J.Mac Constructions Pty Ltd v Queensland Building and Construction Commission - [2019] QCAT 249

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

J.Mac Constructions Pty Ltd v Queensland Building and Construction Commission [2019] QCAT 249

PARTIES:

J.MAC CONSTRUCTIONS PTY LTD
(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO:

OCR235-19

MATTER TYPE:

Costs

DELIVERED ON:

23 August 2019

HEARING DATE:

5 August 2019

HEARD AT:

Brisbane

DECISION OF:

Member Dr Collier

ORDERS:

Application dismissed.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – costs – interpretation of the Queensland Building and Construction Commission Act 1991 (Qld) – meaning of ‘for the benefit of a creditor’

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL ACT – costs – Queensland Civil and Administrative Tribunal Act 2009 (Qld) – s 100 – s 102

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – Queensland Civil and Administrative Tribunal Act 2009 (Qld) – s 100 – s 102

Professional Engineers and Other Legislation Amendment Act 2014 (Qld)
Queensland Building and Construction Commission Act 1991 (Qld), S 56AC
Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 100, s 102, s 102(3)(a), s 102(3)(b), s 102(3)(c), s 102(3)(d), s 102(3)(e), s 102(3)(f), s 107(1)

Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364
Ezra Constructions Pty Ltd & Ors v Queensland Building and Construction Commission & Ors [2019] QSC 47
J.Mac Constructions Pty Ltd v Queensland Building and Construction Commission [2019] QCAT (unpublished)
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412

Tamawood Limited v Paans [2005] QCA 111

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

The claim for costs was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

Colonial Properties Pty Ltd (‘Colonial’) was a builder that entered a members’ voluntary winding-up approved by the Queensland Supreme Court on 15 November 2013. At all relevant times Colonial was solvent and able to meet its debts as and when they fell due. Upon liquidation in January 2016 it returned 100 cents in the dollar to all creditors and a substantial sum to members.
At the date of the Winding-up Order, 15 November 2013, Craig Mortensen was secretary of Colonial Properties.
Mr Mortensen was also a director and secretary of J.Mac Constructions Pty Ltd (‘J.Mac’), a successful builder not financially related to Colonial, on and around the date when Colonial had the liquidator appointed.
Since 30 July 2015 J.Mac had been a QBCC licence-holder in the class: Builder - Low Rise. On 17 April 2018 J.Mac submitted an application to the QBCC seeking to be licenced also as: Builder - Medium Rise.
As a result of this application by J.Mac, the QBCC noticed that Mr Mortensen had been a director of Colonial at the time when a liquidator had been appointed.
As a result, the QBCC notified Mr Mortensen on 24 May 2018 that he had been categorised as…

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: [2019] QCAT 249
Decision Date: 23 August 2019

CaseChat Overview and Summary

J.Mac Constructions Pty Ltd initiated proceedings against the Queensland Building and Construction Commission in the Queensland Civil and Administrative Tribunal (QCAT). The dispute concerns the interpretation of the Queensland Building and Construction Commission Act 1991 (Qld) and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) with respect to the awarding of costs. The central legal issue was whether the phrase ‘for the benefit of a creditor’ in the Building and Construction Commission Act allowed for the recovery of costs by the Commission, and if so, under what conditions. Additionally, the court had to interpret section 100 and section 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to determine the circumstances under which costs could be awarded.

The court considered that the starting point for the award of costs is that each party must bear its own costs, a principle that can only be departed from if the interests of justice demand it. The tribunal examined the relevant statutory provisions and concluded that there was no clear legislative intent to allow for the recovery of costs by the Commission for the benefit of a creditor. The tribunal found that the phrase in question did not provide a basis for the award of costs in this case. Consequently, the tribunal held that the interests of justice did not require a departure from the standard rule that each party bears its own costs.

The tribunal dismissed the application by J.Mac Constructions Pty Ltd for the recovery of costs. The tribunal reasoned that the statutory provisions did not support such an award and that there were no exceptional circumstances that warranted a departure from the standard cost-bearing rule. The tribunal's decision was based on a careful interpretation of the relevant legislation and the principle that the interests of justice did not necessitate an exception to the usual cost-bearing rule. The tribunal's final order was that the application for costs be dismissed.

Orders

Orders of the court

Application dismissed.

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

The starting point for the award of costs by QCAT is that each party to a proceeding must bear its own costs. This starting point can be displaced only where the interests of justice require it. The interests of justice do not require the starting point to be displaced in this case.Decision The Application is dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	J.Mac Constructions Pty Ltd v Queensland Building and Construction Commission [2019] QCAT 249
PARTIES:	J.MAC CONSTRUCTIONS PTY LTD (applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO:	OCR235-19
MATTER TYPE:	Costs
DELIVERED ON:	23 August 2019
HEARING DATE:	5 August 2019
HEARD AT:	Brisbane
DECISION OF:	Member Dr Collier
ORDERS:	Application dismissed.
CATCHWORDS:	STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – costs – interpretation of the Queensland Building and Construction Commission Act 1991 (Qld) – meaning of ‘for the benefit of a creditor’ ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL ACT – costs – Queensland Civil and Administrative Tribunal Act 2009 (Qld) – s 100 – s 102 PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – Queensland Civil and Administrative Tribunal Act 2009 (Qld) – s 100 – s 102 Professional Engineers and Other Legislation Amendment Act 2014 (Qld) Queensland Building and Construction Commission Act 1991 (Qld), S 56AC Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 100, s 102, s 102(3)(a), s 102(3)(b), s 102(3)(c), s 102(3)(d), s 102(3)(e), s 102(3)(f), s 107(1) Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 Ezra Constructions Pty Ltd & Ors v Queensland Building and Construction Commission & Ors [2019] QSC 47 J.Mac Constructions Pty Ltd v Queensland Building and Construction Commission [2019] QCAT (unpublished) Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Tamawood Limited v Paans [2005] QCA 111
REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented
APPEARANCES:	The claim for costs was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).