Fraser v Queensland Building and Construction Commission
[2014] QCAT 622
•25 November 2014
| CITATION: | Fraser v Queensland Building and Construction Commission & Anor [2014] QCAT 622 |
| PARTIES: | Philip Fraser (Applicant) |
| v | |
| Queensland Building and Construction Commission (First Respondent) G James Glass & Aluminium (Qld) Pty Limited (Second Respondent) |
| APPLICATION NUMBER: | GAR257-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 24 October 2014 and on the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Howard |
| DELIVERED ON: | 25 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Queensland Building and Construction Commission must pay the costs of Philip Fraser in the amount of $2,985.40 by 4pm on 17 December 2014. |
| CATCHWORDS: | COSTS – REVIEW PRCEEDINGS – where stay order made by Tribunal – where proceedings withdrawn and then reopened – where several requests for confirmation that recovery proceedings will not be commenced pending determination of review proceeding – where no response – where review applicant later seeks interim orders to prevent enforcement proceedings pending review – whether in the interests of justice to order payment of costs – whether indemnity costs appropriate basis for assessment Queensland Building and Construction Commission Act 1991 (Qld), s 71, s 72 |
APPEARANCES:
| APPLICANT: | Mr Fraser represented by Mr M Panayi, Industry Lawyers |
| RESPONDENT: | Queensland Building and Construction Commission represented by Mr S E Seefeld instructed by Holding Redlich G James Glass & Aluminium (Qld) Pty Limited did not appear |
REASONS FOR DECISION
Background
Mr Philip Fraser applied to review a decision of the Queensland Building and Construction Commission (‘QBCC’) to issue directions to rectify in respect of alleged defects in building work. The application for review has followed an unusual course.
The application for review was filed on 12 August 2013. On 31 October 2013 the Tribunal made an order that until further order of the Tribunal the directions to rectify, (numbered 39155 to 39160 inclusive), are stayed. On 13 March 2014 the application for review was withdrawn.
However, on 4 July 2014 an application for reopening was filed by Mr Fraser. Prior to this date the QBCC had indicated it would not oppose the reopening application.[1] On 8 July 2014, the QBCC then gave Mr Fraser infringement notices under s 72(10) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’). Those infringement notices were then withdrawn on 21 July 2014 by the QBCC.
[1]Letter dated 27 June 2014 QBCC to Industry Lawyers attached to affidavit of Michael Panayi filed 22 October 2014.
The Tribunal made orders allowing the reopening on 7 August 2014. Then on 12 August 2014 the QBCC gave notices of potential debt to Mr Fraser under s 71 of the QBCC Act.
On 15 August 2014 and 21 August 2014 Mr Fraser requested withdrawal of the notices of potential debt and confirmation that no steps would be taken under s 71 of the QBCC Act pending the outcome of the review proceedings. On about 21 August 2014, Holding Redlich Lawyers advised Mr Fraser’s lawyers that they now acted for QBCC. The letter of 21 August was addressed to them. There was no response to the requests and the notices of potential debt were not withdrawn.
A directions hearing was held on 28 August 2014. QBCC made submissions about whether the stay order remained in effect. It is common ground that Senior Member Oliver, indicated without deciding the point, that the parties should act as though the stay order remained in force and that the QBCC could bring an application on that issue if it wished.
On 30 September 2014, QBCC gave notices of debt to Mr Fraser under s 71 of the QBCC Act.
On 7 October 2014, Mr Fraser then filed an interim application seeking orders to the effect that QBCC be prohibited from taking any steps under s 72(10) and s 71 of the QBCC Act pending determination of the review, and withdrawal of the notices of potential debt and notices of debt. He also sought orders for costs against the QBCC on an indemnity basis. The Tribunal directed the QBCC to file its outline of argument in response to the application by 21 October 2014 and listed the application for hearing on 24 October 2014.
On 13 October 2014 the QBCC emailed the Tribunal registry, but not Mr Fraser, to advise that it was in effect prepared to consent to the orders sought, except as to costs. Subsequently on 20 October 2014 the QBCC advised Mr Fraser that it was prepared in effect to consent to the orders sought, with the exclusion of the order for costs.
When the matter came before the Tribunal on 24 October 2014, it came to light that the second respondent, G James Glass and Aluminium (Qld) Pty Limited (‘G James Glass’) had not been given notice of the hearing by the Tribunal. Both other parties confirmed that they had served GJ Glass with their documents relating to the interim application.
The substantive issues were resolved by the QBCC giving undertakings in the following terms:
The Queensland Building and Construction Commission (the Commission) undertakes as follows:
1.Until final determination of proceeding GAR257-13, the Commission will not take steps to enforce a penalty for any offence under s 72(10) of the Queensland Building and Construction Commission Act 1991 (Qld).
2.Until final determination of proceeding GAR257-13, the Commission will not commence recovery proceedings under section 71 of the Queensland Building and Construction Commission Act 1991 (Qld).
