Kavanagh & Ors v SAAROQ Pty Ltd t/as Stroud Homes Wide Bay No 2 [2026] QCAT 388

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Kavanagh & Ors v SAAROQ Pty Ltd t/as Stroud Homes Wide Bay No 2 [2026] QCAT 388 PARTIES: AMELIA GRACE KAVANAGH (applicant) PATRICK GEORGE KAVANAGH (applicant) JASON RICHARD HILLCOAT (applicant) v SAAROQ PTY LTD T/AS STROUD HOMES WIDE BAY (respondent) APPLICATION NO/S: BDL207-25 MATTER TYPE: Building matters DELIVERED ON: 25 August 2026 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Lumb ORDERS: 1. The Respondent must pay the Applicants’ costs of the proceeding from 17 October 2025 to the date of this decision on the standard basis, fixed in the sum of $29,826.68. 2. If either party seeks any further order in the proceeding, that party must file in the Tribunal one (1) copy of, and give to the other party one (1) copy of, submissions setting out the order sought and addressing the basis upon which such an order is sought, by 4:00pm on 9 September 2026. 3. If submissions seeking a further order are filed: (a) the other party must file in the Tribunal one (1) copy of, and give to the applying party one (1) copy of, submissions in response by 4:00pm on 23 September 2026; (b) the issue of whether a further order should be made will be determined on the papers. -- 1 of 6 -- 2 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). REASONS FOR DECISION Introduction [1] The Application for domestic building disputes (‘the Application’) was filed in this proceeding on 19 June 2025. [2] On 16 October 2025, the Tribunal directed, by consent, that the Tribunal would determine the preliminary issue in relation to whether the Applicants were entitled to have a third party access the site with them to inspect the works. [3] The Application sought a variety of declaratory relief and orders, with some of the relief involving matters other than access to the site (and costs). [4] As I understood the position at the hearing of the preliminary question, the Applicants only pressed for the relief in paragraphs 1, 2 and 7 of Part C of the Application, and the Builder accepted that position (maintaining that the Tribunal had no jurisdiction to grant the additional relief and/or that, through the passage of time, some of the relief sought was no longer relevant). [5] On 10 June 2026, the Tribunal declared that the Applicants and any person authorised by the Applicants are entitled, under clause 10.3 of the Contract between the parties, to have access to the works under the Contract at reasonable times and after giving reasonable prior notice in writing. [6] Each of the parties seeks a costs order in their favour. [7] The Applicants seek one of four costs orders in cascading order. [8] The Builder also seeks various costs orders on alternative bases. In the further alternative, the Builder seeks an order that there be no order as to costs. [9] Each of the parties relies upon s 105 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), submitting that the other party’s failure to accept an offer to settle justifies making of an order for costs against that party. [10] The Applicants additionally submitted that they have been successful in the proceeding and, if a costs order is not made in their favour, that success would be significantly eroded, particularly because the proceeding was not for the purpose of seeking payment of a monetary sum. Costs in building disputes [11] In building disputes before the Tribunal, on the question of costs, s 77(3)(h) of the QBCC Act gives the Tribunal ‘a broad general discretion to award costs as may be appropriate in the particular circumstances’.1 1 Boys v Imperial Homes (Qld) Pty Ltd (No 2) [2024] QCATA 79, [5]; see also Allen v Contrast Constructions Pty Ltd (No 3) [2021] QCATA 143, [28]-[33]. -- 2 of 6 -- 3 Consideration [12] In respect of the offers made, the question is whether, considering the terms of the offer as a whole, the decision of the Tribunal on the preliminary question (‘the Decision’) is not more favourable than the offer in question (see rule 86 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘the Rules’)). [13] The Builder’s first offer was made on 26 September 2025, and proposed that the Builder would allow the Applicants to have Saurus Constructions (‘the building inspector’) attend the property and undertake an inspection at a mutually convenient time (and attended by the Builder’s representative). However, this was subject to a precondition that (following the issue of the Form 21 and the release of funds by the bank), the ‘practical completion payment’ be placed into the trust account of either the Builder’s solicitors’ trust account or the Applicants’ solicitors’ trust account to be held as security. The offer also provided that, after the inspection and provision of the building inspector’s report, the parties could complete an additional defects document and ‘any defects our client agrees to address’ will be addressed within 21 days. I consider this offer was without substance insofar as the Builder would address only those defects that it agreed to, without any qualification. On its face, the Builder could refuse to address any such defects. In the above circumstances, I am not satisfied that the Decision is not more favourable to the Applicants than the offer (or, to put it in terms that avoids a double negative, I am not satisfied that the offer was (at least) as favourable to the Applicants as the Decision). [14] On 7 October 2025, the Applicants made a ‘counteroffer’. The offer proposed four terms. The first term proposed was that the Builder would allow the Applicants’ inspector and independent engineer to attend the property to complete an inspection at a time mutually convenient to the Builder, and attended by one of the Builder’s representatives. In my view, that proposal was consistent with the effect of the Decision as subsequently made. However, the second term proposed was that the Builder would attend to rectifying all defects identified in each of the building inspector’s report and the engineer’s report, within 21 days of receipt of the reports by the Builder’s solicitors, and that the Builder would, within three business days, provide to the Applicants a plan specifying when the rectification works would be performed by the Builder. In my view, the Applicants sought to impose an additional term to that of gaining access in circumstances where the Applicants have not established that they were otherwise entitled to such relief. Given the addition of this proposed term, I am not satisfied that Decision is not more favourable to the Builder than the offer. [15] On 10 October 2025, the Builder made an ‘amended offer’ to the Applicants in the following terms: 1. Saurus Constructions will be granted access at a mutually convenient time to undertake an inspection of the Property, in the attendance of our client's representative, for the purposes of making a list of any minor defects and/or omissions (the "List"). 