Donovan Hill Pty Ltd v McNab Constructions Australia Pty Ltd - [2015] QCA 114

SUPREME COURT OF QUEENSLAND

CITATION:

Donovan Hill Pty Ltd v McNab Constructions Australia Pty Ltd [2015] QCA 114

PARTIES:

DONOVAN HILL PTY LTD
ACN 101 631 341

(applicant)v
McNAB CONSTRUCTIONS AUSTRALIA PTY LTD
ACN 102 840 906
(respondent)

FILE NO/S:

Appeal No 7267 of 2014
QCAT No 48 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane – [2014] QCATA 172

DELIVERED ON:

23 June 2015

DELIVERED AT:

Brisbane

HEARING DATE:

19 March 2015

JUDGES:

Margaret McMurdo P and Gotterson and Philippides JJA
Separate reasons for judgment of each member of the Court, Gotterson and Philippides JJA concurring as to the orders made, Margaret McMurdo P dissenting

ORDERS:

1.   Leave to appeal granted.

2.   Appeal dismissed.

3.   Appellant to pay the respondent’s costs of the application and the appeal on the standard basis.

CATCHWORDS:

ADMINISTRATIVE LAW - QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the QBSA issued a number of directions to rectify to the respondent in respect of an apartment complex – where the respondent applied to the Commercial and Consumer Tribunal for review of the decisions to issue the directions – where the review proceedings became proceedings in QCAT as successor to the Commercial and Consumer Tribunal – where the respondent applied under s 42 of the QCAT Act for orders joining an array of entities as parties to each of the applications – where the applicant sought to be joined in each review proceeding under the name Donovan Hill Architects – where a member of QCAT ordered that the joinder application be dismissed with respect to all entities sought to be joined – where directions were made that any application for costs by QBSA or any of the proposed parties be filed by 18 January 2013 and that the costs applications be determined on the papers – where the applicant filed an application for costs – where three of the other proposed parties also applied for costs – where the Tribunal member made orders in respect of the applications on 20 August 2013 – where the respondent appealed against those orders and costs orders made in favour of two of the other proposed parties – where an Appeal Tribunal of QCAT allowed the appeal, set aside the costs orders and dismissed the costs applications of the applicant and the other two proposed parties – where a live issue in both the application before the member and the appeal to the Appeal Tribunal was whether QCAT has power to award costs to a person who successfully resists a joinder application – where the member concluded that QCAT was so empowered – where the Appeal Tribunal held that QCAT was not so empowered – whether the determination of a joinder application under s 42 is in exercise of QCAT’s original jurisdiction or its review jurisdiction – whether QCAT is empowered to award costs to a person whom a party to a proceeding…

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: [2015] QCA 114
Decision Date: 23 June 2015

CaseChat Overview and Summary

Donovan Hill Pty Ltd, the applicant, sought to join various parties to proceedings before the Queensland Civil and Administrative Tribunal (QCAT) which were initially brought by McNab Constructions Australia Pty Ltd, the respondent, to review directions issued by the Queensland Building Services Authority (QBSA) concerning an apartment complex. The review proceedings were brought under section 42 of the QCAT Act, which allows for the joinder of additional parties. QCAT dismissed the application to join the additional parties and directed that costs applications be filed by a certain date. Following this, Donovan Hill and three other proposed parties filed their own applications for costs. The Tribunal member made orders in favour of all four applicants. McNab appealed the costs orders made in favour of Donovan Hill and the other two proposed parties. The Appeal Tribunal set aside the costs orders and dismissed the costs applications of all three parties. A key issue before both the Tribunal member and the Appeal Tribunal was whether QCAT has the power to award costs to a person who successfully resists a joinder application.

The Appeal Tribunal held that QCAT lacks the power to award costs to a party who successfully resists a joinder application. This decision was based on the Tribunal's interpretation of its jurisdiction under the QCAT Act. The Appeal Tribunal concluded that the determination of a joinder application under section 42 is not an exercise of QCAT's original jurisdiction, but rather its review jurisdiction. Given this, the Appeal Tribunal reasoned that QCAT cannot award costs in such circumstances because it does not have the inherent jurisdiction to do so in the context of a review proceeding. The Appeal Tribunal thus allowed the appeal, set aside the costs orders, and dismissed the costs applications of Donovan Hill and the other two proposed parties.

Following the Appeal Tribunal's decision, Donovan Hill applied for leave to appeal to the Supreme Court of Queensland. The Court granted leave but ultimately dismissed the appeal. The Court affirmed the Appeal Tribunal's reasoning and held that QCAT does not have the power to award costs to a party who successfully resists a joinder application. The Court also ordered that Donovan Hill pay McNab's costs of the application and the appeal on the standard basis.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal dismissed.

3. Appellant to pay the respondent’s costs of the application and the appeal on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Donovan Hill Pty Ltd v McNab Constructions Australia Pty Ltd [2015] QCA 114
PARTIES:	DONOVAN HILL PTY LTD ACN 101 631 341 (applicant)v McNAB CONSTRUCTIONS AUSTRALIA PTY LTD ACN 102 840 906 (respondent)
FILE NO/S:	Appeal No 7267 of 2014 QCAT No 48 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane – [2014] QCATA 172
DELIVERED ON:	23 June 2015
DELIVERED AT:	Brisbane
HEARING DATE:	19 March 2015
JUDGES:	Margaret McMurdo P and Gotterson and Philippides JJA Separate reasons for judgment of each member of the Court, Gotterson and Philippides JJA concurring as to the orders made, Margaret McMurdo P dissenting
ORDERS:	1. Leave to appeal granted. 2. Appeal dismissed. 3. Appellant to pay the respondent’s costs of the application and the appeal on the standard basis.
CATCHWORDS:	ADMINISTRATIVE LAW - QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the QBSA issued a number of directions to rectify to the respondent in respect of an apartment complex – where the respondent applied to the Commercial and Consumer Tribunal for review of the decisions to issue the directions – where the review proceedings became proceedings in QCAT as successor to the Commercial and Consumer Tribunal – where the respondent applied under s 42 of the QCAT Act for orders joining an array of entities as parties to each of the applications – where the applicant sought to be joined in each review proceeding under the name Donovan Hill Architects – where a member of QCAT ordered that the joinder application be dismissed with respect to all entities sought to be joined – where directions were made that any application for costs by QBSA or any of the proposed parties be filed by 18 January 2013 and that the costs applications be determined on the papers – where the applicant filed an application for costs – where three of the other proposed parties also applied for costs – where the Tribunal member made orders in respect of the applications on 20 August 2013 – where the respondent appealed against those orders and costs orders made in favour of two of the other proposed parties – where an Appeal Tribunal of QCAT allowed the appeal, set aside the costs orders and dismissed the costs applications of the applicant and the other two proposed parties – where a live issue in both the application before the member and the appeal to the Appeal Tribunal was whether QCAT has power to award costs to a person who successfully resists a joinder application – where the member concluded that QCAT was so empowered – where the Appeal Tribunal held that QCAT was not so empowered – whether the determination of a joinder application under s 42 is in exercise of QCAT’s original jurisdiction or its review jurisdiction – whether QCAT is empowered to award costs to a person whom a party to a proceeding…