Manwin v Queensland Building Services Authority
[2011] QCAT 269
•16 June 2011
| CITATION: | Manwin v Queensland Building Services Authority [2011] QCAT 269 |
| PARTIES: | Mr Atanas Vass Manwin |
| v | |
| Queensland Building Services Authority |
| APPLICATION NUMBER: | QR030-08 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers – Amendment to paragraph 22 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Elena Marchetti, Member |
| DELIVERED ON: | 16 June 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | That the applicant pay the respondent:
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| CATCHWORDS: | Costs – where offer to settle – section 142 CCT Act – offer rejected – final decision not more favourable to applicant than offer – costs awarded on an indemnity basis from date of offer – costs awarded on a standard basis from commencement of proceeding to date of offer according to section 71 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 – AMENDED
Background
[1] This application for costs is in relation to a matter, which has been ongoing for some time. It relates to work undertaken by the applicant at 18 Endeavour Street, Capalaba, to waterproof the basement of the house. As a result of the applicant filing in the former Commercial and Consumer Tribunal an Application to Review a direction of the respondent Authority requiring the applicant to rectify certain building work, Member Lohrisch found on 27 September 2007 that there was significant defective work that needed rectification by the applicant. However, he ordered that the respondent’s Direction to Rectify dated 19 April 2006 be set aside since it was too wide and a new Direction be issued which simply directed the applicant to rectify the defective workmanship.
[2] The respondent issued a new Direction to Rectify. The applicant then filed another Application to Review in relation to the new Direction to Rectify. The respondent applied to have the Application dismissed or in the alternative, that Directions be issued confirming that the new Direction to Rectify properly reflected the Orders made by Member Lohrisch on 27 September 2007. On 13 March 2009 Member Lohrisch dismissed the applicant’s Application for Review in accordance with the respondent’s submissions, noting that the review proceedings were ‘in terms of section 126 of the CCT Act, vexatious and an abuse of process’.[1] He did not make any orders in relation to costs, despite the respondent requesting that such orders be made.
[1] Manwin v Queensland Building Services Authority [2009] CCT QR030-08, p15.
[3] The applicant lodged an appeal to the District Court. The issue of costs was therefore delayed until after the District Court made its determination. The District Court struck out the appeal and Directions were issued by this Tribunal on 30 November 2010 requiring the applicant to file in the Tribunal and serve on the respondent any submissions in relation to the respondent’s application for costs by 4:00pm 14 January 2011 and directing that the application for costs would be determined on the papers.
[4] The applicant has not filed any submissions in relation to costs.
[5] This decision, therefore, relates to the respondent’s request for the following costs:
a) That the applicant pay the respondent’s costs on an indemnity basis;
b)That the applicant pay the respondent’s costs as and from 16 October, 2008 on an indemnity basis and prior to 16 October 2008 on a standard basis.
[6] In applying for costs the respondent submits that any determination should be made pursuant to the Commercial and Consumer Tribunal Act (“CCT Act”) and not pursuant to section 102 of the Queensland Civil and Administrative Act (“QCAT Act”).
Jurisdiction of the Tribunal in Relation to Indemnity Costs
[7] Sections 271(1) and (2) of the QCAT Act state that QCAT ‘must’ deal with matters under the QCAT Act or an enabling Act and that in doing so:
a)QCAT has, and only has, the functions that the former entity had in relation to the matter under the former Act, and
b)QCAT can, and can only, make a decision the former entity could have made in relation to the matter under the former Act.
[8] According to section 106 of the QCAT Act the Tribunal may award costs ‘at any stage of a proceeding or after the proceeding has ended’. Having said that, the starting point for any determination as to the award of costs is that each party pay their own costs for the proceedings (section 100 of the QCAT Act, which was also reflected in section 70 of the CCT Act).
[9] There are two avenues by which a party to a proceeding initiated in the former Commercial and Consumer Tribunal may have costs awarded in their favour. One is as a result of an offer to settle, which the other party rejects, and the other is according to section 71(4) of the CCT Act. I will deal with the former avenue first.
