Croft v Queensland Building and Construction Commission - [2025] QCAT 329

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Croft v Queensland Building and Construction Commission [2025] QCAT 329

PARTIES:

SCOTT CROFT

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR390-20 & GAR391-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

1 September 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

1. The respondent pay the applicant’s cost of and incidental to these proceedings to be agreed or failing agreement to be assessed by way of a short form assessment on the Distrct Court scale by a Costs Assessor to be agreed between the parties and failing agreement as determined by the Tribunal.

2. The parties have liberty to apply on the giving of 5 days notice in writing to the other party.

CATCHWORDS:

ADMINISTRATIVE LAW – GENERAL ADMINISTRATIVE REVIEW – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – where applicants achieved a positive outcome from their review applications without a tribunal determination – where the applicant incurred considerable costs and outlays in prosecuting the applications – where applicants have applied for costs – whether interests of justice require the respondent to pay costs – whether costs and outlays of applicant reasonable – whether exercise of discretion should favour the making of an order for costs.

Queensland Civil and Administrative Tribunal Act2009 (Qld), s 100, ss 100, 102 and 107.

Queensland Building and Construction Commission Act 1991.

Cantamessa v Queensland Building and Construction

Commission (No 2) [2021] QCAT 213

Cowen v Queensland Building and Construction Commission [2021] QCATA 103

Fuge v Queensland Building and Construction Commission [2014] QCAT 383
Marzini v Health Ombudsman (No 4) [2020] QCAT 365
Neller v Queensland Building and Construction Commission [2021] QCAT 426
Wardanski v Mawby (No 2) [2023] QSC 237
Pound v Queensland Building and Construction Commission [2023] QCAT 298
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No2) [2010] QCAT 412

Stuart v Queensland Building and Construction Commission [2016] QCATA 135

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

Background

Although the substantive issues in these two review applications have been resolved between the applicant and the Commission, they have not been dismissed or withdrawn because the applicant has applied for costs. His contention is that when regard is had to the history of his complaints to the Commission about defective building work in the construction of his house, and the outcome whereby he has substantially succeeded by bringing these review proceedings, it is in the interest of justice, pursuant to s 102(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”), that he should be awarded costs.
In considering the question of costs, I am mindful that the Commission is a regulatory authority and should not make decisions simply on the basis that it might be exposed to costs.[1] The objects of the Queensland Building and Construction…

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: [2025] QCAT 329
Decision Date: 1 September 2025

CaseChat Overview and Summary

Croft and another v Queensland Building and Construction Commission concerned a dispute where the applicants sought costs against the Commission following a successful review application. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining whether the interests of justice required the Commission to pay the applicants' costs and whether the costs claimed by the applicants were reasonable. The applicants had achieved a positive outcome from their review applications without a tribunal determination and had incurred considerable costs and outlays in prosecuting the applications.

The legal issues that the QCAT had to decide were whether the interests of justice warranted an order for costs against the Commission and whether the costs and outlays claimed by the applicants were reasonable. The QCAT considered the history of the applications, investigations by Newsky in April 2020, and reports from Core Consultants identifying non-compliance with the footing design. The QCAT also considered the financial circumstances of the applicants and the purpose of the Housing Works Insurance Scheme (HWIS).

The QCAT held that a costs order against the Commission was appropriate in the interests of justice, adopting the view expressed by Judicial Member McGill SC in Cowen v Queensland Building and Construction Commission that any benefit to the applicants would be significantly eroded without an order for costs. The QCAT further directed that the costs of the proceedings be agreed or, if agreement could not be reached, assessed on the District Court scale by a Costs Assessor. The QCAT considered it reasonable for the applicants to engage counsel early in the proceedings and that the solicitors' costs should be assessed from 1 October 2020. The tribunal proposed to make general observations about the costs claimed to assist the parties in reaching an agreement, thereby avoiding further delay and costs associated with a formal costs assessment.

The QCAT ordered that the respondent pay the applicants' costs of and incidental to these proceedings to be agreed or, failing agreement, to be assessed by way of a short form assessment on the District Court scale by a Costs Assessor to be agreed between the parties and, failing agreement, as determined by the Tribunal. The parties were granted liberty to apply on the giving of 5 days notice in writing to the other party.

Orders

Orders of the court

1. The respondent pay the applicant’s cost of and incidental to these proceedings to be agreed or failing agreement to be assessed by way of a short form assessment on the Distrct Court scale by a Costs Assessor to be agreed between the parties and failing agreement as determined by the Tribunal.

2. The parties have liberty to apply on the giving of 5 days notice in writing to the other party.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Even though it was the fifth complaint which activated the insurance, I am of the view that when considering all of the evidence objectively, success for the applicant on the current proceedings was the most likely outcome.Conclusion on Costs Despite reservations that may be applicable to allowing costs awards against regulatory authorities, I am of the opinion that: (a)having regard to the history of these applications;(b)the investigations by Newsky in April 2020 and the subsequent reports and comments from Core Consultants in the middle of 2020 clearly identifying non-compliance with the footing design;(c)the financial circumstances of the applicant, and(d)the purpose of the HWIS,that a costs order against the Commission is appropriate in the interests of justice. In coming to this conclusion I respectfully adopt what Judicial Member McGill SC said in Cowen v Queensland Building and Construction Commission[22] that in view of the probable success by the applicant in these proceedings any benefit will be significantly eroded without an order for costs.[22][2021] QCATA 103, [75].Fixing Costs or Assessment The QCAT Act requires the Tribunal to fix the costs if possible.[23] Ms Reid has provided a schedule of costs and outlays in her affidavit from [321]. The applicant is only asking for the costs of these proceedings which were filed on 20 October 2020. The Commission submits that if a costs order is to be made the order should be that costs be agreed or assessed on the District Court scale of costs. [23]QCAT Act s 107. Having regard to the sequence of events set out in Ms Reid’s affidavit, which is not really challenged, I could assess costs, because generally, reasonable outlays incurred are recoverable. That then leaves the solicitors costs. However, given the large amount of costs claimed it really should be left to an expert to make that assessment if the parties cannot agree. However, to assist the parties to come to an agreement on costs I propose to make some general observations about the costs claimed. This, hopefully, will save the applicant further delay and costs in going to a formal costs assessment, which may ultimately end up back before me in any event if there is no agreement. I am of the view that given the complexity of the matter it was reasonable to engage counsel at an early stage in these proceedings, which occurred in early October 2020. Both counsel and the solicitors have reduced the fees claimed in the schedule. Invoices have been attached. Except for some outlays, I would propose that the solicitors costs be assessed from 1 October 2020 which would include the preparation of the applications and filing of same. I consider this is reasonable because by then, even before then in mid 2020, it was established that the footing system was defective in its construction contrary to the design. The debate about whether they were causing structural damage to the house is somewhat irrelevant when it knew, or ought to have been known, they were likely to fail in any event.[24][24]The solicitors costs from 1 October 2020 are $134,602.38 including those referred to in [328] of the Reid affidavit.

Ratio Decidendi

Legal Principle Established

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