Naylor v Queensland Building Services Authority

[2012] QCAT 77

CITATION: Naylor and Anor v Queensland Building Services Authority [2012] QCAT 77

PARTIES:	Mr Naylor Ms Hopper
v
Queensland Building Services Authority

APPLICATION NUMBER: QR156-08

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Kate Buxton, Member

DELIVERED ON: 24 February 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1.  The application for the BSA to pay the applicants’ costs and outlays is refused.

CATCHWORDS: Costs – Building disputes – whether the usual order is that parties must bear their own costs – wherein enabling Act otherwise provides – exercise of general discretion to award costs

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

1. This application was submitted to the Commercial and Consumer Tribunal (“CCT”) on 26 June 2008.  It has proceeded through both the CCT and subsequently QCAT for a not inconsiderable period of time.  The matter has been scheduled for various processes including directions hearings, alternative dispute resolution and a hearing.  However, the parties did not ultimately proceed to an adjudication before QCAT.  Instead, the parties reached a negotiated resolution of the application for review. 

2. The applicants now seek an order that the respondent, the Queensland Building Services Authority (“BSA”) pay their costs in the sum of $8,688 broken down as follows:

   §    Application fee   $250

   §    Solicitors fees (total)                 $835

   §    Engineers fees     $400

   §    Davidson and Wright               $7,203

   §    Total  $8,688

3. The applicants’ submissions on costs, filed on 10 March 2011, set out the various ways in which the matters giving rise to this application have caused them expense and hardship.  The BSA submits that the application for costs should be refused.

Applicable law

1. As this was a “pending proceeding” when QCAT commenced operations in December 2009[1], QCAT is to deal with the matter the subject of the existing proceeding under the enabling Act and has the powers of the former CCT to award costs.[2]  These are set out in sections 70 and 71 of the CCT Act.

   [1] Sections 245 and 256 Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

   [2] Section 271 QCAT Act.

2. The Queensland Building Services Authority Act 1991 (“QBSA Act”) also contains a power to award costs. The proper construction of that power is to displace the general power to award costs in the CCT Act in favour of the express power in the enabling Act.[3] The power to award costs in this instance is, therefore, the broad power set out in section 77(1)(h) QBSA Act which provides that the Tribunal “may” award costs.

   [3]        Lyons v Dreamstarters [2001] QCATA 142 [34].

3. In Lyons v Dreamstarters [2011] QCATA 142 her Honour Judge Kingham, in considering that provision stated:

   “[32] Section 77 of the QBSA Act confers jurisdiction on the Tribunal to determine building disputes such as the one brought by Dreamstarters. Section 77(1)(h) provides that, in such proceedings, the Tribunal may award costs.  The section does not provide further guidance or prescription about the occasions for or conditions of exercise of that power.

   [33]A jurisdiction given in general terms allows the Tribunal to make an order as to costs that is justified in the circumstances.[4]  It is a broad general discretion which must be exercised judicially, not upon irrelevant or extraneous considerations but upon facts connected with or leading up to the litigation.[5]”

   [4]        Oshlak v Richmond River Council (1998) 193 CLR 72 at 88.

   [5]        Latoudis v Casey (1990) 170 CLR 534 at 557.

Exercise of discretion

1. In exercising the broad discretion whether to award costs this Tribunal may take into account all of the relevant circumstances of the case.  Here, the matter has taken many years to reach a conclusion.  The applicants submit that the matter would not have reached a conclusion but for engaging the engineers whose costs they now seek to recover.  However, this Tribunal was not ultimately asked to make a determination in their favour.  Instead, they were able to negotiate a resolution that was acceptable to them and, ultimately, with the cooperation of the BSA.

2. In circumstances where this Tribunal has not made a finding in favour of a party, and the party, in reaching a negotiated resolution of the matters giving rise to the claim, has not reached a negotiated resolution in relation to its costs or outlays, this Tribunal is reluctant to interfere further and make a finding in favour of one party on the issue of the payment of those outlays.  To do so would require a similar factual enquiry as the determination of the central issues between the parties themselves.  It is open to parties who negotiate outcomes in relation to review applications to also negotiate the terms of those outcomes.  In circumstances where the parties have not negotiated those terms here, there is nothing in the interests of justice or relevant to the circumstances of this particular case that point in favour of the award of costs in favour of either party. 

3. This decision is consistent with the guidance given by her Honour Judge Kingham in Lyons v Dreamstarters Pty Ltd (supra) and is consistent with the justice of the particular case.

4. The application for the BSA to pay the applicants’ costs and outlays is therefore refused.