McNab Constructions Australia Pty Ltd v Queensland Building Services Authority
[2013] QCAT 749
•20 August 2013
| CITATION: | McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2013] QCAT 749 |
| PARTIES: | McNab Constructions Australia Pty Ltd (Applicant) |
| v | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | QR197-07; QR023-08; QR024-08 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Sandra G Deane, Member |
| DELIVERED ON: | 20 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Advance Traders Pty Ltd’s application dated 17 January 2013 is dismissed; 2. McNab Constructions Australia Pty Ltd is to pay Building Solutions Pty Ltd’s costs of and incidental to the joinder application filed 20 September 2012 on the standard basis of assessment on the District Court Scale of Costs; 3. Building Solutions Pty Ltd is to file in the Tribunal and serve upon McNab Constructions Australia Pty Ltd a short form costs assessment prepared by a registered costs assessor by 4.00pm 3 September 2013; 4. McNab Constructions Australia Pty Ltd is to file in the Tribunal and serve upon Building Solutions Pty Ltd any submissions in response by 4.00pm 10 September 2013; 5. The Tribunal will fix Building Solutions Pty Ltd’s costs without an oral hearing not before 10 September 2013; 6. McNab Constructions Australia Pty Ltd is to pay Thomson Kane Hydraulic Engineering Consultants Pty Ltd’s costs of and incidental to the joinder application filed 20 September 2012 fixed in the sum of $3,183.57 by 4.00pm 3 September 2013; 7. McNab Constructions Australia Pty Ltd is to pay: a. Donovan Hill & Associates Pty Ltd’s costs of and incidental to the joinder application filed 20 September 2012 on the standard basis of assessment on the District Court Scale of Costs up to and including 16 October 2012; and b. all Donovan Hill & Associates Pty Ltd’s reasonable costs (being actual costs incurred providing the costs are reasonably incurred and of a reasonable amount) of and incidental to the joinder application filed 20 September 2012 from 16 October 2012. 8. Donovan Hill & Associates Pty Ltd is to file in the Tribunal and serve upon McNab Constructions Australia Pty Ltd a short form costs assessment prepared by a registered costs assessor by 4.00pm 3 September 2013; 9. McNab Constructions Australia Pty Ltd is to file in the Tribunal and serve upon Donovan Hill & Associates Pty Ltd any submissions in response by 4.00pm 10 September 2013; 10. The Tribunal will fix Donovan Hill & Associates Pty Ltd’s costs without an oral hearing not before 10 September 2013. |
| CATCHWORDS: | APPLICATIONS FOR COSTS – application for leave to make further submissions – whether the Tribunal has power to award costs to proposed parties who successfully resisted a joinder application Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3(b), 28, 36, 39, 40, 42, 48, 100, 102, 105, 107, Schedule 3 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 Jones v Milward [2005] QCA 76 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
McNab Constructions Australia unsuccessfully applied to join multiple parties to its review proceedings. In conjunction with dismissing the joinder application I made directions in respect of applications for costs by the QBSA or any proposed party.[1] McNab Constructions Australia applied for leave to appeal or appeal against the decision to refuse joinder.[2] The QBSA and 4 of the proposed parties applied for costs orders.[3] McNab Constructions Australia filed submissions opposing the making of costs orders.[4]
[1]Decision dated 13 December 2012.
[2]10 January 2013.
[3]Advance Traders Pty Ltd application dated 17 January 2013; Building Solutions Pty Ltd application dated 16 January 2013; Donovan Hill & Associates Pty Ltd application dated 18 January 2013; Thomson Kane Hydraulic Engineering Consultants Pty Ltd application dated 17 January 2013.
[4]15 February 2013.
The applications for costs were ordered to be determined after determination of the application for leave to appeal or appeal.[5] On 3 April 2013 consent orders were made:
a) giving leave for the application for leave to appeal or appeal to be withdrawn;
b) giving leave for the applications for review to be withdrawn;
c) ordering McNab Constructions Australia and the QBSA to bear their own costs of the review proceedings and the appeal.
