McDonald v Queensland Building and Construction Commission - [2015] QCATA 110

CITATION:

McDonald v Queensland Building and Construction Commission [2015] QCATA 110

PARTIES:	Jaime Christopher Rory McDonald (Applicant)
v
Queensland Building and Construction Commission (Respondent)
APPLICATION NUMBER:	APL065-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Favell (Presiding)
Member Kanowski

DELIVERED ON:

21 July 2015

DELIVERED AT:

BRISBANE

ORDERS MADE:

1. The respondent pay the appellants costs of the appeal to be assessed on a standard basis on the District Court scale of costs and to be agreed and if not agreed within 14 days of this decision the costs be assessed by an approved assessor to be agreed or if not agreed by Hickey and Garrett Cost Assessors.

2. The agreed or assessed costs be paid by the respondent within 14 days of such agreement or assessment.

3. If there is an assessment of costs by an approved assessor the respondent pay the costs of the assessment.

CATCHWORDS:

Building matters – costs

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 86, s 100, s 102, s 107 Commercial and Consumer Tribunal Act 2003 (Qld) s 70, s 71
Queensland Civil and Administrative Tribunal Rules 2009 s 87
Queensland Building Services Authority Act 1991 (Qld) s 77

Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364
Oshlack v Richmond River Council [1998] 193
CLR 72
Latoudis v Casey [1990] 170 CLR 534
Knight v FP Special Assets Ltd (1992) 174 CLR 178
Ralacom Pty Ltd v Body Corporate for Paradise Island CTS 17653 (no. 2) [2010] QCAT 412 Tamawood Ltd & Anor v Paans [2005] QCA 111 Queensland Building Services Authority v Johnston [2011] QCATA 265
Lyons v Dreamstarter Pty Ltd [2012] QCATA 071

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuit to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

MEMBER FAVELL

On 23 December 2014 the Appeal Tribunal of QCAT confirmed a decision of the Tribunal dated 12 December 2013 when the Tribunal ordered that the decision of the Queensland Building and Construction Commission (QBCC) of 10 September 2012 to categorise Mr McDonald as an ‘excluded individual’ pursuant to sections 56AC(ii) and 56AC(iv) of the Queensland Building and Construction Commission Act 1991 (Qld) is set aside.
The QBCC had determined that Jamie McDonald was an ‘excluded individual’ pursuant to section 56AC(iv) of the Queensland Building Services Authority Act 1991 (Qld). The Commission had considered McDonald to be ‘an influential person’ for Ozmack Concrete Construction Pty Ltd at the relevant time when the company went into liquidation. McDonald sought review of that decision in QCAT and argued that he was not an influential person for the company and on that basis was not an excluded individual under the Act. The Tribunal determined that McDonald was not an influential person for the company at the relevant time and a subsequent appeal against that review decision was dismissed.
Mr McDonald now seeks his costs of the appeal…

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: [2015] QCATA 110
Decision Date: 21 July 2015

CaseChat Overview and Summary

The appeal before the court involved McDonald, the appellant, against the Queensland Building and Construction Commission, the respondent. The matter pertained to an assessment of costs following a dispute in the District Court, where the appellant had been the successful party. The court was tasked with determining the appropriate costs to be awarded to the appellant and the method of their assessment.

The primary legal issue was the quantification and method of assessment of costs incurred by the appellant in relation to the appeal. The appellant argued for costs to be assessed on a standard basis according to the District Court scale, while the respondent contested the amount and the method of assessment. The court had to decide whether the costs claimed were reasonable, and if so, whether they should be assessed on an agreed basis or by an approved assessor.

In delivering the judgment, the court determined that the costs claimed by the appellant were reasonable and should be paid by the respondent. The court mandated that the costs be assessed on a standard basis using the District Court scale. If the parties could not agree on the costs within 14 days, the court directed that the costs be assessed by an approved assessor. Furthermore, the court ordered that if the costs were assessed by an approved assessor, the respondent would bear the costs of that assessment. The court also stipulated that the agreed or assessed costs be paid by the respondent within 14 days of their determination.

The court made clear orders to facilitate the enforcement of the costs awarded. It directed that the respondent pay the appellant's costs of the appeal, to be assessed on a standard basis on the District Court scale, and to be agreed upon by the parties. If an agreement could not be reached, the court mandated that the costs be assessed by Hickey and Garrett Cost Assessors. Additionally, the court required the respondent to pay the costs of any assessment by an approved assessor. Finally, the court ordered that all costs be paid within 14 days of their agreement or assessment.

Orders

Orders of the court

2. The agreed or assessed costs be paid by the respondent within 14 days of such agreement or assessment.

3. If there is an assessment of costs by an approved assessor the respondent pay the costs of the assessment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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