Holmes v Queensland Building Services Authority
[2011] QCAT 158
•12 April 2011
| CITATION: | Holmes v Queensland Building Services Authority [2011] QCAT 158 |
| PARTIES: | Mr Richard Wayne Holmes |
| v | |
| Queensland Building Services Authority |
| APPLICATION NUMBER: | QR066-08 |
| MATTER TYPE: | Building matters / General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Cairns |
| DECISION OF: | T Fantin, Member |
| DELIVERED ON: | 12 April 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for costs is allowed. 2. The respondent pay the applicant’s costs fixed in the sum of $1,292 within 14 days of this order. |
| CATCHWORDS: | Costs – Building matter – Review of Queensland Building Services Authority direction to rectify – whether in interests of justice to award costs in favour of successful party Queensland Civil and Administrative Tribunal Act 2009, ss 245, 256, 271 Commercial and Consumer Tribunal Act 2003, ss 70, 71 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Holmes was self represented |
| RESPONDENT: | Queensland Building Services Authority was self represented |
REASONS FOR DECISION
Background
On 7 September 2010, this Tribunal made orders allowing the review application filed by the applicant and setting aside the direction to rectify issued by the respondent to the applicant. The parties were directed to file written submissions on costs.
The parties subsequently filed written submissions pursuant to that order.
The applicant, who was self represented at the hearing, seeks an order that the respondent pay his costs of the proceeding in the sum of $1,763.
The respondent submits that there should be no order as to costs, or an order that each party bear its own costs of the proceeding. The respondent further submits that if the Tribunal is satisfied that there should be an order for costs in favour of the applicant, the applicant’s costs should be limited to $230, being the filing fee for the review application.
Statutory regime
The review application was a pending proceeding within the meaning of s 245 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”). This Tribunal has jurisdiction to deal with the matter the subject of the pending proceeding: s 256. However, in doing so it only has the power and functions that the former tribunal, the Commercial and Consumer Tribunal (“CCT”), had in relation to the matter under the former Act: s 271.
The power of the CCT to order costs on a review hearing was set out in ss 70 and 71 of the Commercial and Consumer Tribunal Act 2003 (“CCT Act”).
Those sections stated, so far as is relevant:
70 Purposes of div 7
The main purpose of this division is to have parties pay their own costs unless the interests of justice require otherwise.
71 Costs
(1) ...
(2) …
(3) …
(4)In deciding whether to award costs, and the amount of the costs, the tribunal may have regard to the following—
(a)the outcome of the proceeding;
(b)the conduct of the parties to the proceeding before and during the proceeding;
(c)the nature and complexity of the proceeding;
(d)the relative strengths of the claims made by each of the parties to the proceeding;
(e)any contravention of an Act by a party to the proceeding;
(f)for a proceeding to which a State agency is a party, whether the other party to the proceeding was afforded natural justice by the State agency;
(g)anything else the tribunal considers relevant.
Examples of paragraph (g)—
The tribunal may consider whether a party to a proceeding is acting in a way that unreasonably disadvantages another party to the proceeding.
The tribunal may consider whether the proceeding, or a part of the proceeding, has been frivolous or vexatious.(5)A party to a proceeding is not entitled to costs merely because—
(a) the party was the beneficiary of an order of the tribunal; or
(b) the party was legally represented at the proceeding.(6)The power of the tribunal to award costs under this section is in addition to the tribunal’s power to award costs under another provision of this or another Act.
(7) The tribunal may direct that costs be assessed—
(a) in the way decided by a presiding case manager; or
(b) by a person appointed by the tribunal.
Discussion
The starting point concerning costs is that each party must pay its own. This presumption may, however, be displaced if the Tribunal considers it in the interests of justice to order a party to pay all or part of the costs of another party.
A party is not entitled to an order for costs merely because the party was the beneficiary of an order or was legally represented: s 71(5).
[10] In determining whether it is in the interests of justice to award costs against another party the Tribunal may have regard to the matters in s 71(4). I consider those matters below, so far as they are relevant to this proceeding.
The outcome of the proceeding
[11] The applicant was successful in having the respondent’s direction to rectify issued on 4 March 2008 set aside, after a contested hearing of one day involving written and oral evidence from a number of witnesses.