[5]Senior Member Oliver dated 12 February 2013.
Accordingly the QBSA’s application for costs[6] has been determined.
[6]Submissions received 17 January 2013.
On 29 April 2013 McNab Constructions Australia filed an application for miscellaneous matters seeking leave to make further submissions because since filing its original submissions it contends circumstances have changed. The submissions in the miscellaneous matters application are stated to be the submissions it seeks leave to make in relation to the applications for costs.
Upon receipt of this miscellaneous matters application I made directions[7]:
a) affording the QBSA and the proposed parties the opportunity to make submissions in reply to the application for leave and any further submissions in relation to the issue of costs upon which they wish to rely; and
b) affording McNab Constructions Australia an opportunity to respond.
[7]30 April 2013.
Donovan Hill objected to giving leave to McNab Constructions Australia to make further submissions in relation to its application for costs and requested leave to file further submissions in reply if the application for miscellaneous matters is allowed. No other submissions were received in relation to this application for leave to make further submissions.
The 30 April 2013 directions are in a form analogous to those commonly made by the Tribunal in applications for leave to appeal or appeal to permit both the application for leave to appeal to be determined and if leave is granted to then determine the appeal without the need to make further directions for submissions. This is consistent with the Tribunal’s objects[8] and does not constitute a predetermination of the application for leave.
[8]QCAT Act s 3(b).
The Tribunal may inform itself in any way it considers appropriate, must act with little formality and technicality and must ensure so far as practicable that all relevant material is disclosed to it.[9]
[9]Ibid s 28(3)(c), (d) and (e).
There are matters raised in the further submissions which are relevant to my determination of some of the applications for costs and there are matters raised which may be relevant to my determination of the other applications for costs. In those circumstances I allow the application for leave and will consider the submissions in relation to the applications for costs. Donovan Hill was afforded an opportunity to make submissions. I do not propose to further delay the determination of the costs applications by making further directions for submissions.
Costs Application – Advance Traders
McNab Constructions Australia’s further submissions demonstrate to my satisfaction that Advance Traders has compromised its right to seek an order for costs in this Tribunal. Accordingly its application is dismissed.
Power to award costs
The QCAT Act provides ‘Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceedings.’[10] It is well settled in the Tribunal that the principle that costs follow the event is displaced by section 100.
[10]Ibid s 100.
Building Solutions submits that the Tribunal has power to award costs under the enabling Act. The Queensland Building Services Act 1991 (Qld) (QBSA Act) is the relevant enabling Act. Section 77(2)(h) of the QBSA Act grants to the Tribunal a power to award costs in relation to the Tribunal’s power to resolve disputes. The Appeal Tribunal has previously found that this discretion is a broader discretion to award costs than the one found in the QCAT Act.[11]
[11]Lyons v Dreamstarter Pty Ltd [2011] QCATA 142.
Section 77 of the QBSA Act relates to building disputes. The definition of building dispute[12] does not include a reference to proceedings for review. The Tribunal’s powers in relation to reviews are set out in sections 86 and 87 of the QBSA Act. These provisions do not include a provision in relation to the award of costs.
[12]QBSA Act Schedule 2.
In these circumstances I find that the enabling Act does not otherwise provide[13] and therefore the application for costs is to be determined under the QCAT Act.
[13]QCAT Act s 100.
The starting point may be displaced if the Tribunal considers it is in the interests of justice to do so. The President has previously accepted that the phrase confers a broad discretion.[14] It is necessary to consider the matters referred to in section 102(3) of the QCAT Act, to the extent they are relevant to a particular case, to determine if the interests of justice point so compellingly to a costs award to overcome the starting position that each party bear their own costs.
[14]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412.
If an order is made the Tribunal should fix the costs if possible.[15]
[15]QCAT Act s 107.
Power to award costs to proposed parties
I am satisfied that each of the proposed parties was a party to the joinder application proceeding before the Tribunal, being a proceeding within a proceeding and that the Tribunal has power to award costs in their favour.
