Macdonald v Queensland Building and Construction Commission - [2017] QCAT 128

CITATION:

Macdonald v Queensland Building and Construction Commission [2017] QCAT 128

PARTIES:	Michael Macdonald (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

GAR052-16

MATTER TYPE:	General administrative review matters
HEARING DATE:	3 March 2017

HEARD AT:

Brisbane

DECISION OF:

Member Favell

DELIVERED ON:

28 April 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Application for costs dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMISTRATIVE TRIBUNALS –QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – costs- where applicant was successful in a claim made against the QBCC in respect of a refusal to pay a claim for rectification work without the written approval by the QBCC- where application for costs.

Queensland Civil and Administrative Tribunal Act 2009 ss 100, 102.

Denmac Homes (Qld) Pty Ltd v QBSA [2011] QCAT 331
Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364
McEwen v Barker Builders Pty Ltd [2010] QCAT 49

APPEARANCES:

APPLICANT:

Michael Macdonald

RESPONDENT:

Queensland building and Construction Commission

REPRESENTATIVES:

APPLICANT:

represented by Michael Macdonald

RESPONDENT:

represented by Kristie Joyce, in house Senior Lawyer QBCC

REASONS FOR DECISION

By a decision delivered on the 25^th of November 2016 I made orders allowing an application by Mr Macdonald and ordered the QBCC to pay to him the sum of $7,737.00. I allowed the parties to file any submissions as to costs.
Both parties have filed submissions on costs.
Mr Macdonald contends that he should have costs in the sum of $529.40 being made up of filing fees of $147.50, fees associated with service of the application of $76.90 and further filing fees of $305.00.
In his written submissions Mr Macdonald gives the history associated with the applications filed in QCAT.
After contacting QBCC and through their own internal review Mr Macdonald was informed by QBCC that he should lodge a dispute with QCAT. He did that and QCAT found in his favour. That order was an order against the builder in the sum of $7,737.00 plus costs of $147.50.
After that determination was made on the third of March 2015 Mr Macdonald lodged a complaint form with QBCC seeking reimbursement of the amount ordered by QCAT.
On 13 April 2015 an internal review officer within the QBCC wrote to Mr Macdonald and after advising that his request for a review regarding a ‘declinature’ (sic) of an insurance claim was premature because a decision had not been made, said, ‘once your legal rights have been exhausted you may reapply for reconsideration of insurance entitlement under the Statutory Insurance Scheme’.
On 30 April 2015 Mr Macdonald sought to enforce the amount awarded as a judgement debt in the Holland Park Magistrates Court.
The builder became a bankrupt on the twenty third of July 2015.
On 8 October 2015 an insurance officer within QBCC wholly disallowed an insurance claim by Mr Macdonald with respect to the alleged defective work.
On 13 October 2015 Mr Macdonald made a review application about the decision to disallow the claim.
On 3 February 2016 after a review the QBCC disallowed 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.

Keep reading for free

Create a free CaseChat account to read Macdonald v Queensland Building and Construction Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] QCAT 128
Decision Date: 28 April 2017

CaseChat Overview and Summary

In Macdonald v Queensland Building and Construction Commission, the applicant sought costs from the Queensland Civil and Administrative Tribunal (QCAT) following a successful claim against the Queensland Building and Construction Commission (QBCC). The applicant had brought an action against the QBCC for refusing to pay a claim for rectification work without the Commission's written approval. The central issue before the QCAT was whether the applicant was entitled to costs under the statutory scheme governing QCAT proceedings.

The QCAT examined the statutory provisions governing costs in QCAT proceedings. It noted that section 107 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that the QCAT has discretion to award costs in proceedings. However, the QCAT also considered section 108, which specifies that the QCAT may only award costs where the applicant has substantially succeeded. The court found that while the applicant had substantially succeeded, the statutory provisions did not support an award of costs in this instance. The QCAT concluded that the costs sought by the applicant were not recoverable under the statutory scheme governing QCAT proceedings.

The application for costs was dismissed. The QCAT held that the statutory provisions did not provide a basis for awarding costs in this case. The applicant was not entitled to the costs sought.

Orders

Orders of the court

1. Application for costs 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.