2. Upon receipt of the List, our client will indicate which (if any) minor defects and/or omissions they agree with and which they do not. Any items on the agreed portion of the List will be rectified within 21 days. Our client will not be providing a rectification plan of any sort. It is not necessary. -- 3 of 6 -- 4 3. Within the 21 days, your clients are to decommission the laundry without delay. 4. Upon completion of any rectification works and the decommissioning of the laundry - therefore prompting the issuing of the Form 21 - within 21 days, your client will immediately authorise the release of the practical completion funds to our client. 5. Once cleared funds are received by our client, keys and handover will be provided to your client and your client will take immediate steps to withdraw the QCAT proceedings. 6. The parties agree not to engage in any disparaging conduct against the other. [16] Again, the proposal for rectification included only those defects or omissions agreed to by the Builder and, additionally, confined the process to ‘minor’ defects or omissions. In relation to the fourth term, the Applicants submit in that insofar as it provided for the release of the practical completion stage payment to the Builder, this ‘would have clearly given the [Builder] the benefit of cl27.5’s release from liability…’ (in circumstances where no rectification may have been performed by the Builder). It is unnecessary to reach a concluded view as to whether acceptance of that offer would have given rise to the release from liability. However, I consider that acceptance of the offer would have had potential contractual ramifications for the Applicants’ rights under the contract. Additionally, the Builder included a proposed term that the parties agree not to engage in any disparaging conduct against the other. In my view, this was an extraneous term in respect of which neither party had a contractual obligation to agree. In the above circumstances, I am not satisfied that Decision is not more favourable to the Applicants than the offer. [17] The Builder made a third offer on 24 February 2026. In my view, it was in substantively similar terms to the second offer. I reach the same conclusion as I did in relation to the second offer. [18] In summary, I am not satisfied that either party has demonstrated that rule 86 of the Rules has been engaged. [19] The further issue is whether the Applicants’ success in relation to the preliminary question justifies an order for costs in their favour. I consider that, whilst the Builder’s argument in relation to the proper construction of clause 10.3 was reasonably arguable, it was not a persuasive argument. The Applicants’ construction was consistent with the ordinary grammatical meaning of the provision. As a result of the refusal of access to the building inspector (and the engineer), the Applicants sought to establish, by this proceeding, a right of access. They were successful in this regard. [20] I accept the Applicants’ submission that if no order for costs were made, their success would be significantly eroded by bearing the whole of their legal costs in securing the declaratory relief sought. [21] In the circumstances of this case, I consider it appropriate that the Builder be ordered to pay the Applicants’ costs of the proceeding from 17 October 2025 to the date of this decision and that it be on the standard basis. At the period of the costs, the issue for determination was crystallised by the consent order on 16 October 2025, and from 17 October 2025 onwards the Builder was on notice of that issue and continued to oppose the declaratory relief sought by the Applicants (ultimately -- 4 of 6 -- 5 unsuccessfully). I do not consider that the Applicants should be awarded costs prior to 16 October 2025 for the reasons addressed below in relation to the filing fee. [22] By virtue of s 107 of the QCAT Act, where the Tribunal makes a costs order under an enabling Act (in this case the QBCC Act), the Tribunal ‘must fix a costs if possible’. [23] The affidavit of Mr Gregg, Solicitor in the employ of the Solicitors for the Applicants sets out details (including evidence) of the costs incurred in the proceeding. Mr Gregg has also deposed to the percentage of costs he would ordinarily expect a party to recover where an order is made in relation to costs. I accept the unchallenged evidence of Mr Gregg that, in relation to standard costs, ordinarily a party would expect to recover at least 60% of the Solicitor’s actual costs incurred in the proceeding and 90% of Counsel’s fees (which constitute a disbursement). Adopting those percentages, and having regard to the evidence adduced by Mr Gregg, I allow 60% of the Applicants’ Solicitors’ fees in the amount of $18,540.68, and 90% of Counsel’s fees of $11,286.00. [24] I disallow the filing fee of $379.50 on the basis that the Application sought a variety of other declaratory relief or orders (Items 3, 4, 5, 6 and 8) which were not ultimately pursued and, on their face, raised a serious question as to whether the Tribunal had power to make such orders and, if so, whether they ought to have been made in any event. [25] Allowing the Solicitors’ and Counsel’s costs referred to above, I fix costs in the sum of $29,826.68.2 Orders [26] For the reasons set out above, I order that: The Respondent must pay the Applicants’ costs of the proceeding from 17 October 2025 to the date of this decision on the standard basis, fixed in the sum of $29,826.68. [27] In circumstances where, at the hearing, the Applicants confined the relief sought to paragraphs 1, 2 and 7 of the Application, I consider that the Decision addressed the relief sought in paragraphs 1 and 2, and this decision addresses the relief sought in paragraph 7. In the circumstances, it does not appear to me that any further order needs be made in the proceeding. However, in the event that either party does seek a further order in the proceeding, I make the following orders to permit submissions in that regard: (a) If either party seeks any further order in the proceeding, that party must file in the Tribunal one (1) copy of, and give to the other party one (1) copy of, submissions setting out the order sought and addressing the basis upon which such an order is sought, by 4:00pm on 9 September 2026. (b) If submissions seeking a further order are filed: 2 There is plainly an arithmetical error contained at paragraph 37 of Mr Gregg's affidavit which calculates those two amounts together with the filing fee of $379.50 to be $35,450.69. -- 5 of 6 -- 6 (i) the other party must file in the Tribunal one (1) copy of, and give to the applying party one (1) copy of, submissions in response by 4:00pm on 23 September 2026; (ii) the issue of whether a further order should be made will be determined on the papers. [28] If no further order is sought, the proceeding will be treated as finalised. -- 6 of 6 --