Miles v Queensland Building and Construction Commission - [2025] QCATA 60

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Miles v Queensland Building and Construction Commission [2025] QCATA 60

PARTIES:

SHANE MILES

(applicant/appellant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

APL043-24

ORIGINATING APPLICATION NO/S:

GAR018-22

MATTER TYPE:

Appeals

DELIVERED ON:

26 June 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1. Leave to appeal granted.

2. Appeal dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – Where Tribunal ordered respondent to pay costs on a limited basis – where appellant claims Tribunal erred in deciding interests of justice did not require costs order against respondent – meaning of rule 86 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) did not apply as final decision more favourable to applicant than offer to settle – where offer for parties to consent to Tribunal order setting aside decision was not accepted – where Tribunal required to address whether the Tribunal’s decision was not more favourable to the respondent than the offer to settle – where the offer, if accepted, would not have resolved the matter – where leave to appeal refused

Queensland Civil and Administrative Tribunal Act2009 (Qld), s 3, s 4, s 20, s 23, s 86, s 142
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 86

Victorian Civil and Administrative Tribunal Act1998 (Vic), s 93

AGL Loy Yang Pty Ltd v Department Head, Department of Economic Development, Jobs, Transport and Resources (Red Dot) [2016] VCAT 1249
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
J.Mac Constructions Pty Ltd v Queensland Building and Construction Commission [2019] QCAT 249
John Barr Investments Pty Ltd v Mordialloc Sporting Club Inc & Anor [2022] VSC 100
McGee v Queensland Building and Construction Commission [2018] QCATA 124
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Medical Board of Australia v Martin [2013] QCAT 376
Miles v Queensland Building and Construction Commission (unreported) GAR018-22, 21 December 2023
Muto v Secretary to the Department of Planning and Community Development Pty Ltd [2013] VSCA 85
Owltown Pty Ltd v Norwinn Commercial & Anor [2020] QCATA 145
The Big Apple Group Pty Ltd v Melbourne City Council [2020] VSC 393
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

Van Dorssen & Ors v QBCC [2025] QCAT 69

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

This is an appeal against a costs decision made in a proceeding in the Tribunal’s review jurisdiction.
The respondent made a decision on 20 December 2021 to disallow the applicant’s claim under the Queensland Home Warranty Insurance Scheme (‘the reviewable decision’). The applicant sought a review of the decision (‘the review proceeding’).
The hearing below was listed on…

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: [2025] QCATA 60
Decision Date: 26 June 2025

CaseChat Overview and Summary

Miles v Queensland Building and Construction Commission involved a dispute over a costs order made by the Queensland Civil and Administrative Tribunal (QCAT) against the Queensland Building and Construction Commission (QBCC). The applicant, Miles, sought to challenge the Tribunal’s decision not to award costs against the QBCC. Miles argued that the Tribunal erred in determining that the interests of justice did not require a costs order against the QBCC, and that rule 86 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) did not apply because the final decision was more favourable to the applicant than the offer to settle. The QBCC maintained that the Tribunal’s decision was correct and that the appeal should be dismissed.

The primary legal issue before the court was whether the Tribunal erred in determining that the interests of justice did not require a costs order against the QBCC, and whether rule 86 of the QCAT Rules applied. The court examined the Tribunal’s reasoning and application of statutory provisions, including sections 100 and 102(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and rule 86 of the QCAT Rules. The court also considered the principles articulated in J.Mac Constructions Pty Ltd v Queensland Building and Construction Commission regarding the strong contra-indication against costs orders. Additionally, the court assessed whether the QBCC’s offer to settle aligned with rule 65 of the QCAT Rules and whether the final decision was more favourable to the applicant than the offer.

The court found that the learned member of the Tribunal correctly exercised the discretion under section 102(1) of the QCAT Act and did not consider that the interests of justice required the Tribunal to make an order against the QBCC to pay costs. The court upheld the Tribunal’s reliance on the strong contra-indication against costs orders and noted that Miles had not overcome this barrier. The court further determined that the offer to settle was valid under rule 65 of the QCAT Rules and that the final decision was more favourable to Miles than the offer. Consequently, the court concluded that rule 86 of the QCAT Rules did not apply as the decision was more favourable to the applicant. The court also found that the application of rule 85 of the QCAT Rules was correctly applied, requiring the QBCC to pay the filing fee.

