HK Developments Pty Ltd v Carter (No 2)

CITATION: HK Developments Pty Ltd v Carter (No 2) [2014] QCAT 437

PARTIES:	HK Developments Pty Ltd (Applicant)
V
Nathan Carter (Respondent)

APPLICATION NUMBER: BDL056-11

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Gardiner

DELIVERED ON: 5 September 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.  The application by HK Developments Pty Ltd for costs is dismissed.

CATCHWORDS:

BUILDING MATTER – COSTS – where both parties unrepresented – where matter had many complicated issues– where delays alleged – where order made in favour of builder – whether costs should be awarded

Queensland Building and Construction Commission Act 1991 (Qld), s 77
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102

Lyons v Dreamstarter Pty Ltd [2011] QCATA 142; followed

Lyons v Dreamstarter Pty Ltd [2012] QCATA 071; followed
Cachia v Hanes [1994] HCA 14 followed
Von Reisner v Commonwealth of Australia (no 2) [2009] FCAFC 172 referred

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. HK Developments Pty Ltd brought an application to QCAT in a building dispute between itself as builder and its client Nathan Carter.

2. On 14 July 2014 this Tribunal handed down a decision in this building dispute in favour of HK Developments. 

3. HK Developments had made a costs application in the event of the successful outcome.  A timetable for submissions was directed and the application for costs was set to be heard on the papers.  This is a consideration of that application. 

4. Costs are determined under section 77(2)(h) of the Queensland Building and Construction Commission Act 1991 (Qld).

5. The effect of this section, which modifies the general position under the QCAT Act, is to give the Tribunal a broad general power to award costs in cases caught by these enabling provisions.[1] This enabling Act allows that while the power must be exercised judicially it is ‘in markedly different terms from s 100 of the QCAT Act’[2] which starts with the parties bearing their own costs.

   [1]        Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 at [33].

   [2] Ibid at [10].

6. As his Honour the then President of QCAT determined in the appeal decision of Lyons v Dreamstarter Pty Ltd[3] about section 77,

   “The discretion to award costs starts with the proposition that it is just and reasonable that a party who causes another to incur costs should reimburse the other party for them. Otherwise the factors affecting the discretion will vary in each case.”

   [3] Ibid at [11].

7. This matter is representative of many building disputes between builders and home owners that come before QCAT.  Both parties were legally unrepresented – at their election. 

8. The matter commenced in March 2011 and had a tortured passage in this tribunal.  On the first listed day of the originally listed multi-day hearing, it was apparent that neither party was…