Blackwater Venture Pty Ltd v Mackay and Whitsunday Building Certification Pty Ltd

[2014] QPEC 28

[2014] QPEC 28

PLANNING AND ENVIRONMENT COURT

JUDGE R S JONES

P & E No. 580 of 2014

BLACKWATER VENTURE PROPRIETARY
LIMITED  Appellant

and

MACKAY & WHITSUNDAY BUILDING
CERTIFICATION PROPRIETARY LIMITED  Respondent

BRISBANE

22 MAY 2014

EX TEMPORE ORDER

HIS HONOUR:   I will now deal with the question of costs.  I have already made orders dealing with the substantive matters raised in the appeal and as I noted then those orders were not opposed by the respondent.  I’d not go so far as to say that they were orders made by consent but there was certainly no opposition to those orders being made.  That then left for resolution the question of costs.  The appellant seeks its costs of the appeal including those costs associated with the adjournment on 16 May 2014.  The respondent in the proceedings, Mackay and Whitsunday Building Certification Proprietary Limited, is a building certifier.  Mr Reck is the managing director of the respondent company. 

Mr Reck was put in an unfortunate situation in that on 10 January 2014 the Queensland Building and Construction Commission issued what is described as an information notice pursuant to section 204 of the Building Act 1975 which relevantly referred to an audit that had been carried out on the respondent company. Following a review of that audit, the Commission decided that the respondent had engaged in unsatisfactory conduct and as a consequence then required the respondent to carry out a number of steps including the issuing of an enforcement notice.

Acting no doubt under the implied threat contained in that notice given by the Commission, the respondent issued what has been referred to as the first enforcement notice and, as I understand things, once a number of defects were pointed out in respect of the first enforcement notice, a second enforcement notice, which materially covered the same issues, was issued. 

The matter came before me on 16 May 2014.  On that date I adjourned proceedings but made a number of orders including setting aside the first enforcement notice and also dealing with questions of misnomers as to the correct parties.  Those matters were able to be dealt with in an efficient way and with, really, the respondent conceding that the first enforcement notice ought to be set aside.  As Mr O’Brien pointed it out was, in effect, hopelessly defective.

Prior to that date, on 1 May 2014, the respondent wrote via its lawyers, Barron & Allen Solicitors to the Commissioner pointing out a number of matters and, in particular, drawing to the Commissioner’s attention the fact that there was a proposed settlement in the wind which would, if finalised, as I read the letter, would allow the respondent an opportunity to:

Walk away from both the proceedings as well as any wider dispute. 

Quite unhelpfully, on 20 May 2014, the Commissioner wrote back to the respondent’s solicitors relevantly stating:

The Commission has given due consideration to the matter and is of the view that the building work carried out at 30 Byron Street, Mackay is non-compliant with the Building Code of Australia for the reasons provided in the Commission’s information notice dated 20 December 2013. If the said enforcement notice for 30 Byron Street, Mackay is set aside by agreement

and/or consent of the court, the Commission would require in writing from Mr Reck demonstration of compliance with the information notice dated 20 December 2013, in particular items 3(a) and (b).  Also, please provide written evidence of notification to the local authority and any response by them.

The 3(a) and 3(b) referred to were set out in the notice of 10 January 2014 which required the respondent to take certain steps including the issuing of an enforcement notice. As I said I think at the outset, I have sympathy for the position of the respondent. He found himself between a rock and a hard place. It appears immediately clear to me that the Commissioner was wrong in his determination of the alleged breaches of the relevant code. Section 37(1)(d) of the Building Act 1975 clearly applied.

Nonetheless, as I said, the attitude of the Commissioner placed the respondent in an extremely difficult place.  However, that said, as Mr O’Brien pointed out, the making of cost orders is not to punish the unsuccessful party; it is, in fact, to indemnify the successful party in respect of its costs or at least part of its costs in having to successfully prosecute a proceeding.  In this case, indemnity costs are not being sought, quite properly, in my view, as it could not be said that the respondent has acted in a vexatious or frivolous or other way which might enliven the power of the court to order indemnity cost.  However, it is sufficiently clearly to me that the appellant has suffered significant legal costs.  However, and I think, to an extent, Mr O’Brien conceded that, at least to an extent, the respondent was entitled to some sympathy up until 18 May 2014, but, thereafter, any such sympathy dissipated, or any such reason for sympathy no longer existed. 

In respect of the costs of the adjournment, as I have said earlier, the matters raised there were able to be dealt with expeditiously, including dealing with the first enforcement order and the misnomer of the parties. The misnomer point was a matter which required rectification on the part of the appellant. On balance, I have formed the view that it would be appropriate to order each party to bear their own costs of the adjournment. However, as I have said, it is clear that the appellant was required to prosecute its appeal. The respondent relied particularly on provisions of section 457 of the Sustainable Planning Act 2009 as amended and, in particular, argued that it could not be said that the respondent had acted in any inappropriate or acted for an improper purposes. I agree. However, that is only one of the matters addressed under section 457. Clearly, the relative success of the parties is one of the matters to be brought into account under subsection 2 and it is also clear that the matters set out in subsection 2 are only indicative of the matters that the court can take into account. Here, the appellant has been entirely successful. There are no public interest issues involved, in my view, which would deter or prevent the making of any cost orders.

Reliance was also placed on subsection 14.  It is true, as Mr O’Brien pointed out, that the respondent here was not permitted to withdraw from the appeal.  That had to be so if for no other reason than allow this cost argument to be deal with.  That said, as I indicated at the outset, the respondent’s approach allowed this matter to be dealt with in the space of an hour or so.  On balance, I have reached the conclusion that the appellant is entitled to an order for a costs order; such costs to be the costs incurred by the appellant in the prosecution of the appeal from 16 May 2014 through to today’s date, 22 May 2014.  However, I further order that the costs of counsel and instructing solicitors be limited to one half of today.  If the costs are unable to be agreed, then to be assessed.

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