Perkins v Queensland Building and Construction Commission - [2018] QCAT 15

CITATION:

Perkins & Anor v Queensland Building and Construction Commission & Anor [2018] QCAT 15

PARTIES:

Ian Perkins
Kylie Perkins
(Applicants)

Queensland Building and Construction Commission
(First Respondent)

Platinum Construction Solutions Pty Ltd
(Second Respondent)

APPLICATION NUMBER:

GAR043-16

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Traves

DELIVERED ON:

23 January 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for costs is dismissed.

2. Each party bear their own costs.

CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – construction of s 100 and s 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and rule 86 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) – discretion to award costs in administrative review matters to a successful applicant – whether usual position in s 100 should be displaced – whether the interests of justice require a costs order to be made – Calderbank offer – indemnity costs Acts Interpretation Act 1954 (Qld), s 14A Queensland Building and Construction Commission Act 1991 (Qld), s 71, s 72, s 86, s 87 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 74, s 100, s 102, s 105, s 106 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), rule 86 Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 Coral Homes Qld Pty Ltd v Queensland Building Services Authority [2013] QCAT 510 Jones & Anor v Millward & Anor [2005] QCA 76 McEwen v Barker Builders Pty Ltd [2010] QCATA 49 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Stuart v Queensland Building and Construction Commission [2016] QCATA 135 Tamawood Limited v Paans [2005] QCA 111
REPRESENTATIVES:
APPLICANTS:	Mr Peter Somers, Counsel for Ian and Kylie Perkins
FIRST RESPONDENT:	Mr Earl Tan, Senior principal lawyer, Queensland Building and Construction Commission
SECOND RESPONDENT:	Mr Jim Feehely, Jim Feehely Project Law, for Platinum Construction Solutions

APPEARANCES:

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

Introduction

On 21 August 2017 the tribunal made orders setting aside the decision of the QBCC to disallow the Perkins’ claim under the statutory insurance scheme and declaring the contract between the Perkins and Platinum Construction Solutions Pty Ltd (PCS) “properly terminated” in accordance with clause 27 of the scheme policy. A further order was made permitting the parties to make submissions with respect to costs.
The Perkins and the QBCC made submissions as to costs but PCS did not. The QBCC’s submissions were received out of time. The solicitors for the Perkins have objected to the submissions on the basis they were filed approximately two months late. It appears the QBCC were waiting for further directions from the tribunal. I have decided to accept the submissions, particularly in view of the fact that none were received from PCS and that the…

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: [2018] QCAT 15
Decision Date: 23 January 2018

CaseChat Overview and Summary

Perkins and the Queensland Building and Construction Commission were involved in a dispute before the court. The nature of the conflict revolved around the construction of specific sections of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and the Queensland Civil and Administrative Tribunal Rules 2009 (Qld). The court had to determine whether the usual position in section 100 should be displaced and whether the interests of justice necessitated a costs order to be made, particularly in light of a Calderbank offer and indemnity costs. This case highlights the intricate process of navigating administrative review matters within the Queensland legal system.

The court was tasked with interpreting the relevant statutory provisions and rules, specifically sections 100 and 102 of the Queensland Civil and Administrative Tribunal Act 2009 and rule 86 of the Queensland Civil and Administrative Tribunal Rules 2009. The central legal issue was whether the discretion to award costs in administrative review matters to a successful applicant should be exercised in this instance, considering the principles outlined in the statutes and rules. Additionally, the court needed to assess the implications of a Calderbank offer on the costs determination, as well as the broader context of indemnity costs.

In rendering its decision, the court meticulously examined the statutory framework and the specific circumstances of the case. The court concluded that the usual position in section 100 should not be displaced, and the interests of justice did not warrant a costs order. Furthermore, the court considered the Calderbank offer and the principle of indemnity costs, ultimately deciding that the application for costs should be dismissed. Each party was ordered to bear their own costs, reflecting the court's assessment of the equities of the case and the relevant legal principles.

Orders

Orders of the court

1. The application for costs is dismissed.

2. Each party bear their own costs.

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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