2K Constructions Pty Ltd 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:

1. Queensland Building and Construction Commission pay 2K Constructions Pty Ltd its costs fixed at $35,000.00 by 4:00 pm 31 March 2023.

2. 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

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Thompson v Cannon [2020] QCAT 109
Turner v Macrossan & Amiet Pty Ltd (No 2) (2016] QCAT 255
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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

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.
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).
2K Constructions seeks an award of costs of $55,589.36 from the Commission
The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides:
100Each 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.
102Costs 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2K Constructions Pty Ltd v QBCC No 2

Details

AGLC: 2K Constructions Pty Ltd v QBCC No 2 [2023] QCAT 83
Case: [2023] QCAT 83
Decision Date

CaseChat Overview and Summary

2K Constructions Pty Ltd, an applicant in a building dispute, successfully sought to set aside a decision of the Queensland Building and Construction Commission (the Commission), whereas Shandon International Pty Ltd, another party in the proceedings, did not succeed in its application to set aside a decision of the Commission. The Commission was ordered to pay 2K Constructions' costs, while Shandon's application for reopening, correction, renewal or amendment of the earlier decision was dismissed.

The legal issues for the Queensland Civil and Administrative Tribunal (QCAT) to determine were whether the Commission should pay 2K Constructions' costs and whether Shandon's application for reopening, correction, renewal or amendment of the earlier decision should be granted. The QCAT considered the relevant legislation, case law and submissions from both parties.

In its decision, the QCAT noted the divergence of opinion on how the discretion to award costs should be exercised. While some cases suggest that an order for costs should not be made unless there are compelling reasons, other cases treat the power to award costs as a discretionary source of power in the interests of justice. The QCAT found that on either basis, the Commission should pay 2K Constructions' costs. The Tribunal considered the financial consequences faced by 2K Constructions, the complexity of the matter, and the respective financial positions of the parties. The QCAT also found that the Commission had unnecessarily disadvantaged 2K Constructions by proceeding with the Direction to Rectify on a misunderstanding of the evidence. The Tribunal fixed 2K Constructions' costs at $35,000.00. Shandon's application for reopening, correction, renewal or amendment of the earlier decision was dismissed as it lacked detail, was not made at the hearing, and all the material had been available to the public for several years.

The final orders of the Tribunal were that the Commission should pay 2K Constructions' costs in the amount of $35,000.00 by 4:00 pm on 31 March 2023, and Shandon's application for reopening, correction, renewal or amendment of the earlier decision was dismissed.

Orders