Johnston v Queensland Building Services Authority

CITATION:		Johnston v Queensland Building Services Authority  [2010] QCAT 443
PARTIES:	Brian Henry Johnston
v
Queensland Building Services Authority

APPLICATION NUMBER:   QR110-09

MATTER TYPE: Building matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe

DELIVERED ON: 6 September 2010

DELIVERED AT:      Brisbane

ORDERS MADE: The respondent’s application for costs is dismissed.

CATCHWORDS :  Costs – where party wholly successful – whether vexatious – where offer to settle - Tamawood Homes & anor –v- Paans - Horsburgh –v- Queensland Building Services Authority - Civic Steel Homes –v- Mitra – ss 256, 271 QCAT Act – ss 71, 142 CCT Act

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the

Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

1. On 5 May 2009, Mr Johnston filed an application for review of the Authority’s decision to refuse to categorise him as a permitted individual. On 26 May 2010, the day after a compulsory conference, Mr Johnston was given leave to withdraw his application. The Authority now seeks its costs of responding to Mr Johnston’s application.

2. The Authority says that the proceeding was a “pending proceeding” within the meaning of section 256 of the Queensland Civil and Administrative Tribunal Act (“QCAT Act”). “Pending proceeding is defined in section 245 of the QCAT Act as “an existing proceeding…if, at the commencement, the court of former tribunal has not started to hear a matter the subject of the proceeding”.  The only steps taken in the Commercial and Consumer Tribunal were directions hearings. I am satisfied that the tribunal had not started to hear the matter and, therefore, that this is a pending proceeding.

3. Because it is a pending proceeding, section 271(2)(b) of the QCAT Act states that the tribunal can only make a decision the former entity could have made in relation to the matter under the former Act. This means that the tribunal must determine the application for costs pursuant to the now repealed Commercial and Consumer Tribunal Act (“CCT Act”).

4. In determining an application for costs, section 71 of the CCT Act directs the tribunal’s attention to these matters:

a)The outcome of the proceedings;

b)The conduct of the parties before and during the proceeding;

c)The nature and complexity of the proceedings;

d)The relative strengths of the claims by the parties;

e)Any contravention of an Act by a party to the proceeding;

f)Whether the party was afforded natural justice by the State agency;

g)Anything else the tribunal considers relevant.

1. Section 142 of the CCT Act provided that if a party serves a written offer to settle, that offer is not accepted, the offer complies with requirements of the Act and, in the opinion of the tribunal, the decision of the tribunal is not more favourable to the other party than the offer, then the tribunal must award the party who made the offer the reasonable costs incurred in conducting the proceeding after the offer was made.

Offer to…