McNab Constructions Australia contends that:
a) it is to be inferred from a decision of the Appeal Tribunal[16] to refuse Donovan Hill leave to make submissions and appear at the hearing of the appeal that Donovan Hill is not a party within the meaning of section 40 of the QCAT Act;
b) the Appeal Tribunal’s decision is binding upon me and obliges me to proceed on the basis that Donovan Hill, Building Solutions and Thomson Kane are not parties as defined by the QCAT Act;
c) the Tribunal therefore has no powers to make costs orders in favour of the successful proposed parties on the grounds that they are not parties to the proceeding.
[16]APL019-13 Decision dated 12 March 2013.
No reasons for the Appeal Tribunal’s decision were given. In the absence of published reasons I am not persuaded that I am bound by the inference sought to be drawn.
If the joinder application had succeeded Donovan Hill, Building Solutions and Thomson Kane would be parties to a proceeding in the tribunal’s review jurisdiction.[17]
[17]QCAT Act s 40(1)(d).
The Tribunal is a creature of statute and unlike some Courts has no inherent jurisdiction. Its powers must be found in the QCAT Act or an enabling Act.
Building Solutions effectively contends that because my decision dismissing the joinder application made directions allowing for applications for costs to be made the Tribunal must have power. Some of the proposed parties, including Building Solutions, sought orders for costs at the joinder hearing. The making of directions simply affords the opportunity to persuade the Tribunal that orders should be made. No presumption as to power or entitlement is to be inferred simply in the making of directions.
McNab Constructions Australia contends that the Tribunal’s power is limited to a power to award costs to a “party” and that as the proposed parties were not joined there is no power.
The term “party” is not separately defined in the QCAT Act although section 39 sets out a list of persons regarded as a “party to a proceeding in the tribunal’s original jurisdiction” and section 40 sets out a similar but different list of persons regarded as a “party to a proceeding in the tribunal’s review jurisdiction”.
The definition of proceeding is quite broad and somewhat circular “generally means a proceeding before the tribunal”.[18] The term proceeding is also broadly defined in the Acts Interpretation Act 1954 (Qld)[19] to mean “a legal or other action or proceeding”.
[18]Ibid Schedule 3.
[19]Ibid s 36.
The filing of the application for miscellaneous matter seeking orders to join the proposed parties is effectively the start of proceedings against those proposed parties.[20] The Tribunal directed that McNab Constructions Australia give notice of the miscellaneous matters application to the proposed parties and afforded them the opportunity to make submissions as they were persons in relation to whom a decision of the tribunal was sought by McNab Constructions Australia.[21] In considering the joinder application the Tribunal was exercising its original procedural jurisdiction conferred by section 42 of the QCAT Act as to whether joinder should be permitted and was not at that time exercising its review jurisdiction.
[20]Ibid s 36.
[21]Ibid s 39(b).
Whether a party is acting in a way that unnecessarily disadvantages another party[22]
[22]Ibid ss 48(1)(a)-(g), 102(3)(a).
I am not satisfied that this is a factor in favour of an award of costs.
Donovan Hill contends that McNab Constructions Australia delivered voluminous material, much of it irrelevant to the application generally and irrelevant specifically to the position of Donovan Hill so that the task of responding was more onerous and resulted in the incurring of higher legal fees.
Building Solutions contends that the delay in bringing of the joinder application in circumstances where McNab Constructions Australia had not put it on earlier notice was unreasonable. It also relies upon the voluminous material delivered to it a short time before the hearing.
Thomson Kane also refers to McNab Constructions Australia not having put it on prior notice.
The Tribunal has been unable to locate any decided cases which support the proposition that the disadvantage referred to in section 48 of the QCAT Act which may found an award of costs relates to conduct prior to the proceedings having been commenced.
The Tribunal has previously found in Robertson and Robertson v Airstrike Industrial Pty Ltd[23] that:
All of the examples of causing unnecessary disadvantage referred to in section 48(1), are things that may occur during the conduct of a proceeding. The matters to be taken into account under section 48(3) support this interpretation. As a matter of statutory construction, it is clear that section 48 applies in respect of causing unnecessary disadvantage in the course of conducting proceedings before the tribunal. Accordingly, the submissions of both parties which relate to matters occurring prior to the commencement of the proceedings, including any alleged delay in making the claim, are irrelevant and are not considered further.