The conduct of the parties before and during the proceeding
[12] The respondent issued a direction to rectify on 4 March 2008 based upon a complaint made in December 2007 by the owner of the pool[1]. The owner’s complaint referred to the contract as “Quote 27/3/06”.
[1] Reasons for decision 7 September 2010 at [18]–[23].
[13] For reasons which are unclear, the respondent in its statement of reasons filed in the CCT on 17 July 2008, prepared by its solicitors, did not rely upon the 2006 quotation referred to in the owner’s complaint (which was the applicable contractual document) but relied upon a different quotation dated 29 September 2005.[2]
[2] Reasons at [27].
[14] The applicant’s statement, filed 29 August 2008, made it clear that the respondent was relying upon the wrong quotation, which was an earlier quotation relating to different work on a different pool. The applicant set out the correct quotation, which did not contain any reference to waterproofing.[3]
[3] Reasons at [28].
[15] Despite being on notice, the respondent did not amend its statement of reasons to refer to the correct quotation, and did not act upon the points raised in the applicant’s statement, until the Tribunal hearing almost 2 years later. If the respondent had done so, the proceedings may have been avoided.[4]
[4] Reasons at [28] - [29].
[16] The respondent’s direction to rectify was based on flawed assumptions that, in part, arose because of the respondent’s reliance on an incorrect quotation as the contractual document.[5] The same flawed assumptions permeated the statements of the respondent’s witnesses.
[5] Reasons at [64] – [68].
[17] It was only at the hearing that the respondent sought, and was granted, leave to amend its statement of reasons to refer to the correct quotation, and to abandon allegations relating to work done not by the applicant but by others.[6] These were matters that the respondent should have been aware of by September 2008.
[6] Reasons at [37] and [39].
[18] To further complicate matters, the owner of the land:
a)refused the applicant and his expert access to the pool for the purposes of preparing a report in the proceedings; and
b)engaged others to carry out rectification work, which was completed in 2007 and 2008, long before the review hearing.[7]
[7] Reasons at [30] – [33].
[19] As a result of the owner’s conduct, the applicant did not file any independent expert evidence. Although it is clear from the Reasons that the applicant’s inability to file independent expert evidence was due to the owner refusing access, the respondent seeks to rely upon the applicant’s lack of expert evidence in its written submissions on costs.
[20] The respondent’s oral and written submissions at hearing concentrated on the applicant’s alleged failure to comply with contractual requirements and alleged failure to comply with the manufacturer’s product guidelines. Neither of these grounds was articulated in the respondent’s statement of reasons or amended statement of reasons.[8]
[8] Reasons at [49] – [50].
[21] The respondent, in its written submissions on costs, submits that the respondent “acted appropriately at all times” and “with a view to the swift, appropriate resolution of the matter”. In the context of the respondent’s conduct of these proceedings set out above, I do not accept that submission.
The nature and complexity of the proceeding
[22] The proceedings were not particularly complex. Although the respondent was legally represented, the applicant was not. The applicant managed to convey the relevant information without difficulty.
The relative strengths of the claims made by the parties
[23] It should have been apparent to the respondent once it received the applicant’s statement of 29 August 2008, that the applicant’s case was strong and the respondent’s case was fundamentally flawed. However the respondent persisted with its erroneous view of the facts until the first day of the hearing, when it sought leave to amend. Despite being granted leave to amend, the respondent’s case still failed after a contested hearing.
Anything else the Tribunal considers relevant
[24] If the respondent had properly analysed the material filed, it would have been aware that there was fundamental problem with its case well before the hearing. This should or may have resulted in resolution of the proceeding prior to hearing.
Conclusion
[25] This is a case where in the circumstances as I have set out above, the interests of justice do require an order other than the parties bear their own costs of the proceedings.
[26] The applicant claims for a number of items of costs, which are really in the nature of outlays. I consider the following items are properly claimable by the applicant:
Legal advice, 2 visits @ $300 $600
CCT application $230
CCT record search $ 12
Travel Cairns/Airlie Beach for site inspection $450
TOTAL $1,292
[27] I allow the application for costs and order that the Respondent pay the Applicant’s costs fixed in the sum of $1,292 within 14 days of the date of this order.
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