Allen v Contrast Constructions Pty Ltd (No 3)

Case [2021] QCATA 143

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Allen & Anor v Contrast Constructions Pty Ltd (No 3)  [2021] QCATA 143
PARTIES: REECE JUSTIN ALLEN
CHANTELL RENEE MARIA TAYLOR

(applicants)

v
CONTRAST CONSTRUCTIONS PTY LTD

(respondent)

APPLICATION NO/S:

APL181-20

MATTER TYPE:

Building matters

DELIVERED ON:

30 November 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President
Member Traves

ORDERS:

1.          The applicants pay the respondent’s costs of and incidental to the application for a stay and the application for leave to appeal and the appeal, such costs to include the respondent’s costs reserved on the oral hearing.

2.          The said costs are to be agreed within 14 days, or if not agreed within 14 days, are to be assessed on the standard basis on the District Court scale, by a costs assessor appointed by the Registrar of the Tribunal.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – where unsuccessful appeal by applicants of interlocutory decision refusing to stay the proceedings – where applicants applied for costs – whether costs provisions under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) or s 77 of the Queensland Building and Construction Commission Act 1991 (Qld) apply – where applicant successful in establishing error of law in decision below – where applicant ultimately unsuccessful on discretionary grounds – whether order for costs should be made

Queensland Building and Construction Commission Act 1991 (Qld), s 77

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 87

Grace v Grace (No 9) [2014] NSWSC 1239

Lyons v Dreamstarter Pty Ltd [2012] QCATA 71
Nine Network Australia Pty Ltd v Wagner [2021] QCA 84
Olindaridge Pty Ltd & Wagner v Tracey [2015] QCATA 175
Pivovarova v Michelsen [2016] QCATA 45
Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39
Tey v Optima Financial Group Pty Ltd [2012] WASCA 193

APPEARANCES & REPRESENTATION:

Applicant:

Project Legal

Respondent:

Construct Law Group

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

  1. On 1 July 2020 the applicants (the owners) applied for leave to appeal and to appeal an interlocutory decision of a Senior Member dated 21 May 2020. By that decision the Senior Member refused the owners’ application for the proceeding filed by the respondents (BDL219-19) to be dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) or otherwise stayed pending compliance with dispute resolution clauses in the contract between the parties (the appeal for the purposes of this decision).

  2. On 16 September 2020 the Appeal Tribunal refused the owners’ application to stay the decision of  the Senior Member of 21 May 2020. No order as to costs was made.

  3. On 28 October 2020 the parties were each given leave to be legally represented.

  4. On 4 November…

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Details
AGLC
Allen v Contrast Constructions Pty Ltd (No 3) [2021] QCATA 143
Case
[2021] QCATA 143
Decision Date

CaseChat Overview and Summary

In Allen v Contrast Constructions Pty Ltd (No 3), the Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining the applicability of various costs provisions in relation to an unsuccessful appeal by the applicants, who had sought to stay proceedings against them. The primary focus of the case was whether the costs provisions under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) or section 77 of the Queensland Building and Construction Commission Act 1991 (Qld) were applicable in this context. The applicants had succeeded in establishing that there was an error of law in the initial interlocutory decision that refused to stay the proceedings but ultimately remained unsuccessful on discretionary grounds in their appeal. This led to the consideration of whether an order for costs should be made in favour of the respondent.

The tribunal had to determine the correct legal framework to apply for the costs in the appeal. The applicants argued that the costs provisions under the Queensland Civil and Administrative Tribunal Act 2009 should apply, while the respondent contended that section 77 of the Queensland Building and Construction Commission Act 1991 was more appropriate. The tribunal examined the legislative intent behind both sets of provisions and the nature of the proceedings. It found that the costs in such interlocutory appeals should be governed by the provisions of the Queensland Civil and Administrative Tribunal Act 2009. However, given the applicants' partial success in establishing an error of law but ultimate failure on appeal, the tribunal held that an order for costs should be made in favour of the respondent.

The tribunal ordered that the applicants pay the respondent's costs of and incidental to the application for a stay and the application for leave to appeal and the appeal itself, including the respondent's costs reserved on the oral hearing. The tribunal specified that these costs were to be agreed upon within 14 days, and if not agreed, they would be assessed on the standard basis on the District Court scale by a costs assessor appointed by the Registrar of the Tribunal. This decision provides clarity on the application of costs provisions in interlocutory appeals within the QCAT and highlights the tribunal's approach to balancing the costs implications of partial success in such proceedings.

Orders

Orders of the court

1. The applicants pay the respondent’s costs of and incidental to the application for a stay and the application for leave to appeal and the appeal, such costs to include the respondent’s costs reserved on the oral hearing.

2. The said costs are to be agreed within 14 days, or if not agreed within 14 days, are to be assessed on the standard basis on the District Court scale, by a costs assessor appointed by the Registrar of the Tribunal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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