Elliott v Queensland Building Services Authority [2011] QCAT 72

CITATION: Elliott v Queensland Building Services Authority [2011] QCAT 72 PARTIES: Mr Robert Arthur Elliott v Queensland Building Services Authority APPLICATION NUMBERS: QR172-08 QR222-08 QR146-09 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Mr Paul Favell, Member DELIVERED ON: 7 March 2011 DELIVERED AT: Brisbane ORDERS MADE: The Tribunal orders that: 1. The Respondent will pay the Applicant’s costs of and incidental to the proceedings on a standard basis in accordance with the District Court scale of costs. 2. If, within 14 days, the amount of the Applicant’s costs payable under (a) is not agreed between Applicant and the Respondent, then the costs are to be assessed by Hickey and Garrett Legal Cost Assessors, Level 21, 141 Queen Street Brisbane. 3. The Respondent is to pay the Applicant’s costs (as agreed or assessed) within 28 days of such agreement or assessment. CATCHWORDS: Costs – Building matter – Review of Queensland Building Services Authority directions to rectify – Whether in interests of justice to award costs in favour of successful party Queensland Civil and Administrative Tribunal Act 2009, ss 102, 105, 271 Commercial and Consumer Tribunal Act 2003, ss 70, 71, 74, 142 Queensland Civil and Administrative Tribunal Rules 2009, r 86 Ralacom Pty Ltd v Body Corporate for Paradise Island CTS 17653 (No 2) [2010] QCAT 412 -- 1 of 8 -- QR172-08, QR222-08, QR146-09 / Page 2 of 8 Mulford v QBSA [2009] QCCTB 64 Tamawood v Paans [2005] QCA 111 Thomson v QBSA [2008] QCCTB 206 APPEARANCES and REPRESENTATION (if any): Decision on the papers. REASONS FOR DECISION Introduction 1. On 31 August 2010 the Tribunal made orders concerning the directions made by the Respondent in respect of building work at 3 Carabeen Court, 2 and 3 Macaranga Court, Melaleuca Gardens Estate at Laidley. 2. Those orders were that the directions made be set aside. 3. The Applicant now makes an application for an order for costs on the basis that the Applicant was successful in his three review applications. 4. The Applicant in his written submissions contends that the Respondent should be ordered to pay his costs of the proceeding on a standard basis and on the District court scale. 5. The three review applications subject of the orders by this tribunal were originally filed in the Commercial and Consumer Tribunal (‘CCT’). Accordingly, this application is subject to Chapter 7, Part 4 ‘Conducting proceedings from former tribunal or continuing entity’ of the Queensland Civil and Administrative Tribunal Act 2009 (‘the QCAT Act’). 6. Section 268 of the QCAT Act relevantly provides: “(1) This section applies if, before the commencement, a person has, under an enabling Act, or another Act as in force before the commencement (the former Act), started a proceeding before the continuing entity for a QCAT matter. (2) The continuing entity must hear, or continue to hear, and decide the matter under the former Act, and the former Act and other relevant laws apply as if the QCAT Amendment Act had not been enacted.” 7. Section 271 of the QCAT Act relevantly provides: “(1) QCAT must deal with the matter the subject of the existing proceeding under this Act or an enabling Act. (2) However, in the relation to the matter – (a) … (b) QCAT can, and can only, make a decision the former entity could have made in relation to the matter under the former Act.” 8. The Applicant submits that the Tribunal can make a decision which was within the power of the CCT. The power of the Tribunal to order costs is provided under Section 71 and 142 of the Commercial and Consumer Tribunal Act 2003 (‘CCT -- 2 of 8 -- QR172-08, QR222-08, QR146-09 / Page 3 of 8 Act’). Sections 102 and 105 of the QCAT Act and Rule 86 of the Queensland Civil Administrative Tribunal Rules 2009 provide for the making of costs orders. 9. Sections 70 and 71 of the CCT Act provided the CCT with discretion to make an order for costs which it considered appropriate. 10. Section 70 of the CCT Act relevantly provided as follows: “70 Purposes of div 7 The main purpose of this division is to have parties pay their own costs unless the interests of justice require otherwise.” 11. Section 71 of the CCT Act relevantly provided as follows: “71 Costs (1) In a proceeding, the tribunal may award the costs it considers appropriate on – (a) the application of a party to the proceeding; or (b) its own initiative. (2) … (3) … (4) In deciding whether to award costs, and the amount of the costs, the tribunal may have regard to the following – (a) the outcome of the proceeding; (b) the conduct of the parties to the proceeding before and during the proceeding; (c) the nature and complexity of the proceeding; (d) the relative strengths of the claims made by each of the parties to the proceeding; (e) any contravention of an Act by a party to the proceedings; (f) for a proceeding where a State agency is a party, whether the other party to the proceeding was afforded natural justice by the State agency; (g) anything else the tribunal considers relevant. Examples of paragraph (g) – The tribunal may consider whether a party to a proceeding is acting in a way that unreasonable disadvantages another party to the proceeding. The tribunal may consider whether the proceeding, or a part of the proceeding, has been frivolous or vexatious. (5) A party to a proceeding is not entitled to costs merely because - -- 3 of 8 -- QR172-08, QR222-08, QR146-09 / Page 4 of 8 (a) the party was the beneficiary of an order of the tribunal; or (b) the party was legally represented at the proceeding. (6) … (7) The tribunal may direct that costs be assessed – (a) in the way decided by a presiding case manager; or (b) by a person appointed by the tribunal.” 12. The provisions of the CCT Act with respect to the costs provisions were considered by the Court of Appeal in Tamawood Ltd & Anor v Paans. 