[10] Sections 142(1) and (2) of the CCT Act states that, if:
(1)… (a) A party to a proceeding serves another party to the proceeding with a written offer to settle the matters in dispute between the parties; and
(b) The other party does not accept the offer within the time is open; and
(c) The offer complies with this division; and
(d) In the opinion of the tribunal, the decision of the tribunal on the matters in dispute is not more favourable to the other party than the offer.
(2) The Tribunal must award the party who made the offer all reasonable costs incurred by that party in conducting the proceeding after the offer was made.
[11] Division 7 of Part 7 of the CCT Act sets out the requirements for making a settlement offer. Section 138(2) states that the offer must be made by signed writing and must be served on the party to whom the offer relates.
[12] On 16 October 2008 the respondent sent correspondence to the applicant offering to settle the matter on the basis that the applicant withdraws the Application to Review and that each party bear their own costs. The offer to settle was made within the terms of section 140(2) of the CCT Act, which requires the offer remain open for at least 14 days from the date of service of the offer.
[13] The offer to settle was not accepted by the applicant.
[14] I am satisfied that the respondent’s offer complied with Division 7 of Part 7 of the CCT Act. I also accept the respondent’s submissions that Member Lohrisch’s decision on 13 March 2009 to dismiss the Application to Review as a whole was not more favourable to the applicant than the offer. I am therefore required to award the respondent all reasonable costs incurred in conducting the proceeding after 16 October 2008.
[15] According to Member Lohrisch in Marshall, K.H. & Ken & Daryl Marshall Pty Ltd v Seckhold, D.G. & G. [2005] QCCTR 60 an order for ‘reasonable costs’ pursuant to section 142(2) of the CCT Act is akin to an order for costs to be awarded on an indemnity basis.
[16] I therefore order that the applicant pay the respondent’s costs of and incidental to the proceedings from 16 October 2008 on an indemnity basis.
Costs from the commencement of the proceedings to 16 October 2008
[17] Under the current QCAT Act and the former CCT Act there is provision for the award of costs against a party under certain circumstances. In this particular case it is appropriate to apply the provisions of the CCT Act, in particular section 71(4), which states:
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.
[18] The respondent has provided submissions, which point to the following facts as support for its claim for costs:
a)the outcome of the proceedings was entirely in the respondent’s favour;
b)the conduct of the applicant was inappropriate because he engaged in an abuse of process and he had failed to comply with the directions of the Tribunal;
c)the complexity of the matter justified the engagement of legal representatives, and as a result of the respondent’s success, the interests of justice warrant a costs order being made in the respondent’s favour.
[19] I accept that the outcome of the proceeding was entirely in the respondent’s favour and that the applicant’s attempts to re-litigate previously decided issues amounted to an abuse of process.
[20] I also accept that according to the propositions outlined in the decision of Keane JA in Tamawood v Paans [2005] 2 Qd R 101 at [30], the complexity of the matter justified the obtaining of legal representation and that this would be ‘a sufficient basis to conclude that the interests of justice warranted the exercise of the discretion to award costs in favour of the successful party, at least in the absence of any countervailing consideration’.
[21] In my view, there are no countervailing considerations, which would justify not awarding costs in this matter.
[22] Accordingly, I order that the applicant pay the respondent’s costs of and incidental to the proceeding from the commencement of the proceeding to 16 October 2008 on a standard basis.
Orders
[23] That the applicant pay the respondent:
a)The respondent’s costs of and incidental to the proceeding up to 16 October 2008 on a standard basis in accordance with the District Court Scale of Costs.
b)The respondent’s costs of and incidental to the proceeding from 16 October 2008 on an indemnity basis.
c)If within fourteen (14) days the amount of the respondent’s costs payable under (a) and (b) above is not agreed between the applicant and the respondents, then the costs are to be assessed by Hickey & Garrett, Legal Costs Assessors, Level 21, 141 Queen Street, Brisbane.
d)The applicant is to pay the respondent’s costs (as agreed or assessed) within fourteen (14) days of such agreement or assessment.
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