Colling v Queensland Building Services Authority

CITATION:Colling v Queensland Building Services Authority [2010] QCAT 102

PARTIES:   Gary Raymond Colling

v

Queensland Building Services Authority

APPLICATION NUMBER:            QR026-09     

MATTER TYPE:   

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF:   Dr Bridget Cullen Mandikos

DELIVERED ON:   12^th January 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   1.The Respondent’s application for costs in   

the matter is denied.

2.    Parties to bear their own costs.

CATCHWORDS:  Leave to be represented; sections 64, 70-71 Commercial and Consumer Tribunal Act 2003; Transitional provisions, Queensland   Civil and Administrative Tribunal Act 2009, sections 245 and 257; Tamawood Ltd. &   Anor v Paans [2005] QCA 111; Horsburgh v   Queensland Building Services Authority   [2008] QCCTB 235; Civic Steel Homes Pty   Ltd v Mitra [2006] QDC 322.

APPEARANCES and REPRESENTATION (if any):

On the papers.

REASONS FOR DECISION

1.On 22 January 2009, the Applicant, Gary Raymond Colling, filed an application for review with the then Commercial and Consumer Tribunal (“CCT”) of a decision by the Queensland Building Services Authority (“QBSA”), dated 19 December 2008, relating to a decision by the QBSA that the Applicant had failed to satisfactorily rectify items that were the subject of a QBSA direction to rectify and/or complete.  The Applicant’s affidavit of service was filed with the CCT on 30 January 2009. 

2.Ultimately, after failing to comply with directions issued by the CCT on 25 February 2009 and failing to comply with correspondence from the CCT dated 1 May 2009, the Applicant consented to withdrawal of his application on 29 June 2009.  The QBSA also consented to this withdrawal.  The CCT then issued an Order dated 10 July 2009 vacating the hearing in the matter and requiring the QBSA to advise in writing as to whether it claimed costs. 

3.The QBSA, on 8 July 2009, made an application for the costs of the proceedings, using the CCT Form 4 “Application in a proceeding” and annexing written submissions in support of the QBSA’s assertions that it is entitled to costs on the District Court Scale, to be assessed.

4.I note that there is no indication in the materials before me that the QBSA was granted leave to be legally represented in the matter, whether by external legal counsel, or by its own in-house legal team.   In my view, this is a pre-condition to the awarding of legal costs in jurisdictions where parties are not entitled, as of right, to appear with legal representation.

Applicable Law – Transitional Provisions of QCAT

5.The CCT has amalgamated into the Queensland Civil and Administrative Tribunal (“QCAT”). QCAT now hears and decides all matters previously dealt with by the Commercial and Consumer Tribunal.  As this matter had been heard and determined as at the commencement of QCAT, it is considered to be an “other proceeding” for purposes of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”), s 245. Accordingly, the applicable transitional provision of the QCAT Act is section 257.

6.Relevantly, section 257 of the QCAT Act provides that:

1. This section…