1 In that case, Keane JA held that: 2 “… the language of s 70 and s 71(5)(a) is sufficiently clear to negate the proposition that costs should, prima facie, follow the event unless the Tribunal considers that another order is more appropriate. In this regard, it is clear that the power of a court or tribunal to award costs to a party is now the creature of statute. The nature and extent of that power can only be discerned by close consideration of the terms of the statute which creates the power and prescribes the occasions for, and conditions of, its exercise. In the performance of this task, observations of the courts in relation to the operation of other statutory regimes relating to costs may afford general assistance but they cannot be allowed to distract attention from the terms of the particular statute in question.” 13. The Applicant submits that the interests of justice require that the Respondent be ordered to pay the Applicant’s costs arising from the proceedings. 14. He cites Mulford v QBSA [2009] QCCTB 64 wherein it is said the Tribunal accepted that: ‘there is no criteria in Section 71(4) of the CCT Act (within Part 5 div 7), other than, perhaps, that relating to natural justice that would suggest that the Respondent in so far as costs are concerned, is in any different position to other parties and should be dealt with differently, merely because the other party may be acting in good faith. As will be noted, the question is always, given opposing positions, what is in the interests of justice.’ The Respondent agrees that that is an appropriate statement of law. 15. To support his submission that the interests of justice require that the Respondent be ordered to pay the Applicant’s costs, the Applicant relies on the following: (1) On 20 March 2009, the Respondent consented to an order that the Applicant be legally represented and it can be inferred that the Tribunal and the Respondent considered that legal representation was appropriate. (2) The fact that the Applicant was legally represented can be a sufficient basis for an award of costs in the absence of countervailing considerations (Tamawood v Paans [2005] QCA 111 per Keane JA at [30]). 1 [2005] QCA 111. 2 At [23]. See also [6]. -- 4 of 8 -- QR172-08, QR222-08, QR146-09 / Page 5 of 8 (3) In addition to paying legal fees the Applicant was put to very considerable expense, having to engage an engineering expert. The Applicant’s engineering expert’s evidence was often relied on by the Tribunal. (4) There are no countervailing considerations in this case. 16. The Applicant addressed the section 71(4) factors and said: (1) The Applicant’s review applications were totally successful in that the three orders were unconditionally satisfied. (2) There were no adverse findings in relation to the evidence or actions of the Applicant. (3) The Tribunal found that even if the work undertaken by the Applicant was defective it would have been unfair to issue the Applicant with directions to rectify in the circumstances. (4) The outcome of each proceeding was entirely in favour of the Applicant. (5) The Applicant assisted the Tribunal in a timely matter. (6) The Applicant’s evidence was unchallenged and the evidence of the Applicant’s expert was accepted in full. (7) Prior to the proceedings the Applicant made a number of representations in an effort to convince the Respondent that it would not be appropriate to issue a direction to rectify to the Applicant. (8) The Applicant always maintained that he had followed the requirements of the engineer and that it was the engineer’s design that was defective and not his work and the Tribunal ultimately found that to be the case. (9) The Respondent proceeded on the basis that the complaints were made in excess of one year after the problems were first noticed. (10) After being provided with the Applicant’s expert’s report the Respondent refused to attend a meeting for the purpose of trying to settle the matter. (11) Legal representation was important and appropriate. (12) The proceedings were complex and legal representation was appropriate. (13) The Applicant had a strong case and ultimately succeeded. 17. The Authority has in the past conceded that whilst a party may not be entitled to costs merely on the basis of it having been legally represented, the fact that the Applicant was legally represented can be a sufficient basis for an award of costs in the absence of countervailing considerations. The authority for that proposition appears in Tamawood Ltd & Anor v Paans [2005] QCA 111 at [30] when Keane JA (as he then was) said: “First, the Tribunal found that each party was justified in engaging the services of legal representatives to assist them in the conduct and defence of what the Tribunal recognized to be complex proceedings. That finding alone could be, in my view, a sufficient basis to conclude that the interests -- 5 of 8 -- QR172-08, QR222-08, QR146-09 / Page 6 of 8 of justice warranted the exercise of the discretion to award costs in favour of the successful party, at least in the absence of any countervailing consideration. The Tribunal erred in failing to appreciate the implication of this finding for an understanding of where the interests of justice lay in relation to the costs of the proceedings.” 18. That concession was made in Thomson v QBSA [2008] QCCTB 206 at [9]. The Respondent here also makes that concession. 19. It is correct to say, as had been submitted by the Respondent, that in considering whether a costs order should be made, the presumptions are that the parties should pay their own costs unless the interests of justice require otherwise and that a party is not entitled merely because the party was the beneficiary of an order or was legally represented. 20. The Tribunal is entitled to have regard to the matters which are set out in section 74(4) of the CCT Act and anything else the Tribunal considers relevant. 