The appeal was dismissed, and leave to appeal was granted. The final orders included dismissing the appeal and granting leave to appeal.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal 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

At the hearing below the respondent argued that the February decision, being infected by jurisdictional error, was not a decision within the meaning of regulation 59, schedule 6 of the Queensland Building and Construction Commission Regulation 2018 (Qld). The learned member found that any error by the respondent was within jurisdiction with the consequence that the decision was validly made. The learned member set aside the subsequent decision and substituted the February decision[9] (‘the primary decision’). The primary decision was not appealed. [9]Miles v Queensland Building and Construction Commission (unreported) GAR018-22, 10 October 2023.The costs decision The learned member:(a)Referred to s 100 and s 102(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’);(b)In exercising the discretion pursuant to s 102(1), did not consider that the interests of justice required the Tribunal to make an order against the respondent to pay all or a stated part of the applicant’s costs having regard to the applicant’s submissions;(c)Having regard to the matters set out in s 102(3) decided that the interests of justice did not require a costs order in favour of the applicant;(d)Relied upon the following passage from J.Mac Constructions Pty Ltd v Queensland Building and Construction Commission:[10]The applicant has not overcome the strong contra-indication against costs orders.(e)Determined that the offer to settle was a written offer in accordance with rule 65 of the QCAT Rules;(f)Determined that the primary decision was more favourable to the applicant than the offer to settle;(g)Determined that rule 86 of the QCAT Rules had no application in the circumstances;(h)Considered the application of rule 85 of the QCAT Rules and ordered the respondent to pay the filing fee on the application. [10][2019] QCAT 249.Consideration Rule 86 of the QCAT rules provides:86 Additional power to award costs if particular offers to settle rejected(1)This rule applies if—(a)a party to a proceeding, other than a proceeding for a minor civil dispute, makes another party to the proceeding a written offer to settle the dispute the subject of the proceeding; and(b)the other party does not accept the offer within the time the offer is open; and(c)in the opinion of the tribunal, the decision of the tribunal in the proceeding is not more favourable to the other party than the offer.(2)The tribunal may award the party who made the offer all reasonable costs incurred by that party in conducting the proceeding after the offer was made.(3)If a proceeding involves more than 2 parties, this rule applies only if the acceptance of the offer would have resulted in the settlement of the matters in dispute between all the parties.(4)In deciding whether a decision is or is not more favourable to a party than an offer, the tribunal must—(a)take into account any costs it would have awarded on the date the offer was given to the other party; and(b)disregard any interest or costs it awarded relating to any period after the date the offer was given to the other party.

Ratio Decidendi

Legal Principle Established

The learned member:(a)Referred to s 100 and s 102(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’);(b)In exercising the discretion pursuant to s 102(1), did not consider that the interests of justice required the Tribunal to make an order against the respondent to pay all or a stated part of the applicant’s costs having regard to the applicant’s submissions;(c)Having regard to the matters set out in s 102(3) decided that the interests of justice did not require a costs order in favour of the applicant;(d)Relied upon the following passage from J.Mac Constructions Pty Ltd v Queensland Building and Construction Commission:[10]The applicant has not overcome the strong contra-indication against costs orders.(e)Determined that the offer to settle was a written offer in accordance with rule 65 of the QCAT Rules;(f)Determined that the primary decision was more favourable to the applicant than the offer to settle;(g)Determined that rule 86 of the QCAT Rules had no application in the circumstances;(h)Considered the application of rule 85 of the QCAT Rules and ordered the respondent to pay the filing fee on the application. [10][2019] QCAT 249.Consideration Rule 86 of the QCAT rules provides:86 Additional power to award costs if particular offers to settle rejected(1)This rule applies if—(a)a party to a proceeding, other than a proceeding for a minor civil dispute, makes another party to the proceeding a written offer to settle the dispute the subject of the proceeding; and(b)the other party does not accept the offer within the time the offer is open; and(c)in the opinion of the tribunal, the decision of the tribunal in the proceeding is not more favourable to the other party than the offer.(2)The tribunal may award the party who made the offer all reasonable costs incurred by that party in conducting the proceeding after the offer was made.(3)If a proceeding involves more than 2 parties, this rule applies only if the acceptance of the offer would have resulted in the settlement of the matters in dispute between all the parties.(4)In deciding whether a decision is or is not more favourable to a party than an offer, the tribunal must—(a)take into account any costs it would have awarded on the date the offer was given to the other party; and(b)disregard any interest or costs it awarded relating to any period after the date the offer was given to the other party. As a matter of statutory construction, the following is apparent: the reference in rule 86(1) to ‘a party’ is a reference to the offeror and the reference in rule 86(1) to ‘another party’ is a reference to the offeree. It then follows, as a matter of construction, that rule 86(1)(c) refers to a final decision that is not more favourable to the offeree (that is, the recipient of the offer) than the offer to settle. In the reasons for the costs order, the learned member stated:The offer was to set aside the decision made by the respondent on 20 December 2021. The decision made on 28 September 2023 was to set aside the decision made on 20 December 2021, including the decision which was reviewed on 5 October 2021, and to substitute with its own decision, being the decision of 22 February 2021, continuing in effect. Rule 86 does not therefore apply, as in the opinion of the Tribunal, the decision in the proceeding on 28 September 2023 is more favourable to the applicant than the offer made on 4 September 2023.[11] [11]Transcript of reasons for decision, T1-6, lines 36-42.