretion, and in considering applications for costs may take into account certain matters set out in s 102(3) – e.g., as is asserted here, that the conduct of one party has unnecessarily disadvantaged another. [9] The discretion to award costs in the Supreme Court is different. They are in the discretion of the Court but follow the event, unless the Court orders otherwise: UCPR r 681. [10] The order proposed by the applicants – i.e. to simply transfer the question of costs to the Supreme Court, with the proceeding – carries the risk, with respect, of embarrassment for the Court which would be asked, in effect, to exercise the Tribunal’s jurisdiction. [11] At the same time, an order for costs of the kind sought by the respondent would be precipitate: the overarching principle governing the circumstance in which this Tribunal may make an order requiring a party to pay costs is whether or not it considers that the ‘… interests of justice require it to make the order’: s 102(1). The eventual outcome of the proceedings may, on any view, be a material factor in deciding where the interests of justice ultimately lay, in the matter. [12] For these reasons, the proceeding alone should be transferred; and, any dispute about costs in QCAT to date should be reserved to the Tribunal for consideration at a later date. [13] The parties have liberty to apply in the current Tribunal matter at any time in the future, at seven days notice in writing to each other and to QCAT. -- 3 of 3 --