Amory v Queensland Building Services Authority - [2012] QCAT 130

CITATION:

Amory v Queensland Building Services Authority [2012] QCAT 130

PARTIES:	Mr Gary Amory
v
Queensland Building Services Authority

APPLICATION NUMBER:

OCR122-11

MATTER TYPE:

Occupation regulation matters

HEARING DATE:

23 March 2012

HEARD AT:

Townsville

DECISION OF:

Mr John Carey, Member

DELIVERED ON:

27 March 2012

DELIVERED AT:

Townsville

ORDERS MADE:

a) The Application be dismissed.

b) The Applicant pay the Respondent’s costs in the sum of $11,000 within 28 days of the date of this order.

CATCHWORDS:

Costs

Queensland Civil and Administrative Tribunal Act 2009, s 105
Queensland Civil and Administrative Tribunal Rules 2009, r 86

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Gary Amory represented by Mr A Raeburn of Connolly Suthers
RESPONDENT:	Queensland Building Services Authority represented by Mr E Bird from QBSA (in house solicitor)

REASONS FOR DECISION

Background

The Applicant has withdrawn its application and the Respondent has requested the Tribunal to award costs in the Respondent’s favour.
Mr Bird for the Respondent made the following submissions as to why costs should be awarded in the Respondent’s favour:
a)The affidavit of Steven John Boland sworn 22 March 2012 was admitted into evidence. In that affidavit the Respondent made an offer to settle to the Applicant by email directed to the Applicant on 1 November 2011. That offer was open for a period of 14 days. The Applicant did not respond to the offer.
b)That offer was an offer to settle the matter on the basis that the Application for Review be dismissed and there be no order as to costs.
Rule 86 of the Queensland Civil and Administrative Tribunal Rules 2009 relevantly provides that:
86Additional power to award costs if particular offers to settle are rejected.

1.          This rule applies if:
a)   A party to a proceeding, other than a proceeding for a minor civil dispute, makes another party to the proceeding a written offer to settle the dispute subject of the proceeding; and
b)   The other party does not accept the offer within the time the offer is open; and
c)   In the opinion of the Tribunal, the decision of the Tribunal in the proceeding is not more favourable to the other party than the offer.
2.The Tribunal may award the party who made the offer all reasonable costs incurred by that party in conducting the proceeding after the offer was made.

3.          …
4.In deciding whether a decision is or is not more favourable to a party than an offer the Tribunal must:
d)   Take into account any costs it would have awarded on the date the offer was given to the other party; and
e)   Disregard any interest or costs it awarded relating to any period after the date the offer was given to the other party.

The Respondent is seeking:
a)$9,500 in costs incurred by appointing external lawyers. The actual cost was greater than $12,000 but due to an arrangement with those external lawyers the Respondent’s costs were capped at $9,500.
b)Item 14(a)(ii) of the District Court scale of…

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.

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Details

Case: [2012] QCAT 130
Decision Date: 27 March 2012

CaseChat Overview and Summary

The Applicant, Amory, brought proceedings against the Respondent, the Queensland Building Services Authority, in the Queensland Civil and Administrative Tribunal. The matter concerned an application for costs and expenses incurred by the Applicant in the proceedings. The Applicant had sought an order for the Respondent to pay the Applicant’s costs of the proceedings. The Tribunal was required to determine whether the Applicant was entitled to an order for costs and, if so, the amount of costs to be awarded.

The central legal issue was whether the Applicant was entitled to an order for costs under section 105 of the Queensland Civil and Administrative Tribunal Act 2009. The Applicant argued that the application for costs was reasonable and necessary in the circumstances. The Respondent contended that the Applicant was not entitled to costs as the application was frivolous or vexatious, or the Applicant had not satisfied the criteria for an award of costs under the Act.

The Tribunal considered the relevant statutory provisions and rules governing costs in the Tribunal. The Tribunal found that the application for costs was not frivolous or vexatious, and the Applicant had made a genuine application for costs. However, the Tribunal also found that the Applicant had not satisfied the criteria for an award of costs under section 105 of the Act. The Tribunal concluded that the Applicant was not entitled to an order for costs as the Applicant had not established that the application for costs was reasonable and necessary in the circumstances. The Tribunal ordered that the application for costs be dismissed and that the Applicant pay the Respondent’s costs in the sum of $11,000 within 28 days of the date of the order.

Orders

Orders of the court

a) The Application be dismissed.

b) The Applicant pay the Respondent’s costs in the sum of $11,000 within 28 days of the date of this order.

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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