[23][2011] QCAT 120.
In these circumstances I am not satisfied that delay in bringing the joinder proceedings or failure to put proposed parties on prior notice can found a claim for costs under section 48 of the QCAT Act.
I am also not satisfied that the delivery of voluminous material constitutes acting in a way that unnecessarily disadvantaged another party.
A matter which must be established is whether any disadvantage was ‘unnecessary’ as distinct from a disadvantage experienced in the usual course of a dispute proceeding. The matters complained of are in the nature of a disadvantage experienced in the usual course of a complex multi-party dispute proceeding.
The nature and complexity of the dispute[24]
[24]QCAT Act s 102(3)(b).
This is a factor in favour of an award of costs.
The hearing of the joinder application was conducted over a full day and lengthy written submissions had previously been filed.
The mere fact that parties were legally represented is not of itself determinative of whether the matter was complex nor is it determinative of whether costs ought to be awarded.
However in this case the application involved quite complex issues of law and fact.
Relative Strengths of the claims[25]
[25]Ibid s 102(3)(c).
This is a factor in favour of an award of costs.
The proposed parties had strong grounds for resisting the joinder order.
A claim is not vexatious simply because it is not a strong case or the claim wholly fails[26].
Whether the applicant was afforded natural justice/whether the applicant genuinely attempted to enable and help the decision-maker to make the decision[27]
[26]Civic Steel Homes v Mitra [2006] QDC 322; Leo v Paulsen [2010] QCAT 122.
[27]QCAT Act s 102(3)(d).
This is not a relevant consideration in relation to the proposed parties.
The financial circumstances of the parties[28]
[28]Ibid s 102(3)(e).
Building Solutions submitted that it has limited profit margins and ability to grow margins or profits and no capacity to engage in lengthy litigation as compared to McNab Constructions Australia, which it contends is a substantial company. Building Solutions referred the Tribunal to information about the value of projects listed on McNab Constructions Australia’s website. It also refers to its ability to sustain prolonged litigation.
Thompson Kane made no submission in relation this factor other than it chose not to be legally represented at the hearing but filed written submissions to limit costs incurred.
Donovan Hill and McNab Constructions Australia made no submissions in relation to this factor.
I accept the submissions of Building Solutions in the absence of contrary submissions by McNab Constructions Australia. This is a factor in favour of an award of costs in favour of Building Solutions and a neutral factor in respect of Donovan Hill and Thompson Kane.
Anything else that the Tribunal considers relevant[29]
[29]Ibid s 102(3)(f).
McNab Constructions Australia contends they ought not be required to pay costs to the proposed parties because:
a) the proposed parties were not required to make submissions and incur costs;
b) they could have awaited the outcome of the joinder application and if joined then applied to be removed from the proceeding;
c) it was the proposed parties’ decision to incur such costs.
The Tribunal made directions to facilitate the proposed parties making submissions. If they had awaited the outcome of the joinder application as contended for by McNab Constructions Australia they may have been prejudiced by not making submissions when afforded an opportunity.
I do not accept that it was unreasonable for the proposed parties to engage in the joinder proceedings when they were parties against whom orders were effectively being sought. This is not a factor against the award of costs.
The proposed parties were successful in resisting the joinder. This is a factor in favour of an award of costs but not in itself sufficient.
Donovan Hill contends that the settlement offer made on 16 October 2012, to walk away bearing its own costs in return for McNab Constructions Australia withdrawing the joinder application against it:
a) enlivens the Tribunal’s power to make a costs order under Rule 86 of the Queensland Civil and Administrative Tribunal Rules 2009[30]; or
b) is a relevant matter for the purposes of section 102(3)(f).
[30]Ibid s 105.
