Kilgour v Queensland Building Services Authority - [2010] QCAT 87

CITATION:Kilgour v Queensland Building Services Authority [2010] QCAT 87

PARTIES:Julie Francis Kilgour

V

QueenslandBuilding Services Authority

APPLICATION NO: QR152-07

MATTER TYPE: Building matters

HEARING DATE: On the Papers

DECISION OF: K. Geraghty, Member

DELIVERED AT: Brisbane
DELIVERED ON: 9 April 2010

ORDERS MADE: As per Order

CATCHWORDS Application for costs; consideration of sections 70 and 71 of the Commercial and Consumer Tribunal Act and discretionary factors; whether the Queensland Civil and Administrative Tribunal Act applies.

APPEARANCES and REPRESENTATION (if any)

Decision on the papers.

REASONS FOR DECISION

The applicant applied to the then Commercial and Consumer Tribunal for a review of a decision made by the Respondent. That application has been resolved, but now the applicant seeks her costs on an indemnity basis, while the respondent contends that each party should bear their own costs.
I determine this costs issue “on the papers” as ordered by the former Commercial and Consumer Tribunal on 12 November 2009.

Background

In April/May 2007 the applicant contracted with a contractor, Pepys Projects Pty Ltd to have certain pre-finished wall units installed in her apartment. She complained to the respondent that the contractor’s work was defective and incomplete.
On 2 August 2007 the respondent, by its inspector, inspected the work, and a report dated 8 August 2007 was prepared. That report stated that the installation was not included in the definition of building work in the Queensland Building Services Authority Act 1991. The report also stated that there was no significant defect in the work. It also noted that the applicant had refused to allow the contractor access the job, although the contractor gave the inspector a verbal undertaking to rectify any defects and to complete the work.
Accordingly, by letter dated 9 August 2007 the respondent advised the applicant that it would not do the work and that the respondent was unable to assist.
The applicant then applied to the Commercial and Consumer Tribunal (“CCT”) for a review of this decision on 6 September 2007, claiming that the work was building work and that it was defective. She retained solicitors, and says that she had to obtain an independent expert report.
Applications were made to the CCT on 14 September 2007 for an extension of time to enable the retainer of the expert; and on 14 December 2007 for directions.
Little happened to progress the hearing after that.
The applicant says that in March 2009 (in fact 18 March 2009) the respondent wrote to the CCT advising that the work was building work, and that the CCT made a finding to the effect that the work was also defective. This was in respect of the present applicant’s proceeding against Pepys Projects Pty. Ltd. There was an interlocutory decision made in that matter on 30 March 2009 by the CCT. A perusal of that decision indicates that there was in fact no final determination as to whether the work was defective, but reference was made to evidence supporting the contention that the…

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: [2010] QCAT 87
Decision Date: 9 April 2010

CaseChat Overview and Summary

Julie Francis Kilgour sought to recover her costs from the Queensland Building Services Authority (QBSA) following a dispute about the installation of pre-finished wall units in her apartment. Ms Kilgour argued that the contractor’s work was defective and incomplete and complained to the QBSA. The QBSA inspected the work and concluded that it was not building work and that there was no significant defect. Ms Kilgour applied to the Commercial and Consumer Tribunal (CCT) for a review of this decision, and the application was ultimately resolved. However, Ms Kilgour now sought her costs on an indemnity basis. The QBSA argued that each party should bear their own costs.

The court had to determine whether Ms Kilgour was entitled to her costs on an indemnity basis or whether each party should bear their own costs. The court considered the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) and the former Commercial and Consumer Tribunal Act 2003 (CCT Act). The court found that the QCAT Act applied to the matter and that the provisions as to costs contained in the former CCT Act should be applied.

The court considered the outcome of the proceeding, the conduct of the parties, the relative strengths of the claims made by each party, and the distress and anxiety caused to the applicant. The court found that the QBSA acted unreasonably and without merit in its defence, and the applicant acted reasonably in not withdrawing her review application without the issue of costs being finalised. The court ordered that the QBSA pay the applicant’s costs on a standard basis on the District Court Scale of Costs. However, the court did not consider the circumstances sufficient to order indemnity costs. The court adopted the QBSA’s proposals as to costs.

The final order was that the QBSA is ordered to pay the applicant’s costs and incidental to this proceeding on a standard basis on the District Court Scale of Costs. The costs will be assessed by the applicant delivering to the Authority an itemised claim for costs referring to the relevant items contained in the District Court Scale of Costs. If within fourteen days of that delivery, the parties have not agreed to an amount for costs, then the applicant shall deliver to the respondent a list of three legal cost assessors, and within seven days of the delivery of the list of legal cost assessors, the respondent will select one of the legal cost assessors from the list. The costs shall be assessed by the legal costs assessor chosen by the respondent. The respondent shall pay the applicant’s costs (as agreed or assessed) within fourteen days of such agreement or assessment.

Orders