3.The Commission agrees to withdraw letters dated 12 August 2014, being Notices of Potential Debt.
4.The Commission agrees to withdraw letters dated 30 September 2014, being Notices of Debt.
The only contested issue remaining was costs. Mr Fraser seeks his costs on an indemnity basis in the sum of $2,985.40.
It appears that G James Glass has been a reluctant participant in the proceedings. Although it appeared likely that it would not have submissions to make in respect of the application for costs (and it appears unlikely to have incurred any costs itself in respect of the application), it is nevertheless entitled to procedural fairness in respect of applications in the proceeding before the Tribunal. Accordingly, I made directions in the following terms:
1.Philip Fraser and the Queensland Building and Construction Commission must serve their further submissions filed by leave today on G James Glass & Aluminium (Qld) Pty Limited, by:
4:00pm on 24 October 2014
2.G James Glass & Aluminium (Qld) Pty Limited must file and serve on Philip Fraser and the Queensland Building and Construction Commission any submissions it makes in respect of costs on Philip Fraser’s Application for an Interim Order filed on 7 October 2014, by:
4:00pm on 31 October 2014
3.The issue of costs on the Application for an Interim Order will be determined on the papers not before:
4:00pm on 31 October 2014
GJ Glass has not filed any submissions.
Should a costs order be made?
Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that other than as provided under the Act or an enabling Act, each party must bear their own costs. The former President of QCAT, Justice Wilson considered that this constitutes a strong contra-indication against costs orders.[2] That said, s 102 provides that the Tribunal may make an order for costs requiring a party to pay all or part of the costs of another party, if it is in the interests of justice to do so.
[2]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412.
In deciding whether to make an order for costs, the Tribunal may have regard to numerous factors: s 102(3). These factors include whether a party is acting in a way that unnecessarily disadvantages another party; the relative strength of the claims; and anything else the Tribunal considers relevant.
The infringement notices, although subsequently withdrawn, were given on 8 July 2014, that is, after QBCC had indicated it did not oppose the reopening. Orders were made reopening the proceeding on 7 August 2014. Then a few days later, notices of potential debt were given to Mr Fraser on 12 August 2014. Mr Fraser requested twice in correspondence dated 15 August and 21 August that they be withdrawn. They were not. Nor did he receive a response to his requests. It appears from the issue raised by the QBCC at the directions hearing on 28 August 2014, that it may have considered the stay order was no longer in effect. However, QBCC did not bring an application to have the issue determined. It subsequently issued notices of debt under s 71 on 30 September. Shortly afterwards, Mr Fraser filed his application for interim orders.
The QBCC argues that its lawyers were not made aware of the notices of debt and that the first they knew of the documents was the interim application. They say that the QBCC’s lawyers then communicated the QBCC’s consent in advance of the hearing date on 20 October 2014, but that no response was received to the proposal. It says that it could have been resolved without the need for an appearance. QBCC also says it could hardly have done more to resolve the interim application. It is somewhat curious that then on 13 October 2014, the QBCC representatives told the Tribunal, but not Mr Fraser, that it was prepared to resolve the substantive issue. Mr Fraser was not made aware of it until a week later, a few days before the hearing date.
It appears from the submissions of QBCC’s lawyers that the QBCC may not have kept its lawyers fully instructed as to actions it was taking. That is not an issue for Mr Fraser. He was entitled to proceed on the basis that it had fully instructed it lawyers regarding issues related to the proceeding.
I find that the QBCC acted in a way which unnecessarily disadvantaged Mr Fraser. It did so, in failing to respond to Mr Fraser’s requests on 15 and 21 August for assurances about not taking action pending the outcome of the review and for withdrawal of the notices of potential debt and then issuing notices of debt. As a result, Mr Fraser had little choice but to bring the application for interim orders.
Further, in my view, Mr Fraser had a strong case for having interim orders made in the terms he sought, in keeping with the QBCC’s subsequent willingness to give its undertakings. Its actions in unreasonably failing to confirm for Mr Fraser its preparedness not to take steps under s 71 and s 72(10) of the QBCC Act, which are now the subject of its undertakings to the Tribunal dated 24 October 2014, until days before the hearing date created the need for the application for interim orders. It may have been possible to avoid the need for an appearance at the hearing at that point, except that the issue of costs remained outstanding.
Mr Fraser seeks his legal costs of $2,985.40. Given my finding that the QBCC has acted in a way that unnecessarily disadvantaged Mr Fraser, I consider that the case falls into the exception in which indemnity costs are appropriate.[3] I am satisfied that it is appropriate to award costs on an indemnity basis. The costs have been itemised and appear reasonable.
[3]See for example, The Body Corporate of Tradition Community Title Scheme 32885 v The Body Corporate of Coomera Waters Community Titles Scheme 29693 [2013] QCAT 303; Better Homes Queensland Pty Ltd v O’Reilly [2013] QCATA 122.
I make orders for QBCC to pay Mr Fraser’s costs in the amount of $2,985.40.
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