21. In Tamawood Ltd & Anor v Paans [2005] QCA 111 Keane JA made it clear that some good reason must be shown in terms of the interests of justice for the making of the costs order in respect of proceedings before the Tribunal. In that case his Honour said “the nature and extent of that power can only be discerned by close consideration of the terms of the statute which creates the power and prescribes the occasions for, and conditions of, its exercise. In the performance of this task, observations of the courts in relation to operation of other statutory regimes relating to costs may afford general assistance but they cannot be allowed to distract attention from the terms of the particular statute in question.” (2005 QCA 11 at para [23]) 22. In Ralacom Pty Ltd v Body Corporate for Paradise Island CTS 17653 (No 2) [2010] QCAT 412 the President Justice Wilson said ‘The phrase ‘in the interests of justice’ is not defined in the Act but is to be construed according to its ordinary and plain meaning, which obviously confers a broad discretionary power on the decision maker’. That comment is appropriate here. 23. In this matter the Authority in my view was cooperative and addressed its role in the hearing as a model litigant. 24. The Authority contends that it aimed in these circumstances, in the manner of a model litigant, to assist the Tribunal to reach the correct and preferable decision. 25. In my view the Authority did do that. 26. The Authority submits that the Tribunal cannot “simply conclude that the overturning of the authority’s decisions results in a discretionary factor in the Applicant’s favour.” I accept that proposition. 27. Rather it says “an analysis of why this outcome has occurred must be undertaken.” That I am prepared to do. 28. The Authority submits that since the nature of this matter was an administrative review and any agreement that might have been reached in the meeting would have been a review of the decisions which could be reviewed by the owners, no final resolution could be achieved by a meeting. -- 6 of 8 -- QR172-08, QR222-08, QR146-09 / Page 7 of 8 29. In my view, that reasoning is flawed. Just because an agreement could be the subject of a review does not prevent the agreement from being reached in the first place. 30. In this case, the evidence of the expert witness Mr Fox was not seriously challenged nor was the evidence of the Applicant (except for some aspects of admissibility). In my view this was a matter which could have been the subject of resolution prior to hearing. Having said that, that is just a circumstance which can be taken into account in determining whether or not the discretion to award costs should be exercised. 31. The Authority accepts the Applicant’s submissions that all three proceedings warranted representation but says that in applying the principles of Tamawood v Paans [2005] QCA 111 in these proceedings there is a countervailing consideration to the suggestion that complex proceedings engaging legal representatives is a sufficient basis to conclude that the interests of justice warranted the exercise of the discretion to award costs in favour of the successful party. It says that countervailing consideration is that the final form of the evidence taken into consideration by the Tribunal was as a result of the Authority’s legal representation rather than the Applicant’s legal representation. It points to the legal representation by the Authority acting as a model litigant using its best endeavours to help the Tribunal produce a correct and preferable decision has extracted further evidence that was favourable to the Applicant (but was not lead by the Applicant) and excluded evidence that ought not to be in place before the Tribunal. 32. It has given examples in the written submissions which I do not need to set out in full. 33. The Authority submits that the Applicant’s case was finely balanced, and not as strong as submitted by the Applicant. 34. In my view the Applicant’s case was strong. 35. The Respondent also submitted that the discretionary factors were finely balanced and it gives the following circumstances: “(1) Engineering plans in these proceedings were the best they could be; (2) The builder had constructed the buildings in accordance with the engineering plans; (3) The builder’s rights in respect of any breach of contract and/or or tort that may allegedly be committed by the engineer against the builder were not compromised by these proceedings; (4) The rate of failure/defect as a result of such plans and constructions was a very small percentage (between 1 and 3%); (5) The faults represent a larger burden to the owners in the context where they were equally innocent.” In my view those circumstances (apart from the last which is a statement of fact) favour the Applicant. Here, the Applicant did have success in a case of some complexity which warranted legal representation. He had attempted to mediate the matter. -- 7 of 8 -- QR172-08, QR222-08, QR146-09 / Page 8 of 8 36. In my view this is a case where in the circumstances as I have set out above, the interests of justice do require an order other than the parties bear their own costs of the proceedings. In those circumstances an appropriate order is: (1) The Respondent pay the Applicant’s costs of and incidental to the proceedings on a standard basis in accordance with the District Court scale of costs. (2) If, within 14 days, the amount of the Applicant’s costs payable under (a) is not agreed between Applicant and the Respondent, then the costs are to be assessed by Hickey and Garrett Legal Cost Assessors, Level 21 141 Queen Street Brisbane. (3) The Respondent is to pay the Applicant’s costs (as agreed or assessed) within 28 days of such agreement or assessment. 37. Accordingly, I make that order. -- 8 of 8 --