McNab Constructions Australia contends that it is of no account as the offer did not involve an element of compromise or alternatively that whether there was any compromise cannot be assessed. It relies upon Jones v Milward[31]. Holmes J (as she then was) and with whom the other members of the Court of Appeal agreed accepted that a ‘proposal which demands nothing less than all the relief sought in the claim plus costs is not in truth an offer to settle’.[32] The Court also recognised that if the plaintiff had made some concession on costs that it would amount to a compromise.
[31][2005] QCA 76.
[32]at 7.
I accept that Rule 86 grants an additional power (other than that found in section 102) to award all reasonable costs incurred after the offer was made. I also find that the settlement offer is a relevant matter to be considered in the exercise of my discretion.
I find that the Donovan Hill offer involved a compromise in that Donovan Hill offered to bear its own costs. Given that the hearing was held on 19 October 2012 I am satisfied that costs would have been incurred by Donovan Hill in responding to the joinder proceeding by 16 October 2012 or at the very least by 4pm 18 October, 2012, being the time the offer was stated to be open for acceptance. The offer included a compromise of its ability to seek an order for costs as it is now doing.
Donovan Hill offered to settle the joinder application dispute, the offer was not accepted and the decision to refuse joinder was not more favourable to McNab Constructions Australia than the offer.
Costs Application – Building Solutions
Having regard to the section 102 factors most of which are in favour of an award of costs I find that the interests of justice do favour an award of costs to Building Solutions.
Building Solutions sought an order that its costs be fixed in the sum of $12,500[33] or alternatively that directions be made to facilitate the fixing of costs including that a short form assessment on the District Court scale be prepared.
[33]QCAT Act s 107.
Building Solutions provided some evidence of actual costs incurred. McNab Constructions Australia provided some evidence[34] from a costs assessor which casts some doubt on the appropriateness of some of the amounts claimed.
[34]Exhibit LCO 51 to the Affidavit of Alexander Charles Orange sworn 15 February 2013.
It is appropriate to make directions to facilitate the fixing of costs.
McNab Constructions Australia contends that the Magistrates Court Scale for matters under $250,000 is the appropriate scale.
The Tribunal has previously accepted in many matters that the District Court Scale of costs is appropriate. Given the level of complexity of the application for joinder I find that the District Court Scale of costs is appropriate.
Costs Application – Thomson Kane
Having regard to the section 102 factors most of which are in favour of an award of costs I find that the interests of justice do favour an award of costs to Thompson Kane.
Thomson Kane sought an order that its costs be fixed in the sum of $3,428.57.
In support of its application Thomson Kane have submitted a certificate of assessment of its costs by a costs assessor adopting the District Court scale of costs. This amount includes a fee of $245 for the preparation of the assessment, which relates to Thomson Kane’s attempts to quantify the costs.
McNab Constructions Australia provided some evidence[35] from a costs assessor which casts some doubt on the appropriateness of some of the amounts claimed and which contends that on a formal assessment costs would likely be assessed in the range $2,000 - $2,500. Mr Bloom has not had the benefit of reviewing the file whereas Mr Graham states that he has done so. In those circumstances I generally prefer Mr Graham’s assessment.
[35]Exhibit LCO 52 to the Affidavit of Alexander Charles Orange sworn 15 February 2013.
I fix Thomson Kane’s costs at $3,183.57.
Costs Application – Donovan Hill
I find that the requirements of Rule 86 have been satisfied and that it is appropriate to award all reasonable costs incurred after the offer was made.
Having regard to the section 102 factors most of which are in favour of an award of costs I also find that the interests of justice favour an award of costs to Donovan Hill.
Donovan Hill sought an order that its costs be fixed in the sum of $28,915.10 or alternatively in an amount to be agreed or as assessed on the Supreme Court scale.
Donovan Hill provided some evidence of an assessment of costs on the Supreme Court Scale of costs. McNab Constructions Australia provided some evidence[36] from a costs assessor which casts some doubt on the appropriateness of some of the amounts claimed.
[36]Exhibit LCO 50 to the Affidavit of Alexander Charles Orange sworn 15 February 2013.
It is appropriate to make directions to facilitate the fixing of costs.
For the reasons set out earlier I find that the District Court Scale of costs is appropriate.
5
4
0